Murder and Voluntary Manslaughter
Homocide is a generic term for any unlawful killing. However, there is no offence as ‘homocide’ but there are types of
homocide that are considered as offences.
Countries classification of homocide offences differ: UK system has a strict classification of seriousness: murder,
voluntary manslaughter, constructive manslaughter, and gross negligence manslaughter (common feature is that D
must have caused the death of the victim).
Murder is a common law offence, define by Coke as ‘the unlawful killing of a reasonable creature.. with malice
aforethought’
Murder carries a mandatory life sentence, whereas voluntary manslaughter gives judge discretion.
1) Has there been an unlawful killing of a human being?
Actus Reus of Murder/Homocide (applies to all types):
VICTIM MUST BE A HUMAN BEING
• A foetus is not a human being, it must be wholly expelled from the mothers body + be alive + exist independently
(R v Poultan)
• In the case of conjoined twins, the weaker twin is a human being despite being dependent on her twin (R v A
(Conjoined Twins))
• AG Reference (no.3 1994): stabbing a pregnant women and killing the foetus is not murder, given the MR was in
relation to the mother (malice is not transferred)
VICTIM MUST BE DEAD
• If person is brain-dead and doctors switch off life support, defendant can be convicted of murder (R v Malcherek
and Steel)
CAUSATION
• Defendants act must have significantly caused victims death (R v White - D poisoned mother but died from heart
attack unrelated to the poison - but for test meant he couldn’t be liable for murder)
• Courts have developed 2 elements of causation (both must be present):
◦ Factual causation:
‣ determined by the ‘but for’ test (R v White): But for the defendant’s conduct, would the victim’s death
have occurred in the way it did?
‣ if victim is terminally ill already, then only a ‘significant’ acceleration of death would satisfy the ‘but for’
test e.g. acceleration by a day would be enough (R v Cheshire)
‣ Factual causation is a question for the jury to decide (R v Clarke and Morabir)
◦ Legal causation:
‣ Left for the jury to decide using common sense
‣ Guidelines for 2 situations have been provided:
• There can be more than one cause of a particular result, and defendants act does not need to be
the main cause or only cause as long as it contributed significantly to the end result (R v Pagett)
• Breaking the ‘chain of causation’ (novus actus interveniens/new intervening act) is when defendants
act and end result has been broken by an intervening act, argument will not succeed when
(Malcherek and Steel - both cases of victim dying in hospital but both refused appeal because
medical treatment was normal):
◦ The defendant was still an operating/substantial cause
◦ Court decides that it was foreseen by the defendant or foreseeable to a reasonable person
that such an event would occur (applied in R v Watson - 87 year old man died from a heart
attack after being robbed = defendants convicted of manslaughter; must take victim as you find
them)
• Test for when medical negligence will break the chain of causation. (R v Cheshire)
◦ If the negligent medical care was independent of the defendants actions and so potent in causing the
death that the jury believe the defendant’s actions were negligible in comparison then the defendant will
not have caused the death
◦ Defendant must take victim as he finds him, therefore if defendant injures victim and due to pre-existing
illness victim cannot receive life saving medical treatment, then causation will be established (R v Mckenzie)
• General rule: must take victim as you find them (Watson; Mckenzie; R v Blaue = women refused life saving blood
transfusion due to religious belief and this did not break the chain of causation)
Homocide is a generic term for any unlawful killing. However, there is no offence as ‘homocide’ but there are types of
homocide that are considered as offences.
Countries classification of homocide offences differ: UK system has a strict classification of seriousness: murder,
voluntary manslaughter, constructive manslaughter, and gross negligence manslaughter (common feature is that D
must have caused the death of the victim).
Murder is a common law offence, define by Coke as ‘the unlawful killing of a reasonable creature.. with malice
aforethought’
Murder carries a mandatory life sentence, whereas voluntary manslaughter gives judge discretion.
1) Has there been an unlawful killing of a human being?
Actus Reus of Murder/Homocide (applies to all types):
VICTIM MUST BE A HUMAN BEING
• A foetus is not a human being, it must be wholly expelled from the mothers body + be alive + exist independently
(R v Poultan)
• In the case of conjoined twins, the weaker twin is a human being despite being dependent on her twin (R v A
(Conjoined Twins))
• AG Reference (no.3 1994): stabbing a pregnant women and killing the foetus is not murder, given the MR was in
relation to the mother (malice is not transferred)
VICTIM MUST BE DEAD
• If person is brain-dead and doctors switch off life support, defendant can be convicted of murder (R v Malcherek
and Steel)
CAUSATION
• Defendants act must have significantly caused victims death (R v White - D poisoned mother but died from heart
attack unrelated to the poison - but for test meant he couldn’t be liable for murder)
• Courts have developed 2 elements of causation (both must be present):
◦ Factual causation:
‣ determined by the ‘but for’ test (R v White): But for the defendant’s conduct, would the victim’s death
have occurred in the way it did?
‣ if victim is terminally ill already, then only a ‘significant’ acceleration of death would satisfy the ‘but for’
test e.g. acceleration by a day would be enough (R v Cheshire)
‣ Factual causation is a question for the jury to decide (R v Clarke and Morabir)
◦ Legal causation:
‣ Left for the jury to decide using common sense
‣ Guidelines for 2 situations have been provided:
• There can be more than one cause of a particular result, and defendants act does not need to be
the main cause or only cause as long as it contributed significantly to the end result (R v Pagett)
• Breaking the ‘chain of causation’ (novus actus interveniens/new intervening act) is when defendants
act and end result has been broken by an intervening act, argument will not succeed when
(Malcherek and Steel - both cases of victim dying in hospital but both refused appeal because
medical treatment was normal):
◦ The defendant was still an operating/substantial cause
◦ Court decides that it was foreseen by the defendant or foreseeable to a reasonable person
that such an event would occur (applied in R v Watson - 87 year old man died from a heart
attack after being robbed = defendants convicted of manslaughter; must take victim as you find
them)
• Test for when medical negligence will break the chain of causation. (R v Cheshire)
◦ If the negligent medical care was independent of the defendants actions and so potent in causing the
death that the jury believe the defendant’s actions were negligible in comparison then the defendant will
not have caused the death
◦ Defendant must take victim as he finds him, therefore if defendant injures victim and due to pre-existing
illness victim cannot receive life saving medical treatment, then causation will be established (R v Mckenzie)
• General rule: must take victim as you find them (Watson; Mckenzie; R v Blaue = women refused life saving blood
transfusion due to religious belief and this did not break the chain of causation)
