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The actus reus of manslaughter, that of one person unlawfully killing another during the Queen’s peace, is exactly the same as that of murder. However, differentiating manslaughter from murder is the requirement of ‘malice aforethought’, or ‘intent’ as we would refer to it today. If a person intends to kill another, it is said that they are more blameworthy than if they had no relevant intent.

What needs to be intended?

To be guilty of murder, the actus reus (above) and the mens rea of ‘intent’, as well as a lack of defence, must be proven by the prosecution. There are two types of intent capable of satisfying the mens rea requirement: express malice, an intent to kill; and implied malice, an intent to cause grievous bodily harm (GBH). While it may seem odd that someone can be found to be a murderer where they only intended to cause serious harm, R v Cunningham [1981] says that serious harm is likely to result in death and a defendant is responsible for the result of his actions. The Law Commission proposed in 1989 that implied malice should be altered to require an awareness that death might be caused, however this was rejected.

There are varying opinions on the implied malice, or ‘GBH murder’ rule. Lord Mustil in A-G Reference (No. 3 of 1994) [1997] said that the rule was an outcropping of old law, whereas Lord Bingham in R v Rahman [2008] said that although the rule lacks logical purity, there is an element of ‘earthy realism’ to it. Finally, Lord Steyn in R v Powell [1997] illustrated that coupled with the rules on joint enterprise (as extended by R v Gnango [2011]), the GBH murder rule is dissatisfactory, advocating the addition of the Law Commission’s awareness criterion. Perhaps the rule is justified by the blame principle: that someone should be held accountable for another’s death.

The historic constructive malice rule, which allowed defendants to be convicted murder if they intentionally committed a felony or resisted lawful detainment was abolished by the Homicide Act 1957.

The target of the intent

A defendant can still be convicted of murder where his intent was incorrectly targeted. In R v Gore (1611), Gore poisoned his wife’s medicine, intending to kill her. Gore was found guilty of murdering a different person who consumed the poison. This rule of transferred malice is applicable to a variety of different offences, including battery, as illustrated by R v Latimer (1886). A more recent case is that of R v Grant [2014]. Grant intended to kill one person, but failed and instead caused GBH to another person. He was convicted for both attempted murder to the first person and causing GBH to the second person. Similarly, in A-G Reference (No. 3 of 1994) [1997], the defendant’s malice was transferred to the unborn baby upon death. An interesting application of the transferred malice rule is R v Gnango [2011], where by this rule, it could be inferred that Gnango was a party to his own attempted murder.

The level of intent

Having established that a defendant must either intent death or GBH to his victim, what happens if the defendant was uncertain whether the victim would die or not? In R v Moloney [1985], Lord Bridge defined the golden rule, which stated that a judge should not elaborate on the meaning of intent; it is for the jury to decide on the plain meaning of the word whether the defendant intended either death or GBH. The only exception to this rule would be if the judge thought that the jury might misunderstand the meaning of the word.

However, two cases have since modified this jury direction slightly. In R v Nedrick [1986], the defendant set fire to his house, not intending to kill anyone, but a child in the house died. Nedrick said that if a jury would be unable to find actual intention, a judge could direct a jury that intent may be inferred if the death which occurred (or GBH) was a ‘virtual certainty’. R v Woollin [1999] is the current authority on this point, modifying the Nedrick rule only slightly in that a jury might find, as opposed to infer, intent if the act was virtually certain. Once the Woollin direction is given, a jury may only find intent if the death was both virtually certain objectively (i.e. to the reasonable person) and virtually certain in the mind of the defendant. It should can u buy xanax over the counter also be noted that virtual certainty is a rule of evidence and not a rule of law. It is for the jury to conclude whether the death was virtually certain and whether therefore the defendant intended the death: in R v Matthews and Alleyne [2003], a judge failed to recognise this point, instead requiring the jury find intent if the death was a virtual certainty.

R v Stringer [2008] illustrates the logic behind the virtual certainty test, and R v Royle [2013] confirms that Woollin direction must be given by a judge if the defendant’s purpose extended beyond just causing death (oblique intent as opposed to direct intent); but rather that death was virtually certainty in the attainment of a wider ambition. DPP v Smith [1961] confirmed the subjective element to the virtual certainty test, and R v Moloney [1985] and the overruling of Hyam v DPP [1975] show that neither a natural and probable consequence, nor a high probability is enough to be classed as a virtual certainty. Section 8 of the Criminal Justice Act 1967 requires a jury to look at all the evidence in the case before applying the virtual certainty test.

The difficulty with the virtual certainty test can be illustrated by the scenario where a terrorist plants a bomb in a shopping centre with an intent to make a statement, and not to kill. If that terrorist notifies everyone that a bomb is going to go off after a certain period of time and people accordingly start to evacuate, he clearly doesn’t intent to kill. However, if the bomb malfunctions, or goes off at the hands of a bomb disposal expert, causing death, is the defendant guilty of murder. The virtual certainty test would suggest not, as there was still no intent, but death was also not a virtual certainty, as the defendant would not satisfy the subjective element of the offence. Numerous authors have suggested solutions to this problem: Lord Goff suggests replacing virtual certainty with the Scottish ‘wicked recklessness’ (and Glanville Williams attempts to rip this suggestion to shreds), and Simester and Sullivan suggest simply reverting back to the golden rule and asking whether terrorist intended to cause death (though this is both uncertain and appears to be looking for moral judgments). Norrie has a different take on the development of direct and indirect (virtual certainty) intent; suggesting that judges are simply making moral judgments but justifying them with legal jargon and therefore that R v Woollin [1999] is not as conclusive as it first seems.

The result

The importance of intent cannot be understated. If intent is found, the defendant is labelled as a murder and a life sentence is mandatory. This is opposed to the offence of manslaughter, which gives judges sentencing discretion. In 2013, the European Court of Human Rights rejected that a life sentence could mean imprisonment for life, in Vinter v UK [2013], however this was disagreed with by the Court of Appeal in R v McLoughlin [2014]. The Law Commission consider that murder and manslaughter should be completely overhauled as follows, in line with their ‘virtual certainty requires awareness of risk of death’ philosophy:

  • First degree murder (mandatory life penalty)
    • Killing intentionally.
    • Killing where there was an intention to do serious injury, coupled with an awareness of a serious risk of causing death.
  • Second degree murder (discretionary life maximum penalty)
    • Killing where the offender intended to do serious injury.
    • Killing where the offender intended to cause some injury or a fear or risk of injury, and was aware of a serious risk of causing death.
    • Killing in which there is a partial defence to what would otherwise be first degree murder.
  • Manslaughter (discretionary life maximum penalty)
    • Killing through gross negligence as to a risk of causing death.
    • Killing through a criminal act:
      • intended to cause injury; or
      • where there was an awareness that the act involved a serious risk of causing injury.
    • Participating in a joint criminal venture in the course of which another participant commits first or second degree murder, in circumstances where it should have been obvious that first or second degree murder might be committed by another participant.

I would recommend that you give the report, from which this is taken, a scan over if this topic interests you; it is located here – it gets interesting as of page 15. Just remember that it isn’t law yet.

Next: Voluntary manslaughter

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