According to the Homicide Act 1957 (HA 1957), murder is one of the two offences that constitute homicide.
Where the two differ is unlike manslaughter, murder is committed with the intention to kill or cause grievous bodily harm (GBH) to another.
According to HA 1957, self-defence and partial defences could warrant a murder charge; however, providing sufficient evidence is supplied, and the case is successfully argued, the offence may be reduced to manslaughter.
Elements of manslaughter
To be found guilty of manslaughter, at least one of the following elements must apply:
- A partial defence applies to the murder, e.g. the defendant lost control, suffers from an abnormal mental functioning or killed the victim in a suicide pact.
- The murder was caused by gross negligence or medical negligence; or
- A crime was committed, and any dangers present resulted in death (also known as involuntary manslaughter).
Having the intent to kill where a partial defence applies is defined as “voluntary manslaughter” if the murder was not intentional, this is “involuntary manslaughter”.
Elements of murder
Unlike manslaughter, murder is committed when a person:
- Of sound mind unlawfully kills another human;
- intending to kill or cause GBH;
- under the Queen’s peace, and
- the intention must also be premeditated.
Generally, a company or corporation cannot be liable for murder; in these circumstances, legal guidance should be sought on corporate manslaughter.
Murder is generally defined by the intent to kill or cause GBH to another, meaning the defendant willingly carried out actions where death or serious bodily harm would result.
Direct intent is when the offender desired death as the outcome, whereas oblique intent is where death was seen as virtually unquestionable.
Unlike murder, attempted murder is a failed or aborted attempt to kill. When convicting a defendant of attempted murder, the court must show that there is evidence of an intention to kill.
Although death was avoided, the crime is still deemed severe and carries one of the most severe punishments in the criminal justice system.
The prosecution must prove that legal or factual causation occurred between the actions committed by the offender and the resulting death they are alleged to have caused when convicting murder.
If neither of these can be established, then a murder charge cannot be applied.
For example, if the offender was accused of murdering their spouse with poison, but their partner died for another reason, such as a heart attack, the defendant would not be found guilty of murder but attempted murder.
However, in cases where an omission is claimed as the fundamental cause of death, establishing causation is incredibly challenging. Should this be the case, the defendant would have to prove that if the omission didn’t occur death would not have resulted.
For the defendant to break the “chain of causation” an relieve themselves of liability, they must prove that death was caused by a significant intervening act, such as:
- A third party acted, and the intervention would be unforeseeable by any reasonable person.
- Natural events or an act of God occurred, which could not be anticipated by a reasonable person.
- The deceased had been identified as a suicide risk and aggravated wounds sufficiently to the point where death would be avoidable.
- Treatment registered to aid the victim or prevent death resulted in demise. However, medical care administered to deal with criminal injury is rarely regarded as the cause of death. So, this would only be valid in extraordinary cases.
Under the “egg-shell skull rule”, the defendant cannot use any existing frailty, weakness, sensitivity, or vulnerability of a victim as a defence in court.
Defendants who claim to kill in acts of self-defence can also be just as guilty as those accused of murder or manslaughter as for self-defence to apply the threat of harm must be immediate in nature.
If the deceased used offensive words that do not infer any imminent threat of harm, a plea for self-defence would be unjustified.
In some circumstances, murder may be mitigated to manslaughter as an alternative verdict, should the prosecution deem the elements involved in the case were not premeditated, or a pact was made between the deceased and the defendant.
Under the s4 Homicide Act 1957, a person who kills another or abetted others in the act of killing through a suicide pact would not be convicted with murder but manslaughter.
For example, if a person is suffering from a terminal illness and their partner agrees to take their life, they are acting in pursuance of a suicide pact.
However, the defence must provide ample evidence that a suicide pact existed for this to be accepted by the court, including medical documentation and representations.
The jury must also discern a suicide pact genuinely existed, and if the defendant was sincerely acting upon that agreement.
If a suicide pact is proven successfully, then the party would be found guilty of manslaughter and not murder.
Sentencing guidelines for murder
All murder convictions carry a life sentence and must be set with a minimum term, which dictates the time the offender must serve before being eligible for parole.
Under the Criminal Justice Act 2003, the judge should refer to the starting points detailed in Schedule 21 to determine whether the sentence should be whole life, 30 years, 25 years, 15 years or 12 years for offenders under 18.
When sentencing children and young people, the court should consider the guidelines outlined by the Sentencing Council.
Schedule 21 sets out examples of the different types of starting points and the sentence that should be applied. For instance, in murder cases where a firearm or explosive was used, a starting point of 30 years should be applied to criminals aged 18 and over, or 12 years for offenders under 18.
If murder was committed using a knife or other weapon, the starting point that should be applied is 25 years for offenders over 18 and 12 years for those under 18.
If the court finds the case to be exceptionally severe, then a whole life order would be the appropriate starting point. Such a sentence is usually given to repeat murder offenders or if the victim was subjected to sexual and sadistic conduct.
After considering which starting point applies to the case can the court then factor in any aggravating or mitigating factors.
If the Parole Board agrees to release an offender serving a life sentence, they have the right to recall the person back into prison at any time should they be deemed a risk to the public, or if they break the conditions of their release.