Any opinions, findings, conclusions or recommendations expressed in this material are those of the authors and do not necessarily reflect the views of LawTeacher.
The legal principles and case laws used shall support the understanding between the differences of murder and manslaughter. Comparing the two main classes of manslaughter and discussing the special defences used for murder and manslaughter. Evaluating the legal principles and the case laws for this defences. With an analyse on the theory of sentencing for both offences with a discussion for the minimum life tariff concerning the life sentence.
Analyse, using legal principles and case law, the difference between murder and manslaughter.
Brookman (2005) suggests homicide is the term used to refer to an unlawful killing when a sound minded person unlawfully takes another person’s life.
CPS (2017) cited within the term there are three classifications – Murder, Manslaughter and Grievous bodily harm as often abbreviated as GBH.
For a homicide case to be considered a murder, the person must have the intention to kill.
Hunt (2000) cited a great example is the case of R. v. Vickers  2 QB 664 which emphases the ‘express malice’, determined by the ‘malice aforethought’ or the mens rea, which relates to the mental part of a crime or to induce ‘great bodily harm’ such as the case of R. v. Cunningham  AC 566 by ‘implied malice’.
e-law resources (n.d. a) stated, However, in some cases is not enough to prove the unlawful act was committed alone; therefore, their criminal state of mind should be considered. Four general states of mind usually incorporate them:
Hunt (2000) cited the intention whether the person intended or not to cause the unlawful consequence and achieved the purpose by a direct intent such as R. v. Moloney  AC 905.
Hunt, M. (2000) argues that however, the unlawful act is not only covering the direct intent by the ‘desire death’, and by proving that causing death by fear was enough to guarantee a conviction such as in R v Hayward  21 Cox CC 692 but extending this offence to oblique intent ‘foreseen death’ such as R. v. Woollin  AC 82.
Hunt, M. (2000) argues recklessness when an unjustified risk has been committed, whether the risk was justified or not, this can be by either the objective such as in R v Lawrence Stephen)  AC 510 or subjective in R. v. Sangha  2 All ER 385. Therefore, the subjective form cannot be used to avoid the liability. However, the subjective perception is a relevant point in deciding if the liability for the criminal offence was committed by taking the risk. This measure emphasis the importance of fault and the defendant responsibility.
Hunt (2000) cited negligence has a minor role and is often used to refer to some driving offences and has the objective standard such as in McCrone v. Riding  1 All ER 137, the offence relates to gross negligence that the defendant should owe a duty of care or in breach of duty.
Hunt (2000) argues that liability are offences that relate to health and safety aimed at business as in Gammon (Hong Kong) Ltd v Attorney-General of Hong Kong  AC 1. and at some driving offices such as speeding. The liability has a controversial use by the criminal law, and the person could be liable to consequence even knowing they have no fault. However, the measure is acceptable as it brings practical benefits and protection.
e-law resources (n.d. b) cited the state of mind leads to the actus reus of murder which relates to the physical part of a crime and includes the conduct, circumstance and consequence. Which consists of the unlawful act that causes the death of another person in the Queen’s peace.
e-law resources (n.d. b) stated the unlawful homicide by causing a person’s death can be either by act or omission in Gibbins v Proctor   and the causation should be recognised. Although, in some cases, this act can be lawful classified.
Law Teacher (2013 c) cited there are three possibilities can be used as a reason for a person to be allowed to use reasonable force. By defending himself from an attack in R v Bird  1 WLR 816, prevent an attack as R v Rose  15 Cox 540 or defend his property in R v Hussey  18 Cr App R 160. However, if an excessive force used, the defendant could be held liable such as in the case of R v Williams Gladstone  78 Cr App R 276.
In duty policeman or soldiers, however, killing a prisoner of war can be categorised as murder.
Brookman (2005) states that murder is under common law and falls into a mandatory life sentence, murder and manslaughter share the same actus reus principles; the guilty act. However, there are three partial defences in which can be used to reduce a possible conviction from murder into Voluntary Manslaughter under the Homicide Act 1957.
Compare the various classes of manslaughter
Brookman (2005) suggest that manslaughter is an unlawful killing not classified as murder. However, the offence is ‘very broad and ranges between the edges of murder to the accidental death’, (Law Commission, 1996: No. 237, p.1) for this reason the punishment for this offence is generally less than murder. The offence is composed of two main categories: Voluntary Manslaughter and Involuntary Manslaughter.
