Distinguishing between Murder and Manslaughter in Practice
| Author | Barry Mitchell |
| DOI | 10.1350/jcla.2007.71.4.318 |
| Published date | 01 August 2007 |
| Date | 01 August 2007 |
| Subject Matter | Article |
Distinguishing between Murder
and Manslaughter in Practice
Barry Mitchell*
Abstract The Home Office is currently engaged in a review of the homi-
cide law, which includes consideration of the Law Commission’s report
Murder, Manslaughter and Infanticide, published in November 2006, which
recommended three principal offences—first and second degree murder,
and a redefined manslaughter. Through an analysis of a sample of murder
and manslaughter prosecutions, this article offers some timely evidence of
the way in which the law works in practice. In particular, it suggests there
is evidence—not mere anecdotes—that occasionally the verdicts reached
by the courts do not seem to sit comfortably with the law as stated in
books, and that whilst some of these apparent ‘discrepancies’ may be
attributed to the vagaries of the jury, it is likely that the way in which
those who investigate, prosecute and defend homicide cases also play an
important role here.
Homicide is one of the relatively uncommon parts of the criminal law
where more than one offence is recognised which deals with the same
element of harm:1the two principal crimes—murder and
manslaughter—are distinguished essentially on the basis of different
degrees of moral blameworthiness. The Law Commission has recently
published its final report recommending significant changes to the
structure and content of the substantive criminal law on homicide.2
The report suggests increasing the number of offences by distinguishing
between two degrees of murder and then confining manslaughter to the
situations currently categorised as ‘involuntary’ whilst redefining
the specific offences. Only first degree murder would continue to attract
the mandatory sentence: for second degree murder and manslaughter
life imprisonment would be discretionary.
The Commission proposes that the three main offences would be
distinguished through the ‘ladder’ principle which reflects variations in
moral fault.3Thus, first degree murder would require either an intent to
kill or intent to cause serious injury together with an awareness of a
serious risk of causing death.4Second degree murder would comprise
a bare intent to cause serious injury, or an intent to cause some injury or
fear or risk of injury together with awareness of the risk of causing
* Professor of Criminal Law and Criminal Justice, Coventry University; e-mail:
lsx022@coventry.ac.uk.
1 The other obvious example is found in ss 18 and 20 of the Offences against the
Person Act 1861 which define unlawful wounding or grievous bodily harm, with or
without intent.
2 Law Commission, Murder, Manslaughter and Infanticide, Law Com. Report No. 304,
HC 30, 29 November 2006, available at www.lawcom.gov.uk/lc_reports.htm, accessed
22 May 2007.
3 Ibid. at para. 2.24.
4 i.e. a slightly narrower version of what is currently murder.
318
death, or where a partial defence of provocation, diminished respons-
ibility or suicide pact is successfully pleaded to first degree murder.5
Manslaughter would constitute killing through gross negligence as to
causing death, or killing by a criminal act where D intended to cause
injury or was aware of a serious risk of causing injury.6The Commission
felt it is necessary to increase the number of principal offences to make
the differences between them more morally intelligible and morally
defensible.7The intent to cause serious injury rule makes the current
definition of murder over-inclusive; yet simultaneously the definition is
under-inclusive by failing to recognise as murder cases where D realised
there was a serious risk of death but went ahead regardless.8
There is evidence that the public favour separate offences reflecting
varying degrees of moral blame, but it is impossible to discern any
common pattern or classification.9Indeed, respondents often found it
difficult to express any clear statements about where they would draw
the line between one offence and another, as well as identifying the
labels they would attach to the offences. The adoption of a ‘ladder’ of
homicide offences, with two degrees of murder beneath which would
fall the offence of manslaughter makes ‘moral sense’,10 although further
room for improvement has been identified. Some, such as Tadros, seem
adamant that a hierarchy of offences is needed which should ‘differ-
entiate carefully between different levels of culpability’.11 The difficulty
is in identifying which factors are sufficiently important to affect the
level of culpability reflected in an offence label, and which can be
catered for at the sentencing stage. As Tadros notes, precise definitions
would promote consistency in the way the law is applied, but at the
expense of flexibility. Alternatively, different offence categories can be
defined in broad terms to allow for flexibility, but at the risk of incon-
sistency: ‘[d]isagreement between different juries about which factors
are morally relevant and the weight to be assigned to them will result in
factually similar cases being categorised differently’.12
This article provides some evidence of how the current substantive
law works in practice, and suggests that Tadros is right to be concerned
about different juries using their discretion to different effect. Indeed, it
is not only the discretion of juries that seems to affect the offence for
which a defendant is convicted, but also the way in which the police,
prosecution and defence lawyers, and judges perform their roles. The
possibility, though, is that however different categories are defined in
5 i.e. either the lesser form of what is currently murder, or what is currently reckless
manslaughter, or what is currently voluntary manslaughter (albeit with
redefinitions of the partial defences).
6 i.e. a slightly tweaked and reduced version of what is currently involuntary
manslaughter.
7 Law Commission, above n. 2 at para. 2.4.
8 Ibid. at paras 2.5 and 2.6.
9 See B. Mitchell, ‘Public Perceptions of Homicide and Criminal Justice’ (1998) 38
British Journal of Criminology 453–72.
10 W. Wilson, ‘The Structure of Criminal Homicide’ [2006] Crim LR 471 at 485, who
was commenting on the Law Commission’s consultation paper (see below n. 13).
11 V. Tadros, ‘The Homicide Ladder’ (2006) 69 MLR 601 at 617.
12 Ibid.
Distinguishing between Murder and Manslaughter in Practice
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