Unit 3

Murder and voluntary manslaughter
Homicide: is the killing of another person. Includes murder, manslaughter, causing death by
dangerous driving and infanticide
The offences of unlawful manslaughter
Murder
 murder carries a mandatory sentence of life imprisonment, manslaughter carries a
discretionary life sentence
 Murder carries a higher penalty than manslaughter to reflect the severity of the offence
 Sir Edward coke-Murder is committed when a defendant unlawfully causes the death of
a person with an intention to kill or cause GBH
 Murder is when a man of sound memory, and of the age of discretion, unlawfully killeth
within any county of the realm any reasonable creature in rerum natura under the king’s
peace, with malice aforethought, either expressed by the party or implied by law, [so as
the party wounded, or hurt, etc. die of the wound or hurt, etc. within a year and a day
after the same
The elements of murder
Murder
Actus reus Mens rea
 unlawfully  with malice aforethought (intention to kill or cause

 causes death GBH)
 of a human being
 under the Queen’s
peace
First degree murder
The offence of first degree murder carries a mandatory life sentence. It would be committed
where the defendant:
1. kills intentionally; or
2. kills with an intention to do serious injury, coupled with an awareness of a serious risk of
causing death.
The mens rea of this offence requires the prosecution to prove either that the defendant
intended to kill or that he intended to cause serious injury. If the latter is proved, there is an
additional requirement that the defendant recognised that there was a serious risk of
causing death. If the defendant is not aware of a serious risk of causing death, he will not be
liable for first degree murder, but will be liable for second degree murder.
Second degree murder
The maximum sentence for second degree murder is a discretionary life sentence. This
offence would be committed where the defendant:
1. kills and intends to do serious injury; or
2. kills with an intention to cause some injury or a fear or risk of injury, and was aware of a
serious risk of causing death; or
3. kills and there is a partial defence to what would otherwise be first degree murder.
The offence of second degree murder is a lesser offence than first degree murder. Second
degree murder can be committed where the defendant kills and intends to do serious injury.
There is no need to prove that the defendant was aware of a serious risk of causing death.
Second degree murder can alternatively be committed where the defendant kills and
intends to cause either some injury or a fear or risk of injury. It must also be proved that the
defendant was aware of a serious risk of causing death. The final way in which second
degree murder can be committed is where the defendant kills and has a partial defence.
Manslaughter
The maximum sentence for manslaughter is a discretionary life sentence. This offence would
be committed where the defendant:
1. kills through gross negligence as to a risk of causing death; or
2. kills through a criminal act:
A. intended to cause injury; or
B. where there was an awareness that the act involved a serious risk of causing injury;
3. participates in a joint criminal venture in the course of which another participant
commits first or second degree murder, in circumstances where it should have been
obvious that first or second degree murder might be committed by another participant.
Manslaughter is a lesser offence than second degree murder. This offence encompasses
forms of gross negligence manslaughter and unlawful act manslaughter. It also
encompasses liability on the basis of a joint venture, where the perpetrator commits first or
second degree murder and it should have been obvious that first or second degree murder
might be committed.
Voluntary manslaughter
Loss of control
Section 54, Coroners and Justice Act 2009
1. Where a person (‘D’) kills or is a party to the killing of another (‘V’), D is not to be
convicted of murder if—
(a) D’s acts and omissions in doing or being a party to the killing resulted from D’s loss of
self-control,
(b) the loss of self-control had a qualifying trigger, and
(c) a person of D’s sex and age, with a normal degree of tolerance and self-restraint and in
the circumstances of D, might have reacted in the same or in a similar way to D.
2. For the purposes of subsection (1)(a), it does not matter whether or not the loss of
control was sudden.
3. In subsection (1)(c) the reference to ‘the circumstances of D’ is a reference to all of D’s
circumstances other than those whose only relevance to D’s conduct is that they bear on
D’s general capacity for tolerance or self-restraint.
three main components:
1. the defendant must lose self-control;
2. the loss of control must have a qualifying trigger; and
3. a person of the defendant’s sex and age, with a normal degree of tolerance and self-
