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Published: Fri, 02 Feb 2018

Murder is not defined

The Dividing Line Between The Offences Of Murder And Involuntary Manslaughter Is Unacceptably Blurred And Does Not Ensure That Only The Most Morally Culpable Offenders Receive The Mandatory Life Sentence.

Critically discuss.

Murder is not defined wholly in statute, but the definition of the actus reus required most often cited is that of Sir Edward Coke in Institutes of the Laws of England (1797), which states that “Murder is when a man of sound memory, and of the age of discretion, unlawfully killeth within any country 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”. It should be noted, however, that the condition that death occur “within a year and a day” is no longer a requirement since the introduction of the Law Reform (Year and a Day Rule) Act 1996 in which Section 1 states that “The rule known as the “year and a day rule” (that is, the rule that, for the purposes of offences involving death and of suicide, an act or omission is conclusively presumed not to have caused a person’s death if more than a year and a day elapsed before he died) is abolished for all purposes”. The lack of any complete definition of murder has been the subject of much criticism, such as that of Lord Mustill in the Attorney General’s Reference (No 3 of 1994) [1998] AC 245, in which he states that “one could expect a developed system to embody a law of murder clear enough to yield an unequivocal result on a given set of facts, a result which conforms with apparent justice and has a sound intellectual base. This is not so in England, where the law of homicide is permeated by anomaly, fiction, misnomer and obsolete reasoning”.

Involuntary manslaughter occurs where a defendant did not have the mens rea (latin for “guilty mind”) required to commit murder, but death or serious injury was caused through recklessness or criminal negligence. The test for recklessness has developed from the case of R v Cunningham [1957] 2 QB 396 which held that the use of the word “maliciously” in section 23 the Offences Against the Person Act 1861 contained a subjective test, Byrne J stated that “in any statutory definition of a crime, malice must be taken not in the old vague sense of wickedness in general but as requiring either (1) An actual intention to do the particular kind of harm that in fact was done; or (2) recklessness as to whether such harm should occur or not (i.e., the accused has foreseen that the particular kind of harm might be done and yet has gone on to take the risk of it)”. However, R v Caldwell [1982] AC 341, and the later cases of Elliot v C (a minor) (1983) 2 AER 1005 and R v Reid (1992) 3 AER 673, developed an objective approach as to what constituted recklessness, in R v Caldwell [1982] AC 341, Lord Diplock stated that a person should be considered to have acted recklessly when “(1) he does an act which in fact creates an obvious risk that property will be destroyed or damaged and (2) when he does the act he either has not given any thought to the possibility of there being any such risk or has recognised that there was some risk involved and has nonetheless gone on to do it”. This “Caldwell-style recklessness” was applied until the case of R v G and Another [2003] UKHL 50, in which Lord Bingham declared that a person is reckless if;

  • (a) knowing that there is a risk that an event may result from his conduct or that a circumstance may exist, he takes that risk, and

  • (b) it is unreasonable for him to take it having regard to the degree and nature of the risk which he knows to be present

This decision reverted back to the subjective test established in the verdict of R v Cunningham, and allows defendants to be judged on the basis of their age, experience and understanding rather than on the standard of what a hypothetical reasonable person would have done in the same scenario.

Involuntary manslaughter is usually split into two categories, constructive, or unlawful act, manslaughter and criminally negligent, also known as gross negligence, manslaughter. Constructive manslaughter occurs when someone kills another whilst committing a dangerous act, the malice inherent in the dangerous act is then transferred to the killing, as held in R v Creamer [1966] 1 Q.B. 72, as per Lord Parker C.J. “a man is guilty of involuntary manslaughter when he intends an unlawful act and one likely to do harm to the person and death results which was neither foreseen nor intended”, in order to establish constructive manslaughter, the defendant must have committed an unlawful and dangerous act, and this act must have caused the harm in question. The case of R v Scarlett [1993] 4 ALL ER 629 established that the act that led to the harm must be an identifiable criminal offence, this was later upheld in R v Kennedy [2007] UKHL 38, in which it was stated that “to establish the crime of unlawful act manslaughter it must be shown, among other things not relevant to this appeal, (1) that the defendant committed an unlawful act, (2) that such unlawful act was a crime and (3) that the defendant’s unlawful act was a significant cause of the death of the deceased”. The unlawful cannot merely be the negligent performance of a legal act, as stated in Andrews v DPP [1937] A.C. 576. It can, however, be unlawful not to perform an act, if that omission then causes harm to another, as in R v Senior [1899] 1 QB 283. In order for the act to satisfy the “dangerous” criteria, it must fulfil the requirements laid down in R v Church [1966] 1 Q.B. 59, which overturned the principle that any negligent act could be constructive manslaughter, and established the reasonable man test, which asks whether a reasonable person would recognise the act as containing a risk of harm, this was affirmed in DPP v Newbury [1977] A.C. 500. Gross negligence manslaughter occurs where someone causes death through extreme carelessness or incompetence; the requirements of gross negligence manslaughter were laid down in R v Bateman (1927) 19 Cr. App. R. 8, as;

  • The defendant owed a duty of care to his victim

  • This duty was breached

  • The breach was the cause of death

  • The negligence was gross, in that it showed a blatant disregard for human life, and the safety of others to amount to a crime and deserve punishment

R v Seymour [1983] 2 A.C. 493 introduced a test of “recklessness” which states that the defendant will have committed gross negligence manslaughter where the act created an obvious and serious risk of personal injury or damage to property and when performed, no thought had been given to the possibility of harm, or none was recognised, but had nevertheless gone on to do it anyway. This removed the requirement that the negligence be “gross”, but its conditions were too easily satisfied and the decision was later overturned in R v Adomako [1995] 1 AC 171.

