Differences Between Murder and Manslaughter Charges

Introduction

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.

Murder

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 [1957] 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 [1982] 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
[1985] 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 [1908] 21 Cox CC 692 but extending this offence to oblique intent ‘foreseen death’ such as R. v. Woollin [1999] 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) [1982] AC 510 or subjective in R. v. Sangha [1988] 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 [1938] 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 [1985] 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 [1918] [2] 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 [1985] 1 WLR 816, prevent an attack as R v Rose [1884] 15 Cox 540 or
defend his property in R v Hussey [1924] 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 [1984] 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

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.

Voluntary
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 [1942] 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.

Involuntary
Manslaughter

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 [1966] 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 [1994] 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 [1960] 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 [1949], 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 [1992]
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.

Protection

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.

Conclusion

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. 

References

• 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 [1957] 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 [1982] AC 566. Available at: http://www.e-lawresources.co.uk/R-v-Cunningham-%5B1982%5D.php (Assessed: 06 December 2018)
• R. v. Moloney [1985] AC 905. Available at: http://e-lawresources.co.uk/R-v-Moloney.php (Assessed: 06 December 2018)
• R. v. Hayward [1908] 21 Cox CC 692. Available at: https://www.lawteacher.net/cases/r-v-hayward.php (Assessed: 06 December 2018)
• R. v. Woollin [1999] AC 82. Available at:  http://www.e-lawresources.co.uk/R-v-Woollin.php (Assessed: 06 December 2018)
• R. v. Lawrence Stephen [1982] AC 510. Available at: http://www.e-lawresources.co.uk/R-v-Lawrence-(Stephen)-[1982].php (Assessed: 06 December 2018)
• R. v. Sangha [1988] 2 All ER 385. Available at: http://www.e-lawresources.co.uk/R-v-Sangha.php (Assessed: 06 December 2018)
• McCrone v. Riding [1938] 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 [1985] 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 [1918] [2]. Available at: https://webstroke.co.uk/law/cases/r-v-gibbons-and-proctor-1918 (Assessed: 06 December 2018)
• R. v. Bird [1985] 1 WLR 816. Available at: http://e-lawresources.co.uk/R-v-Bird.php (Assessed: 06 December 2018)
• R. v. Rose [1884] 15 Cox 540. Available at: https://www.lawteacher.net/cases/self-defence.php (Assessed: 06 December 2018)
• R. v. Hussey [1924] 18 Cr App R 160. Available at: https://swarb.co.uk/rex-v-hussey-1924/ (Assessed: 06 December 2018)
• R. v. Williams Gladstone [1984] 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 [1942] 29 Cr App R 18. Available at: http://e-lawresources.co.uk/R-v-Larkin.php (Assessed: 06 December 2018)
• R. v. Church [1966] 1 QB 59. Available at: https://www.lawteacher.net/cases/r-v-church.php (Assessed: 06 December 2018)
• R. v. Adomako [1994] 3 WLR 288. Available at: http://e-lawresources.co.uk/R-v-Adomako.php (Assessed: 06 December 2018)
• R. v. Byrne [1960] 2 QB 396. Available at: http://e-lawresources.co.uk/R-v-Byrne.php (Assessed: 06 December 2018)
• R. v. Duff [1949] 1 All ER 932. Available at: http://www.e-lawresources.co.uk/R-v-Duffy.php (Assessed: 08 December 2018)
• R. v. Ahluwalia [1993] 96 Cr App R 133. Available at: http://e-lawresources.co.uk/R-v-Ahluwalia.php (Assessed: 08 December 2018)

Bibliography

• 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)