English law contains homicide offences – those acts involving the death of another person. For a crime to be considered homicide, it must take place after the victim's legally recognised birth, and before their legal death. There is also the usually uncontroversial requirement that the victim be under the "King's peace". The death must be causally linked to the actions of the defendant. Since the abolition of the year and a day rule, there is no maximum time period between any act being committed and the victim's death, so long as the former caused the latter.
There are two general types of homicide, murder and manslaughter. Murder requires an intention to kill or an intention to commit grievous bodily harm. If this intention is present but there are certain types of mitigating factors – loss of control, diminished responsibility, or pursuance of a suicide pact – then this is voluntary manslaughter. There are two types of involuntary manslaughter. Firstly, it may be "constructive" or "unlawful act" manslaughter, where a lesser but inherently criminal and dangerous act has caused the death. Alternatively, manslaughter may be caused by gross negligence, where the defendant has broken a duty of care over the victim, where that breach has led to the death, and is sufficiently gross as to warrant criminalisation.
General features Death is an irremediable harm that is dealt with particularly seriously in English law. For example, the crime of murder uniquely carries a mandatory sentence of life imprisonment, regardless of the degree to which the defendant is morally culpable provided they are legally culpable. To use another example: causing injury by dangerous driving carries a maximum sentence of two years, whereas causing death by dangerous driving carries one of fourteen years.Simester et al. (2010). pp. 359–360.
All homicides involve three elements as a defining feature: firstly, that the victim must be a legally defined "human being"; that their death must be caused by the act or omission of one or more human beings; and that this must occur within the "King's peace", which relates to jurisdiction.Simester et al. (2010). p. 360.
Birth and death A fetus, even at a late stage of pregnancy, is not protected by the law of homicide due to abortion rights in the United Kingdom. (rather, other offences have been created to prevent the proscribed harmFor example, child destruction (Infant Life (Preservation) Act 1929) and unlawfully procuring a miscarriage (Offences Against the Person Act, section 58.)).Ormerod (2005). p. 430. To qualify, the victim must have an "independent existence". This was confirmed in 1998 in Attorney General's Reference (No. 3 of 1994), AC 245 [HL] even where the foetus is viable and could have survived if born before the offence was committed.Simester et al. (2010). p. 361. The confused rationale appears to match the complicated moral and biological distinction on which it is based; there is huge social significance placed upon birth and thus the law is unlikely to change – Article 2 of the European Convention on Human Rights has not yet been interpreted to conflict with the English law.Simester et al. (2010). pp. 362–363. Instead, in Vo v France, the European Court of Human Rights ruled that most definitions were within the margin of appreciation set aside to national law.Ormerod (2005). p. 431. The death of a child after birth from injuries sustained before birth would only constitute murder if the requisite intent – that the child would die after birth – was present. Other forms of homicide would also be applicable.Simester et al. (2010). pp. 363–364.
There is no legislation that defines when death has occurred. However, in Airedale NHS Trust v Bland, 1 AC 789 (HL) cessation of brain stem function, one form of brain death, was considered the definition by the House of Lords. Much medical law – for example, that conferring the right to remove organs for transplant – is predicated on this decision and it is unlikely to be overturned.Simester et al. (2010). p. 365. The Criminal Law Revision Committee has declined to propose a legal definition, for fear of the wide impact that it could have on disparate branches of the law, and the changing basis in medical science.Ormerod (2005). p. 433. In Bland, a person in a persistent vegetative state was considered to be alive; accordingly, anything less than brain stem cessation is unlikely to be sufficient for death.Simester et al. (2010). pp. 365–366.
Causation The normal rules of causation apply, although they can become strained when compared to the various moral issues of importance in cases of homicide. In R v. Pagett,(1983) 76 Cr App R 279 (CA) the defendant was found guilty of the manslaughter of a hostage he was using as a human shield, who was killed by police returning fire against the defendant. Whether another's actions are "free, voluntary and informed" is the operating definition, as upheld in R. v Kennedy (No. 2) 1 AC 269 (HL) where the defendant was acquitted. Such an intervening act is known as a "novus actus interveniens".Simester et al. (2010). pp. 366–367. The judgments of several judges in various cases, including Devlin J in R. v Adams Crim LR 365 appear to confuse causality with motive: where there is a strong moral imperative to clear the defendant, causality is doubted, rather than the mental element (mens rea).Simester et al. (2010). pp. 367–368. Since everyone will die at some point, then even murder is a mere acceleration of death. In Adams the question of life-shortening palliative care was approached, and the need to provide a suitable reason with which to distinguish the doctor from any other murderer.
