Homicide in English law

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.^[1]

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.^[2]

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 harm^{[nb 1]}).^[2][3] To qualify, the victim must have an "independent existence".^[3] This was confirmed in 1998 in Attorney General's Reference (No. 3 of 1994),^{[c 1]} even where the foetus is viable and could have survived if born before the offence was committed.^[4] 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.^[5] 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.^[6] 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.^[7]

There is no legislation that defines when death has occurred. However, in Airedale NHS Trust v Bland,^{[c 2]} 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.^[8] 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.^[9] 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.^[10]

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,^{[c 3]} 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)^{[c 4]} where the defendant was acquitted. Such an intervening act is known as a "novus actus interveniens".^[11] The judgments of several judges in various cases, including Devlin J in R. v Adams^{[c 5]} 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).^[12] 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

"R v Evans [2009] EWCA Crim 650, [2009] 1 WLR 1999 holds that if a person merely facilitates another to create a dangerous situation for himself, that person may be held criminally liable for a homicide offence if that self-endangerment results in death. Evans's sister made an intervening choice to self-inject and it was her independent self-injection that was the direct cause of the dangerous situation. Evans's pre-existing duty of care was grounded on her act of supply and her awareness of the fact that her act of supply had facilitated the creation of a dangerous and life-threatening situation. Evans did not create the dangerous situation, but rather she merely made an indirect causative contribution to the dangerous situation. Furthermore, if she had merely supplied the drugs and had left the scene, and therefore had remained ignorant of the fact that her act of supply had resulted in a dangerous overdose situation, her act of mere supply per se would not have been sufficient for a conviction of gross negligence manslaughter."

Elsewhere Baker argues:

"In R. v. Evans, Gemma Evans, a 24-year-old woman, purchased heroin and supplied her 16-year-old sister, Carly. Carly self-injected in a house in which she resided with Evans (the defendant) and her mother. After injecting the drug she developed and complained of symptoms consistent with an overdose. Evans appreciated that Carly’s condition was very serious and indicative of an overdose and, together with her mother, Andrea Townsend, who was also convicted of manslaughter, believed that she was responsible for Carly’s care. “The appellant described in a later interview with the police that she had seen that Carly’s lips had turned blue, that she was ‘in a mess’, and was incapable of responding to attempts to speak to her. The appellant and her mother decided not to seek medical assistance because they feared that they themselves and possibly Carly would get into trouble.” Instead, they put Carly in bed with the hope that she would make a miraculous recovery. The defendant and her mother checked on Carly occasionally and slept in the same room, but tragically, Carly died during the night. The medical evidence demonstrated that the cause of death was heroin poisoning. Evans and Townsend were charged with manslaughter.... Lord Judge C.J. held that Gemma Evans assisted Carly Evans to create a dangerous situation and was aware of the danger she assisted Carly to bring about for herself and that these two factors gave rise to a duty of reasonable rescue. The mother was convicted on the basis of her parental duty, which required her to take reasonable steps to summon assistance. Since Evans was an older half-sister, she was not covered by the parental duty doctrine. Instead, a new law had to be minted to catch her conduct. The new law being that mere assistance gives rise to duty of care. Since Evans assisted her sister’s overdose by supplying the drug she had a duty to summon help once she realised her sister was in peril. This category of duty is a newly minted one. Arguably, the courts cannot create further situations (or declare further relationships such as roommate/roommate) where a duty will be imposed the breach of which will amount to manslaughter. Hence, the categories should be regarded as closed. Cases not covered by the aforementioned duties should not give rise to a duty of care. It is arguable that since the conduct in R. v. Evans (assisting another to create a dangerous situation for herself) is not covered by the R. v. Miller doctrine (perpetrating an act that directly creates a dangerous situation), nor by the category of duty as set down in R. v. Stone, the Court of Appeal should have held that Evans had no duty of care. There is nothing wrong with applying R. v. Miller to a manslaughter case, but the court extended the R. v. Miller doctrine to cover mere facilitation, and then applied that new doctrine to manslaughter. The category of duty created in R. v. Evans seems to contravene the ruling in R. v. Rimmington, which holds that judges cannot extend common law offences to cover new forms of conduct. It is one thing to apply an existing doctrine to new facts, and another to apply it to conceptually different conduct such as assistance rather than perpetration."

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.^[13] 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,^{[c 6]} even where the dangerous situation which results in the victim's death was not caused by the defendant.^{[nb 2][14]} 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.^[15]

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.^[16][17]

A person who is not "under the Queen's Peace" cannot be the victim of a homicide.^[9] This includes the killing of alien enemies during a time of war.^[16] 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.^[18] 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.^[19]

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.^[17]

Murder has never been statutorily defined, despite being recognised as either the most serious crime, or certainly among them.^[20] The actus reus (prohibited act) of murder, unlawfully causing the death of another person, fits the general provisions for homicide.^[21] 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).^[22][23] It is this mental component that marks murder out from manslaughter.^[23]

The mental element is taken to be either an intention to kill, or an intention to inflict grievous bodily harm.^[22][23] Grievous bodily harm is "really serious" harm.^[24] 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^{[25][c 7]} 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.^[26] The current law was judged to be compatible with Article 7 of the European Convention on Human Rights in relation to Northern Ireland.^[24] 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.^[27] 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,^{[c 8]} but that case has been considered overturned following legislative changes, and more recent cases leave no room for doubt on this issue.^[28]

Core intent would be where the defendant acted either to cause at least grievous bodily harm to the victim, or where the defendant acted to achieve some other aim, where the death caused was a necessary means to that other end. In general, the jury is directed that "intent" is to be taken as meaning what it does in ordinary life, and that the judge should not attempt to define it in other terms.^[29] However, following R v Woollin,^{[c 9]} it is also possible for a jury to convict if they "feel sure that death or serious injury was a virtual certainty (barring some unforeseen intervention) as a result of the defendant's actions and that the defendant appreciated that such was the case" – known as "oblique intent". Despite appearing to present an alternative to the primary, core sense of intent, courts have generally seen Woollin as allowing the jury to infer core intent from the evidence of virtual certainty. The jury are entitled to convict in these circumstances, and they should not be directed that they, finding virtual certainty, must convict. However, if it is difficult to imagine circumstances where a jury would find virtual certainty but not convict, which would support this complicating factor. The exception for medical care is mentioned as a general principle for homicide.^[30]

There is a mandatory life sentence for murder in England and Wales. David Ormerod describes the evidence for abolishing it – instead giving judges discretion to impose a life sentence, or some lesser term – as "overwhelming" since murders and murderers differ greatly, as in any other crime.^[31] However, no government has yet, or seems likely to, institute such reform. The former role of the Home Secretary in deciding the minimum time spent in jail was successfully challenged with reference to the ECHR in R v Home Secretary, ex p Anderson,^{[c 10]} but the mandatory life sentence itself has been judged compatible. The sentencing and release of life prisoners was reformed by the Criminal Justice Act 2003.^[32]