restraint and in the circumstances of the defendant, might have reacted in the same or
in a similar way as the defendant did.
Qualifying triggers
The fear trigger: fear of serious violence
 The defendant’s fear of serious violence is subjectively assessed such that the defendant
must have a genuine fear of serious violence; his fear need not be reasonable. The fear
of serious violence must be from the victim against the defendant or another identified
person (s.55(3)). Thus, it may not be from an unidentified person or group. The inclusion
of this new trigger also inevitably results in a degree of overlap between the defences of
loss of control and self-defence, although ‘an issue of self defence by no means carries
with it an issue of loss of control’
The anger trigger: justifiable sense of being seriously wronged
 The anger trigger under s.55(4) applies where the defendant’s loss of control is
attributable to things said and/or done which amounted to circumstances of an
extremely grave character and caused the defendant to have a justifiable sense of
having been seriously wronged. Anger was a sufficient basis for a loss of control under
the old common law, the only requirement then being that the loss of control was
‘sudden and temporary’ (Duffy (1949)). One problem with the 2009 Act is that terms
such as ‘extremely grave character’ and ‘justifiable sense of having been seriously
wronged’ have not been defined. These issues are for the judge to consider at the end of
the evidence, and if the defence is left to the jury, the jury will then determine them
The reasonable man test
 the defendant’s reaction is to be compared to that of a person with a ‘normal degree of
tolerance and self-restraint’ sharing the age and sex of the defendant.
Diminished responsibility
Section 2, Homicide Act 1957 (as amended)
1. A person (‘D’) who kills or is a party to the killing of another is not to be convicted of
murder if D was suffering from an abnormality of mental functioning which—
(a) arose from a recognised medical condition,
(b) substantially impaired D’s ability to do one or more of the things mentioned in
subsection (1A), and
(c) provides an explanation for D’s acts and omissions in doing or being a party to the killing.
2. (1A) Those things are—
(a) to understand the nature of D’s conduct;
(b) to form a rational judgment;
(c) to exercise self-control.
3. (1B) For the purposes of subsection (1)(c), an abnormality of mental functioning
provides an explanation for D’s conduct if it causes, or is a significant contributory factor
in causing, D to carry out that conduct.
The defence must prove that the defendant:
1. was suffering from an abnormality of mental functioning;
2. arising from a recognised medical condition;
3. which substantially impaired the defendant’s ability to understand the nature of his
conduct, form a rational judgement, or exercise self-control; and
4. which provides an explanation for the defendant’s acts and omissions in doing or being
party to the killing.
Involuntary manslaughter
Unlawful act of manslaughter
Unlawful act manslaughter arises where the defendant intentionally commits an unlawful act
which a reasonable person would recognise exposes the victim to the risk of some harm and
the victim dies as a result. Unlawful act manslaughter is also known as ‘constructive
manslaughter’ because the defendant’s liability for manslaughter is constructed out of his
liability for a lesser offence.
The elements of unlawful act manslaughter
Gross negligence manslaughter

 If the defendant negligently causes the death of a person, he may be prosecuted for the
criminal offence of gross negligence manslaughter and be subject to punishment if
convicted
 Gross negligence manslaughter arises where the defendant causes the death of the
victim through the breach of a duty of care owed to that victim. The prosecution must
establish that a reasonably prudent person would have foreseen that the defendant’s
breach exposed the deceased to an obvious and serious risk of death
The Court of Appeal in R v Rose [2017] EWCA Crim 1168 held that the prosecution must
prove that:
1. the defendant owed an existing duty of care to the victim;
2. the defendant negligently breached that duty of care;
3. it was reasonably foreseeable that the breach of that duty gave rise to a serious and
obvious risk of death;
4. the breach of that duty caused the death of the victim;
5. the circumstances of the breach were truly exceptionally bad and so reprehensible as to
justify the conclusion that it amounted to gross negligence and required criminal
sanction.

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Murder and voluntary manslaughter

Actus reus Mens rea

 unlawfully  with malice aforethought (intention to kill or cause

Gross negligence manslaughter

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