A homicide can be brought about through act or omission. Baker, notes Elsewhere Baker argues: Dennis J. Baker, Rethinking the Mental Element in Involuntary Manslaughter (2021) Journal of Criminal Law https://doi.org/10.1177/00220183211004068 ,
There are no specific rules that apply to acts or omissions in homicide: an omission is criminal if the defendant fails to prevent the avoidable death of the victim where he or she has the duty to do so and that the defendant had the capacity to do so.Simester et al. (2010). p. 368. As noted below, unlawful omissions have been excluded from unlawful act manslaughter. Like in other areas, a duty of care may now be owed, following R. v Evans, 1 WLR 1999 even where the dangerous situation which results in the victim's death was not caused by the defendant.In R. v Miller 2 AC 161, part of the defendant's culpability was established on the converse being the case.Simester et al. (2010). p. 369. Medical professionals may be relieved of their responsibility to sustain a patient's life, where terminating life support is dubiously legally classified as an omission.Simester et al. (2010). pp. 369–370.
Other features The year and a day rule was abolished in England and Wales by the Law Reform (Year and a Day Rule) Act 1996. As a matter of practice, the defendant may already have been prosecuted for the initial offence (for example, another offence against the person). Accordingly, the Attorney General's consent is required if more than three years has elapsed, or where the defendant has already been prosecuted in the circumstances alleged to have resulted in the victim's death.Simester et al. (2010). p. 370.Ormerod (2005). p. 434.
A person who is not "under the Queen's Peace" cannot be the victim of a homicide. This includes the killing of alien enemies during a time of war. Murder or manslaughter committed by a British citizen is triable in an English (or Northern Irish) court, regardless of where the crime took place. The same is true for homicides committed on British ships or aircraft, regardless of the nationality of the offender. There are other statutory provisions which extend jurisdiction regarding types of offender on foreign ships, and, in the case of murder, terrorist activities.Ormerod (2005). pp. 429–430. Although most crimes committed overseas are generally dealt with in the home jurisdiction, the Offences Against the Person Act 1861 formally brings the offences of a British citizen under the jurisdiction of the British courts, and therefore the "Queen's Peace" rule is usefully retained.
Defences The killing of another person must be unlawful. Some defences are therefore open to the defendant, among them self-defence. Carrying a lawful activity, for example, a fully qualified doctor carrying out an abortion in the required circumstances, could not result in an unlawful homicide even if the child was born alive. Consent might be relevant to some forms of homicide, but not to murder.
Murder
Murder has never been statutorily defined, despite being recognised as either the most serious crime, or certainly among them.Ormerod (2005). p. 429. The actus reus (prohibited act) of murder, unlawfully causing the death of another person, fits the general provisions for homicide.Ormerod (2005). pp. 429–436. The mens rea (mental element) of murder was long held to be "malice aforethought", which took on a meaning only of the required mental state for murder, since malice aforethought required neither malice (compassionate killing is still murder) nor aforethought (no premeditation is required).Simester et al. (2010). p. 371.Ormerod (2005). p. 436. It is this mental component that marks murder out from manslaughter.
The mental element is taken to be either an intention to kill, or an intention to inflict grievous bodily harm.Ormerod (2005). p. 436. Grievous bodily harm is "really serious" harm.Ormerod (2005). p. 437. The extension of the intention to inflict grievous bodily harm has been criticised, although it has remained in place despite several legal challenges, and, in the case of R v Hyam AC 55 the minority judgments of Lord Diplock and Lord Kilbrandon which would have removed it. The judges there made reference to the abolition under the Homicide Act 1957 of constructive malice (causing death whilst committing a felony or resisting arrest), believing the rule for grievous bodily harm to be a hang-over of the old system. It can now be concluded that only legislative intervention could abolish this form of murder, and, although the Law Commission proposed a change in the law, none has yet been enacted.Simester et al. (2010). pp. 371–373. The current law was judged to be compatible with Article 7 of the European Convention on Human Rights in relation to Northern Ireland. It can also be defended with reference to the actor taking responsibility for his actions, even unforeseen consequences, or merely as an appropriate response in itself.Ormerod (2005). pp. 438–439. Intent is subjective: that the defendant must surely have intended their actions because a reasonable person would, knowing what the defendant knew, have foreseen death as a result, is insufficient. This seemed to have been allowed as a form of intent in DPP v Smith, AC 290 but that case has been considered overturned following legislative changes, and more recent cases leave no room for doubt on this issue.Simester et al. (2010). pp. 373–374.