The Law Commission’s report Legislating the Criminal Code: Involuntary Manslaughter (1996) outlined a number of major problems relating to the wide scope of involuntary manslaughter, particularly that cases involving immeasurably dangerous behaviour fall just short of murder, meaning that they serve a lesser sentence when perhaps they should serve significantly more. The Law Commission also suggested that many cases involving unlawful act manslaughter involve a relatively minor mistake on behalf of the defendant, and whilst this shouldn’t be described as manslaughter at all, they get the same sentence as someone who came within a hair’s breadth of murder. The Commission also considered it to be wrong for a person to be liable for a death he neither intended nor foresaw, and the outcome would not have been foreseeable by a reasonable person in the same situation.

Many reforms have been advocated, most often by the Law Commission, Legislating the Criminal Code: Involuntary Manslaughter (1996) recommends an offence of killing by gross carelessness which would be committed if a person by his or her conduct causes the death of another, a risk that his or her conduct will cause death or serious injury would be obvious to a reasonable person in his or her position and so long as he or she is capable of appreciating that risk at the material time, and either

(a) his or her conduct falls far below what can reasonably be expected of him or her in the circumstances, or

(b) he or she intends by his or her conduct to cause some injury, or is aware of, and unreasonably takes, the risk that it may do so, and the conduct causing (or intended to cause) the injury constitutes an offence.

The Commission also suggested the introduction of first and second degree murder, with the “first degree” having need of an intention to seriously injure or cause the death of someone, and the “second degree” would consist of reckless behaviour that could reasonably be seen to cause severe harm. It is thought that this would go some way towards fixing the fault with the current system that groups together offenders that have acted out of malice and those that have merely acted irresponsibly.

It has been noticed that the offence of constructive manslaughter has too wide a scope, and some have suggested that this has resulted in confusion as to when a crime is murder, and when it is involuntary manslaughter.

On the other hand, the distinction between murder and involuntary manslaughter is not blurred at all, as murder requires not just the actus reus (guilty act) but also the mens rea (guilty mind), which is the intent to seriously hurt and cause the death of another person, whereas involuntary manslaughter, in the basic possible terms, calls for only the actus reus, the intent of the defendant is irrelevant, all that is required is that the act was so careless and reckless that it showed a complete disregard for the safety of others

It has often been alleged that the arrangement of murder and involuntary manslaughter is too harsh, and that the scope of constructive manslaughter sometimes overlaps with the concern of murder, but surely, it is better that some individuals receive a harsher sentence then they may perhaps deserve, as sterner punishments undoubtedly deter individuals from performing irresponsibly, it has been stated that this is a necessary evil in regards to the murder/manslaughter distinction, and the uncertainty as to what offence an act may be could lead to individuals putting more thought into their actions, and reducing the number of fatalities from such incidents.

In conclusion, I believe that the relationship between murder and involuntary manslaughter is undoubtedly flawed, and steps should be taken to ensure that those who act without due care and attention for others, and those that act with malevolence are separated, not combined into one category as they currently are. I would accept the Law Commissions proposals and implement a first and second degree classification of murder, as well as the introduction of “killing by gross carelessness”, in my opinion, this would allow the more serious cases of involuntary manslaughter to be effectively punished, but award a more lenient sentence to the lesser offences that so deserve them.


Journals And Law Commission Reports

Legislating the Criminal Code: Involuntary Manslaughter (1996)

Homicide: Murder and Involuntary Manslaughter – J.S.I.J. 2008, 1, 216-218.

Homicide: Murder and Involuntary Manslaughter (2008)

Involuntary Manslaughter – Laurence Toczek, J.P. 2005, 169(31), 594-595.

Involuntary Manslaughter: Where to Now? – Stephen O’Doherty, J.P. 2004, 168(1/2), 5-9.

Homicide: Involuntary Manslaughter – Unlawful and Dangerous act – J.C. Smith, Glenda Vencatachellum, Crim. L.R. 2002, Jun, 490-492

Reforming the Law on Involuntary Manslaughter – Geoff Holgate, J.P. 2000, 164(46), 894-898.


Attorney General’s Reference (No 3 of 1994) [1998] AC 245

R v Cunningham [1957] 2 QB 396

R v Caldwell [1982] AC 341

Elliot v C (a minor) (1983) 2 AER 1005

R v Reid (1992) 3 AER 673

R v Creamer [1966] 1 Q.B. 72

R v Scarlett [1993] 4 ALL ER 629

R v Kennedy [2007] UKHL 38

Andrews v DPP [1937] A.C. 576

R v Senior [1899] 1 QB 283

R v Church [1966] 1 Q.B. 59

DPP v Newbury [1977] A.C. 500

R v Bateman (1927) 19 Cr. App. R. 8

R v Seymour [1983] 2 A.C. 493

R v Adomako [1995] 1 AC 171


Law Reform (Year and a Day Rule) Act 1996

Offences Against the Person Act 1861

Homicide Act 1957

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