Sample Undergraduate 2:1 Criminal Law Assignment

Is the law on murder and voluntary manslaughter in England and Wales in need of reform?

Introduction

The law on murder and voluntary manslaughter in England and Wales has been developed over a period of around five hundred years and is the product of a variety of statutory provisions along with a complex and far-reaching series of judicial decisions. These decisions have dealt with specific points of law and never addressed the offences in a holistic fashion. Law Commission proposals have suggested a three tier approach to homicide offences which would include first degree and second degree murder and manslaughter. The advantage would be a clear structure for such offences that properly reflects degrees of fault.[1] The question will be considered under three headings: murder, voluntary manslaughter and proposals for reform.

Murder

Murder is defined as unlawful homicide with ‘malice aforethought’.[2] The actus reus (guilty act) of murder is the unlawful causing of death of a human being, under the King’s peace.[3] To convict a principal offender the prosecution must prove that the defendant caused the victim’s death, although difficulties arise when there are more than one cause of death.[4] The prosecution must establish both factual and legal causation. The usual test for factual causation is whether, but for the conduct of the accused, the victim would have died when they did. Legal causation requires that the conduct was an operative and more than minimal cause of death.[5] Proving causation of death therefore can be problematic, where there are intervening acts or multiple injuries which contributed to the victim’s death. In certain cases, there may be a number of perpetrators and it may be unclear who inflicted the fatal injury. An accessory can be liable for murder if they intentionally assisted or encouraged the offence with the necessary intent.

The mens rea (mental element) is ‘with malice aforethought’ (or the intention to kill or cause grievous bodily harm).[6] Malice aforethought does not; however, require malicious intent and in Inglis,[7] the Court of Appeal reiterated the position that even ‘mercy killings’ or acts of compassion could be murder. This is one problematic aspect of murder, as it means that it fails to distinguish between a malevolent and benevolent motive when determining guilt.

The Homicide Act 1957 abolished constructive malice: a killing in the course of another offence requires the same malice aforethought, express or implied, as any other murder.[8] Implied malice was defined in Vickers[9]as intention to cause grievous bodily harm and affirmed in Cunningham.[10] Grievous bodily harm is understood to mean, really serious harm (DPP v Smith).[11] A person can therefore be convicted of murder even without intending to kill the victim nor even having foreseen the possibility that death might occur as a result of their act.[12] This situation leads to the problem that very different ranges of intention and awareness are incorporated to make one offence of murder; this is further complicated by the fact that murder carries a mandatory life sentence, including detention at His Majesty’s pleasure for offenders under eighteen at the time of the offence.[13]

Voluntary Manslaughter

Manslaughter is the other general homicide offence. There are also separate statutory offences, such as infanticide.[14] Voluntary manslaughter includes situations where the mens rea for murder is present, but the defendant is able to rely upon a special defence, which enables the defendant to reduce their liability to one of voluntary manslaughter. These special defences include: loss of control, diminished responsibility or suicide pact. [15] The defence of ‘loss of control’ replaced the earlier common law partial defence of ‘provocation’[16] which was criticised as a barrier to female victims of domestic violence claiming a partial defence to murder (e.g. Thornton),[17] even after many years of serious abuse at the hands of their abusers.[18]

The ‘loss of control’ defence can be pleaded as a partial defence to murder where the killing resulted from the defendant’s loss of self-control, that loss had a qualifying trigger, and a person of the defendant’s sex and age, with a normal degree of tolerance and self-restraint and in the defendant’s circumstances, might have reacted in the same or a similar way. The trigger may be fear of serious violence from the victim against the defendant or another identified person, things done or said of an extremely grave character causing a justifiable sense of being seriously wronged, or both. A considered desire for revenge excludes the defence. Once sufficient evidence is raised, the prosecution must disprove the defence beyond reasonable doubt.[19] In Jewell, the loss of control was defined as “a loss of the ability to act in accordance with considered judgment or a loss of normal powers of reasoning”.[20] In this case the Court of Appeal upheld the judge’s decision that there was insufficient evidence of loss of control to leave the defence to the jury, given the planning of the attack. In Ahluwalia;[21] however, it was confirmed that a cooling off period did not always prohibit a defence of provocation. In Humphreys,[22] the court held that the final taunt had to be considered in the context of the preceding abuse. Both cases concerned the old law of provocation. Under the current defence, loss of control need not be sudden, a change of particular importance where abuse is prolonged.

The two further partial defences to murder are diminished responsibility and suicide pact, both of which are provided for within the Homicide Act 1957. The defence of diminished responsibility was introduced in response to criticisms of the defence of insanity. The defendant must prove the elements of the defence on the balance of probabilities (Dunbar).[23] These include abnormality of mental functioning which arises from a recognised medical condition, leading to a substantial impairment of the defendant’s ability to understand the nature of their conduct, form a rational judgement or exercise self-control.[24] The abnormality must cause, or be a significant contributory factor in, the defendant’s conduct in the killing.[25] The 2009 Act replaced ‘abnormality of mind’ with ‘abnormality of mental functioning’ from October 2010.[26] The defence of ‘suicide pact’ is also a partial defence to murder where the defendant kills the other person, or is party to their killing, in pursuance of an agreement that all the parties should die. The defendant must prove on the balance of probabilities that they acted under the pact with a settled intention of dying under it.[27]

