When does murder become manslaughter?

By Makhsudul Islam

Murder is the unlawful homicide committed with ‘malice aforethought.’ The penalty for murder is life imprisonment. The above mentioned ‘malice aforethought’ is what is called the mens rea in law, this meaning the mental element and conduct required to commit a crime. The distinction that we will be focussing on is when murder becomes manslaughter, and that is where mens rea plays its crucial part. If malice aforethought is not present during the commission of murder, then this becomes manslaughter. But one needs to take heed that a person who kills without any motive, possibly for mercy or compassion (Euthanasia) to prevent suffering may nevertheless be guilty of murder just as someone who kills in the ‘heat of the moment’ lacking in premeditation.

It is important therefore to determine the actual meaning of malice aforethought, before 1957 a person was convicted of murder if the following could be proven:

 1. The convict intended to kill (express malice)

2. The convict intended to cause GBH (Grievous Bodily Harm)

3. The convict killed in the furtherance of a felony (committed murder upon another

crime) and perverting the course of justice by preventing arrest.

However since 1957 the courts have tended to change their view on the mens rea of murder, it now stands as: “an intention to kill or an intention to cause grievous bodily harm.” The court further defined the meaning of GBH, they stated that it had to be given its literal or natural meaning, a harm which is ‘really serious’ and could have played a role in causing the victims death. Furthermore, the Law Commission recommends a change in law, clause 54 provides:

1. A person is guilty of murder if he causes the death of another-

2. Intending to cause death or

3. Intending to cause serious personal harm and being aware that he may cause

death...

This is a welcomed recommendation by the Law Commission since it would prevent convicts being given life imprisonment where they had not intended nor foreseen the probability of the murder. It is a moral movement by the Law Commission taking into account the values of society, and preventing the course of justice from causing injustice. Life imprisonment should be to those that commit murder which they had premeditated, but to those that commit murder unintentionally they are now convicted under manslaughter.

Manslaughter covers all unlawful homicides which are not murder also known as second degree murder. The punishment for this offence is in the discretion of the court and therefore ranges from absolute discharge to life imprisonment, reflecting the immense range of circumstances which may fall within this vast category. This offence can further be divided into two categories, voluntary and involuntary.

Voluntary manslaughter includes diminished responsibility. It is not a general defence but only a defence to the charge of murder, and the defence is allowed under s.2 of the Homicide Act 1957. It is a partial excuse to committing a murder; hence the convict is instead convicted of manslaughter. The punishment ranges from being given life imprisonment to being acquitted by the judge and jury. Diminished responsibility refers to the mental condition of the convict, and how much control the convict retained during the incident, but this is the discretion of the court, the judge will decide the credibility of such statements and impose a verdict. The verdict will cause the convict to receive hospital orders under s.37 of the Mental Health Act 1983 and a restriction order under s.41 of the same Act.

Provocation similar to above is only a defence to the charge of murder and not a general defence. This has been allowed by parliament under s.3 of the Homicide Act 1957. The effect of this defence is to reduce the charge of murder to manslaughter. If the jury are not satisfied that the accused had the intention to kill or cause grievous bodily harm they must acquit of murder and manslaughter. The burden of proof is on the prosecution to prove beyond reasonable doubt that the convict was not provoked but had premeditated the murder. But for a defence of provocation to be valid, two elements have to be proven: first, the subjective question of whether the defendant was provoked to lose their self-control; and secondly the objective question of whether the reasonable man would have beenprovoked to lose self-control had they been under the same circumstances. These two elements have to be satisfied and if the answer is affirmative then the accused could be given a sentence. This will allow the accused to be convicted of manslaughter.

Involuntary manslaughter is an offence of ill-defined boundaries covering the middle ground between murder and accidental death. Moreover, the act must be dangerous and it has to lack the mens rea. In conclusion, murder becomes manslaughter under two conditions: first, the mens rea required for someone to kill is lacking and secondly there is exceptional circumstances which rendered the person irresponsible for the death caused.