Law Teacher (2013 a) suggests the offence is under common law. However, it has been revised by the courts for a series of cases and The Homicide Act 1957 gave a statutory power by adding a further two offences under this category. And refers to cases where the accuser did not intend to cause death or to cause serious harm ‘without malice aforethought’, the absence of malice aforethought suggests that manslaughter has less moral blame than murder and a good example is the case of R. v. Larkin  29 Cr App R 18. Therefore, under some circumstances in which the law refers as mitigating it varies by the gravity of the offence committed.
Law Teacher (2013 b) refer to cases where there was no intention to kill or to cause serious harm, but under some circumstances, the law attributes as the person who caused death was responsible. A person could be convicted by involuntary manslaughter in two ways; constructive ‘unlawful act’ or by reckless or gross negligence.
Hunt, M. (2000) cited that constructive manslaughter occurs when the defendant commits an unlawful and dangerous act likely to cause the physical harm and death is the de accidental result of this act in R v Church  1 QB 59.
Reckless occurs from the person’s conduct which caused the death, the awareness that this action could result in death or serious harm and an unreasonable risk happened.
Hunt, M. (2000) cited that gross negligence occurs when the defendant causes death through careless or incompetence as R. v. Adomako  3 WLR 288.
Evaluate the legal principles and case law relevant to the defences.
Law Teacher (2013 c) argues that diminished responsibility is a plea defence under the murder charge, but also falls under voluntary manslaughter, therefore reducing a possible sentence from murder to voluntary manslaughter. Defendants suffering from diminished responsibility should not be convicted for murder, as the person could significantly misjudge his mental state for his acts or omission by doing or by being part of the act such in R v Byrne  case.
e-law resources (n.d. b) cited that loss of control was established by s.54 of the Coroners and Justice Act 2009, although only started in October 2010 and crimes committed before continued to fall under the defence of provocation.
Hunt (2000) points out under the defence of provocation the defendant must have the two elements to be satisfied: the subjective and the objective.
The subjective element is the results together, from acts and words that led a person to lose the self-control and must be sudden and temporary such as R v Duff , the aiming is to identify the uncountable act to deliberate acts seeking revenge. However, there are many problems especially when woman hesitate in cases against abusive companion one good example was the case of R v Ahluwalia  resulting in that any provocation history can be relevant.
Analyse the theory of sentencing in relation to murder and manslaughter.
Law Teacher (2013 d) specify five purposes aiming to justify the punishments. Deterrence, rehabilitation, protection, retribution and symbolic denunciation.
The public protection is the most crucial and considerable part for punishment, as he aims for imprisonment to assist in immobilising the offender’s future actions, therefore, protecting the public. However, the effectiveness of the process has controversial issues as offenders are more likely to re-offend after release from prison or to commit more serious crimes. On the other hand, not preventing the crimes to occur but only deferring. The Home Office Handbook, The Sentence of the Court (1986) states that ‘recorded crime rates would not be substantially affected if fewer offenders were sent to prison’. Therefore, reinforcing the fragility of the process. Nevertheless, the imprisonment of an offender can have a positive effect by protecting the society from a potentially more serious crime.
The sentencing and case laws had massively impacted the way law operates, demonstrating it works relatively close to the offender’s acts and the gravity of the case, taking in consideration all the aspects of the unlawful act committed. The criminal system must persist in maintaining public confidence by implementing the appropriated strategies for individuals’ offences. The context referring the life sentence and minimum sentencing. Furthermore, while the custody could be the only option, the effectiveness of the process demonstrates it should only be used only necessary and a more effective should be a non-custodial alternative.
- Brookman, F. (2005) Understanding Homicide. Reprint, London: SAGE Publications Ltd, 2013 (2).
- Hunt, M. (2000) Sweet & Maxwell Study Guide, A Level and AS Level Law, London: Sweet & Maxwell Ltd.
- e-law resources (n.d. a) Actus reus in criminal law. Available at: http://e-lawresources.co.uk/Actus-reus.php (Assessed: 29 November 2018)
- e-law resources (n.d. b) The law of murder. Available at: http://e-lawresources.co.uk/The-law-of-murder.php (Assessed: 29 November 2018)
- e-law resources (n.d. c) The Defence of Loss of Control – Voluntary Manslaughter. Available at: http://e-lawresources.co.uk/Loss-of-control.php (Assessed: 06 December 2018)
- Law Teacher (2013 a) Self Defense Cases – Case Summaries. Available at: https://www.lawteacher.net/cases/self-defence.php?vref=1 (Assessed: 04 December 2018)
- Law Teacher (2013 b) Unlawful homicide and police powers. Available at: https://www.lawteacher.net/free-law-essays/civil-law/unlawful-homicide-and-police-powers.php?vref=1 (Accessed 6 December 2018)
- Law Teacher (2013 c) Principles of Sentencing Lecture. Available at: https://www.lawteacher.net/lecture-notes/principles-of-sentencing.php?vref=1 (Accessed: 8 December 2018)
- CPS (2017) Homicide: Murder and Manslaughter. Available at: https://www.cps.gov.uk/legal-guidance/homicide-murder-and-manslaughter (Assessed: 05 December 2018)
- R. v. Vickers  2 QB 664. Cited in.
