Murder
Murder is a common law offence defined by Lord Coke as "the unlawful killing of a reasonable creature in being under the Queen's peace with malice aforethought." The actus reus requires: (1) an unlawful killing, (2) of a human being, (3) under the Queen's (now King's) peace. The mens rea is malice aforethought — intention to kill or intention to cause grievous bodily harm (R v Vickers [1957] 2 QB 664).
Murder carries a mandatory life sentence. The judge sets a minimum term (tariff) before the defendant can be considered for parole, guided by Schedule 21 of the Sentencing Act 2020.
The year and a day rule (requiring death within a year and a day of the act) was abolished by the Law Reform (Year and a Day Rule) Act 1996.
Voluntary Manslaughter: Diminished Responsibility
Diminished responsibility is a partial defence to murder under s.2 of the Homicide Act 1957 (as amended by the Coroners and Justice Act 2009). If successful, it reduces murder to voluntary manslaughter, giving the judge sentencing discretion.
The defendant must prove on the balance of probabilities that: (1) they suffered from an abnormality of mental functioning, (2) arising from a recognised medical condition, (3) which substantially impaired their ability to understand the nature of their conduct, form a rational judgment, or exercise self-control, and (4) the abnormality provides an explanation for the killing.
In R v Golds [2016] UKSC 61, the Supreme Court held that "substantial" means more than merely trivial — it must be something that is important or weighty. Alcoholism and drug dependency may qualify as recognised medical conditions, but voluntary acute intoxication alone does not (R v Dowds [2012] EWCA Crim 281).
Voluntary Manslaughter: Loss of Control
Loss of control replaced the old defence of provocation under ss.54-56 of the Coroners and Justice Act 2009. The defendant must show: (1) they lost self-control, (2) the loss of control had a qualifying trigger, and (3) a person of the defendant's sex and age with a normal degree of tolerance and self-restraint might have reacted in the same or similar way.
Qualifying triggers (s.55): (a) the defendant's fear of serious violence from the victim, or (b) things said or done which constituted circumstances of an extremely grave character and caused the defendant to have a justifiable sense of being seriously wronged. Sexual infidelity alone cannot be a qualifying trigger (s.55(6)(c)), though it may be considered alongside other factors (R v Clinton [2012] EWCA Crim 2).
Unlike the old provocation defence, there is no requirement for the loss of control to be sudden (s.54(2)), which addresses the criticism that the old law disadvantaged women in domestic abuse situations who killed after a "slow burn" rather than a sudden loss of temper.
Involuntary Manslaughter: Unlawful Act
Unlawful act manslaughter (constructive manslaughter) requires: (1) an unlawful act (a criminal offence, not merely a tort — R v Franklin (1883)), (2) the act must be dangerous (an objective test: would a sober and reasonable person recognise a risk of some physical harm? — R v Church [1966] 1 QB 59), (3) the act must cause death, and (4) the defendant must have the mens rea for the unlawful act (not for the killing).
In R v Kennedy (No 2) [2007] UKHL 38, the House of Lords held that where the victim freely and voluntarily self-injected drugs supplied by the defendant, the defendant did not commit an unlawful act causing death — the victim's voluntary act broke the chain of causation.
Involuntary Manslaughter: Gross Negligence
Gross negligence manslaughter was defined in R v Adomako [1995] 1 AC 171. The elements are: (1) the defendant owed a duty of care to the victim, (2) the defendant breached that duty, (3) the breach caused the victim's death, and (4) the breach was so grossly negligent as to justify criminal punishment.
The duty of care is determined by the ordinary principles of negligence. The question of whether the negligence was "gross" is for the jury, considering whether the defendant's conduct was so bad that it amounted to a criminal act or omission. In R v Rose [2017] EWCA Crim 1168, the Court of Appeal confirmed that the Adomako test remains good law and that the defendant must have had the capacity to appreciate the risk (though they need not have actually appreciated it).
Key Cases
| Case | Key Principle |
|---|---|
| R v Vickers(1957) | Malice aforethought includes intention to cause GBH |
| R v Golds(2016) | 'Substantial' impairment means more than trivial — important or weighty |
| R v Clinton(2012) | Sexual infidelity alone cannot be a qualifying trigger but may be considered alongside other factors |
| R v Church(1966) | Dangerousness test: would a reasonable person recognise risk of some harm? |
| R v Adomako(1995) | Defines gross negligence manslaughter: breach so bad it justifies criminal sanction |
Exam Tips
Exam Tip
For homicide questions, always start with murder. If the elements are satisfied, then consider the partial defences (diminished responsibility and loss of control) which reduce murder to voluntary manslaughter. If the mens rea for murder is not present, consider involuntary manslaughter (unlawful act or gross negligence).
Common Mistake
Students often forget that loss of control under the 2009 Act is different from the old provocation defence. Key differences: no requirement for sudden loss of control, sexual infidelity alone cannot be a trigger, and the reasonable person test now uses a person of the defendant's sex and age with a normal degree of tolerance.