What is clear about the current law on murder and voluntary manslaughter is that they are largely the product of common law, with various statutory provisions.[28] The main difficulty with this position is that reforms have been carried out in a piecemeal fashion over a period of more than five hundred years.[29] While changes to the provocation and diminished responsibility defences have been made by virtue of the Coroners and Justice Act 2009, these changes have addressed specific deficiencies in the law, but not addressed the entire framework and to an extent, merely added to the law’s piecemeal nature. This state of affairs has other implications, for example, the Law Commission argued in 2006 that the statutory starting points for the minimum term in murder cases presupposed that murder has a rational structure which correctly reflects degrees of fault and provides appropriate defences. The law has never had such a structure.[30]

Proposals for Reform

There are a number of potential areas for reform within the area of the criminal law on unlawful homicide, while certain changes have already been made in recent years, certain proposals for reform made during the mid-2000s have yet to be enacted into primary legislation. The Law Commission recommended a three tier system and a statutory definition of intention. It would have retained the mandatory life sentence for first degree murder. Other proposals have called for its abolition.[31] What the Law Commission found with the existing rules is that the current offences are largely a product of judicial law making in individual cases over hundreds of years.[32] They lack the holistic approach that can be achieved through legislation enacted after wide consultation and research into alternative possibilities.[33] On the Law Commission’s reading, when Parliament passed the Homicide Act 1957 it intended a killing not to amount to murder, unless the defendant realised that their conduct might cause death. The widening of murder in subsequent case law can therefore be considered to be beyond the will of Parliament.[34]

The Law Commission recommended replacing the existing system comprised of two main offences (murder and manslaughter) with a three-tier system of general homicide offences. The aim was to bring “greater order, fairness and clarity” to the law of homicide by making the distinctions between offences clearer and more defensible.[35] The proposal suggested dividing the offence of murder into two distinct offences: first degree murder and second degree, while maintaining a third offence of manslaughter.[36] Under the 2006 proposal, first degree murder would cover an intention to kill, or an intention to cause serious injury with awareness of a serious risk of death. Second degree murder would include an intention to cause serious injury without that awareness, or an intention to cause injury, fear of injury or a risk of injury with awareness of a serious risk of death. A successful partial defence to first degree murder would also reduce it to second degree murder. Manslaughter would cover gross negligence and certain killings by a criminal act.[37]

Various other proposals have been made in relation to an overhaul of the current system, these include the abolition of the mandatory life sentence for murder which is said to artificially stretch out the defences to murder when a life sentence is considered too harsh a penalty based upon the specific facts of the case.[38] Elsewhere, the Law Commission has also suggested a statutory definition of intention,[39] concluding in 2006 that this should codify existing common law principles. Under Woollin, a jury may find intention where death or serious bodily harm was a virtual certainty, barring unforeseen intervention, and the defendant appreciated that fact. In its 2026 consultation the Law Commission again proposed two degrees of murder, but drew the line differently. It proposed reserving first degree murder and the mandatory life sentence for an intention to kill. An intention to cause serious injury would suffice for second degree murder, with a discretionary life sentence. Where an intentional killing is reduced by a partial defence, the proposed verdict is ‘murder with a partial defence’, also with a discretionary life sentence. These proposals remain under review.[40] The difficulty will always be cases that appear to provide a harsh result for a specific set of circumstances in the application of the existing law. The advantage of a framework approach therefore appears to offer prosecutors more flexibility in finding an appropriate charge that appropriately addresses the level of fault within the given circumstances of the case.

Conclusion

The law on murder and voluntary manslaughter in England and Wales developed through the process of mainly judge-made rules over a period of around five hundred years. The outcome has been a complex mix of rules, often which exhibit particular biases of the law-makers over the year, as exemplified by the defence of provocation to murder. While statutory changes have been introduced to amend various parts of the law, they have been introduced in a piecemeal fashion, some in 1957 and others in 2009 with over fifty years between them. There remains, therefore, a pressing need for a more holistic approach that is backed by public consultation to adopt a new statutory framework to adequately addresses the varying degrees of fault that exist within the act of killing another human being.

Bibliography

Books

Allen MJ, Criminal Law (14th edition, Oxford University Press, 2017)

Card R and Molloy J, Card, Cross and Jones Criminal Law (Oxford University Press 2016)

Elliott C and Quinn F, Criminal Law (11th edition, Pearson 2016)

Monaghan N, Criminal Law Directions (Oxford University Press 2016)

Reports

Law Commission, ‘Murder, Manslaughter and Infanticide’ (2006) Law Com. No. 304

Law Commission, ‘A New Homicide Act for England and Wales? An Overview’ (2005) Consultation Paper No. 177

Law Commission, Homicide Offences (2026) Consultation Paper No. 277

Cases

DPP v Smith [1961] AC 290

R v Ahluwalia (1993) 96 Cr App R 133

R v Cunningham [1982] AC 566

R v Dunbar [1958] 1 QB 1

R v Humphreys [1995] 4 All ER 1008

R v Inglis [2010] EWCA Crim 2637

R v Jewell [2014] EWCA Crim 414

R v Thornton (1993) 96 Cr App R 112

R v Vickers [1957] 2 QB 664

R v Woollin [1999] 1 AC 82

R v Jogee [2016] UKSC 8

Legislation

Murder (Abolition of Death Penalty) Act 1965

Sentencing Act 2020

Infanticide Act 1938

Coroners and Justice Act 2009

Criminal Justice Act 2003

Homicide Act 1957