24.3 Homicide and Partial Defences

24.3 Homicide and Partial Defences

Quick Answer: Murder needs an unlawful killing of a human being in being under the King's peace, with intent to kill or to cause GBH. If those ingredients are present, loss of control or diminished responsibility may reduce the conviction to voluntary manslaughter. If murder mens rea is missing, consider unlawful act manslaughter or gross negligence manslaughter. Independent OpenExamPrep teaching stays inside that FLK2 homicide list.

Murder

Murder is a common law offence. The classic definition still works in practice: the unlawful killing of a reasonable creature in being, under the King's peace, with malice aforethought.

• Human being in being: a child must have been born alive. A foetus is not a human being in being. If a child is born alive and later dies from injuries inflicted before birth, homicide liability can still arise in respect of the child after birth.
• King's peace: killings of enemy combatants in war sit outside ordinary murder; almost every civilian killing in England and Wales is inside the peace.
• Unlawful: not justified (self-defence can make a killing lawful and so not murder at all).
• Killing / causation: factual and legal causation from section 24.1. Switching off a life-support machine after brain-stem death does not normally break the chain from an earlier assault. The old year-and-a-day rule is abolished.
• Malice aforethought is not spite and not premeditation. It is an intent to kill or an intent to cause grievous bodily harm. If D intended really serious harm and V died, that is murder even if D did not want death. Recklessness as to death is not enough.

Constructive malice (killing in the course of a felony) was abolished by the Homicide Act 1957, s.1. Do not revive it.

Mapping the homicide outcomes

FLK2 does not list a separate reckless manslaughter heading. Stay with unlawful act and gross negligence when murder intent is missing.

Loss of control (Coroners and Justice Act 2009, ss.54–56)

This is a partial defence to murder only. It reduces murder to manslaughter. It is not a defence to s.18 or to manslaughter.

Three ingredients, all required:

1. D lost self-control. The loss need not be sudden. A slow-burn reaction can qualify. A considered desire for revenge kills the defence: if D waited, planned and struck to get even, there was no qualifying loss of self-control.
2. A qualifying trigger (s.55):
   • Fear trigger: D's loss of self-control was attributable to a fear of serious violence from V against D or another identified person; and/or
   • Anger / seriously wronged trigger: D's loss of self-control was attributable to things said or done which constituted circumstances of an extremely grave character and caused D to have a justifiable sense of being seriously wronged.
3. Objective test: a person of D's sex and age, with a normal degree of tolerance and self-restraint, and in the circumstances of D, might have reacted in the same or a similar way.

Circumstances of D can include a history of abuse, a grave medical condition, or the fact that D was holding a child. They do not include circumstances whose only relevance is that they bear on D's general capacity for tolerance or self-restraint. A short temper, voluntary intoxication, and a drunken personality are not circumstances that make the reasonable person more volatile.

Sexual infidelity must be disregarded as a qualifying trigger on its own. It can still form part of the context in which other things said or done are evaluated, but I caught you cheating is not, by itself, the anger trigger.

Once the defence is raised on sufficient evidence, the prosecution must disprove it beyond reasonable doubt.

Diminished responsibility (Homicide Act 1957, s.2, as amended)

Also a partial defence to murder only. D must prove it on the balance of probabilities (legal burden on the defence — the opposite of loss of control).

D must show:

1. An abnormality of mental functioning;
2. arising from a recognised medical condition;
3. which substantially impaired D's ability to understand the nature of D's conduct, or to form a rational judgment, or to exercise self-control (at least one limb);
4. and which provides an explanation for D's conduct in doing or being a party to the killing — the abnormality must be a significant contributory factor, not a complete excuse in the background.

Voluntary drunkenness is not a recognised medical condition. Alcohol dependency syndrome can be, if the jury finds an abnormality from that condition rather than from a simple choice to get drunk. Where D has a recognised condition and is drunk, the jury asks whether the condition substantially impaired D even without treating ordinary intoxication as the condition.

Medical evidence is practically essential. A solicitor who runs diminished responsibility on I just snapped, with no recognised diagnosis, will fail the statutory test.

Unlawful act manslaughter

Four ingredients:

1. D committed an unlawful act — a criminal offence, and a positive act, not a bare omission.
2. The act was dangerous: a sober and reasonable person, sharing the knowledge D had at the scene, would inevitably recognise a risk of some harm (not necessarily serious harm, and not a risk of death).
3. The act caused death (ordinary causation, including thin skull).
4. D had the mens rea for the unlawful act.

A punch, a push in the path of traffic, throwing a brick, or an arson that puts people at risk of some harm can all be the unlawful act. A hidden frailty of V that no reasonable observer would have known about does not make a timid burglary dangerous from the outset; if D becomes aware of V's frailty and continues, the act can become dangerous.

D need not foresee death. That is the point of the offence. If D intended GBH and V died, you are in murder, not this doctrine.

A free, informed self-injection by V can break the chain where D merely supplied the drug. Do not treat every death after a criminal act as automatic manslaughter without causation.

Gross negligence manslaughter

This is the omission-friendly homicide. Ingredients following Adomako and later clarification:

1. A duty of care (the same family of duties as in section 24.1, plus ordinary negligence duties such as doctor and patient, or driver and road user).
2. A breach of that duty.
3. The breach caused death.
4. A serious and obvious risk of death (not merely of injury) was reasonably foreseeable at the time, from information then available — no hindsight, and no attributing to D facts D could not have known without a step D had no reason to take.
5. The negligence was gross: so bad that it is criminal. That is a jury question, not a synonym for any civil breach.

A doctor who misses a vanishingly obscure sign that only later tests would reveal may have been negligent without the risk of death being obvious at the time. A carer who leaves a helpless adult without food for weeks is in a different category.

Gross negligence manslaughter is not a specific-intent crime. Intoxication will not usually strip out the fault element the way it can for murder.

Exam sequence for a death question

Ask, in order: Was there an unlawful killing of a human in being? Did D intend to kill or cause GBH? If yes, is there loss of control or diminished responsibility? If no murder intent, was there a dangerous criminal act causing death? If the case is an omission or a duty-holder's catastrophic neglect, is it gross negligence manslaughter? Only then consider intoxication or self-defence, which may knock out murder entirely or, in the case of drink, knock murder down to a basic-intent homicide.

Official starting points: the SRA SQE1 FLK2 Assessment Specification (homicide; partial defences), the Homicide Act 1957, s.2, and the Coroners and Justice Act 2009, ss.54–56.