- Hunt, M. (2000) Sweet & Maxwell Study Guide, A Level and AS Level Law, London: Sweet & Maxwell Ltd.
- R. v. Cunningham  AC 566. Available at: http://www.e-lawresources.co.uk/R-v-Cunningham-%5B1982%5D.php (Assessed: 06 December 2018)
- R. v. Moloney  AC 905. Available at: http://e-lawresources.co.uk/R-v-Moloney.php (Assessed: 06 December 2018)
- R. v. Hayward  21 Cox CC 692. Available at: https://www.lawteacher.net/cases/r-v-hayward.php (Assessed: 06 December 2018)
- R. v. Woollin  AC 82. Available at: http://www.e-lawresources.co.uk/R-v-Woollin.php (Assessed: 06 December 2018)
- R. v. Lawrence Stephen  AC 510. Available at: http://www.e-lawresources.co.uk/R-v-Lawrence-(Stephen)-.php (Assessed: 06 December 2018)
- R. v. Sangha  2 All ER 385. Available at: http://www.e-lawresources.co.uk/R-v-Sangha.php (Assessed: 06 December 2018)
- McCrone v. Riding  1 All ER 137. Available at: https://swarb.co.uk/mccrone-v-riding-1938/ (Assessed: 06 December 2018)
- Gammon (Hong Kong) Ltd v Attorney-General of Hong Kong  AC 1. Available at: http://www.e-lawresources.co.uk/Gammon-%28Hong-Kong%29-v-Attorney-General-of-Hong.php (Assessed: 06 December 2018)
- Gibbins v Proctor  . Available at: https://webstroke.co.uk/law/cases/r-v-gibbons-and-proctor-1918 (Assessed: 06 December 2018)
- R. v. Bird  1 WLR 816. Available at: http://e-lawresources.co.uk/R-v-Bird.php (Assessed: 06 December 2018)
- R. v. Rose  15 Cox 540. Available at: https://www.lawteacher.net/cases/self-defence.php (Assessed: 06 December 2018)
- R. v. Hussey  18 Cr App R 160. Available at: https://swarb.co.uk/rex-v-hussey-1924/ (Assessed: 06 December 2018)
- R. v. Williams Gladstone  78 Cr App R 276. Available at: http://www.e-lawresources.co.uk/R-v-Gladstone-Williams.php (Assessed: 06 December 2018)
- R. v. Larkin  29 Cr App R 18. Available at: http://e-lawresources.co.uk/R-v-Larkin.php (Assessed: 06 December 2018)
- R. v. Church  1 QB 59. Available at: https://www.lawteacher.net/cases/r-v-church.php (Assessed: 06 December 2018)
- R. v. Adomako  3 WLR 288. Available at: http://e-lawresources.co.uk/R-v-Adomako.php (Assessed: 06 December 2018)
- R. v. Byrne  2 QB 396. Available at: http://e-lawresources.co.uk/R-v-Byrne.php (Assessed: 06 December 2018)
- R. v. Duff  1 All ER 932. Available at: http://www.e-lawresources.co.uk/R-v-Duffy.php (Assessed: 08 December 2018)
- R. v. Ahluwalia  96 Cr App R 133. Available at: http://e-lawresources.co.uk/R-v-Ahluwalia.php (Assessed: 08 December 2018)
- Epimetheus (2017) Murder, Manslaughter, Homicide, a killing differences explained in less than 5 minutes (video) Available at: https://www.youtube.com/watch?v=WDA2cE3YcIA (Assessed: 29 November 2018)
- Lawtons solicitors (2016) Serious Violence & Assault, The defense’s for murder under UK law. Available at: https://www.lawtonslaw.co.uk/resources/murder/ (Assessed: 05 December 2018)
Related ServicesView all
DMCA / Removal Request
If you are the original writer of this essay and no longer wish to have the essay published on the UK Essays website then please: