Murder and manslaughter are the two types of homicide that exist under English Law. The key difference is that murder requires the intention to do serious bodily harm to the victim. Where that intention is not present then the appropriate charge will be manslaughter. There are different types of manslaughter which attempt to reflect the different possible contexts in which a killing may take place.
The evolution of murder arises from common law. The key elements are as follows a person of sound mind and discretion (i.e. sane); unlawfully kills (i.e. not self-defence or other justified killing) any reasonable creature (human being); in being (born alive and breathing through its own lungs – Rance v Mid-Downs Health Authority (1991) 1 All ER 801 and AG Ref No 3 of 1994 (1997) 3 All ER 936; under the Queen’s Peace (not in war-time); with intent to kill or cause grievous bodily harm (GBH).
So, the actus reus: defendant causes the death of a human bring outside of the context of military action (in the Queen’s peace). The mens rea is the intent to kill or cause Serious Bodily Harm. Where the intention of the defendant was to cause something less than serious bodily harm then manslaughter is the appropriate charge.
Ricky is accused of murder. At 1900 on the 21st of July, he was involved in a fight at Manchego Nightclub. The victim, Marcus, bumped into Ricky and spilled his drink. Ricky threw a punch. Marcus fell backwards and hit his head on the corner of the bar. The prosecution have served evidence that prior to throwing the punch, Ricky placed a knuckle duster in his fist. Which of the following reflects the true position:
- Ricky cannot be guilty of murder. The fact that Marcus bumped into him amounts to provocation which means the charge should immediately be dropped to manslaughter.
- Ricky is likely to face a trial on a count of murder. The evidence regarding the knuckle duster is relevant to the issue of his intention. It will be a matter of law for the Judge to decide as to whether the prosecution has proved its case beyond reasonable doubt at the close of the case.
- Ricky cannot be guilty of murder. The knuckle duster is irrelevant to the issue of Ricky’s intention. It can only, as a matter of law, be relevant to proving the actus reus of the allegation.
- Ricky is likely to face a trial on a count of murder. The evidence regarding the knuckle duster is relevant to the issue of his intention. It will be a matter of law for the Judge to decide, when the prosecution closes their case, as to whether the evidence is sufficient for the jury to safely convict. It will be a matter for the jury to decide whether the case is proven beyond reasonable doubt at the close of the case.
Diminished responsibility is a statutory defence, which is set out in section 2 of the Homicide Act of 1957.
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.
(1A) Those things are—
(a) to understand the nature of D’s conduct;
(b) to form a rational judgment;
(c) to exercise self-control.
(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.
There are accordingly four elements which need to be proven: an abnormality of mental functioning, which arose from a recognised medical condition and substantially impaired the defendant’s ability to understand the nature of their conduct and or form a rational judgment or exercise self-control and provides an explanation for the defendant’s act or omission in doing the killing.
In the recent case of R v Golds  UKSC 61 the Supreme Court was asked to clarify the meaning of the word ‘substantially’ which has been the subject of inconsistent variation over the years. In this case, the defendant stabbed his partner to death in a frenzied knife attack having argued with her on and off for much of the day. Psychiatrists agreed that that there was abnormality of the mind but disagreed as to its cause. The Court held that the meaning of “substantial” was an “impairment of consequence or weight” and not “any impairment which is greater than merely trivial”. In this case, the defendant had failed to discharge the burden of whether or not the impairment was the significant contributory factor of the death and hence the question of whether such impairment was ‘substantial’ was not actually material to the case and the appeal was dismissed.
Loss of Control
Loss of Control is a second partial defence which reduces murder to voluntary manslaughter.
The definition of loss of control is contained in section 54 of the Criminal Justice Act 2009 which sets out the three components: defendant must lose self-control – the loss of control must have a qualifying trigger and that a person of the defendant’s sex and age which a normal level of tolerance and self-restraint and in the circumstances of the defendant might have reacted in the same or similar way as the defendant did.
The section reads in full:
(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.
(4) Subsection (1) does not apply if, in doing or being a party to the killing, D acted in a considered desire for revenge.
The conventional burden of proof in criminal cases applies to loss of control. The effect is that provided the accused can produce some evidence that raises the defence, the burden will revert back to the prosecution to disprove loss of control beyond reasonable doubt.
The defendant must lose control, it need not be sudden, includes a reaction to a buildup of events and not if in a considered desire for revenge.