For many years, unlawful homicide has been characterised by two primary offences under the laws of England and Wales, although infanticide is a third, less common homicide offence. The two main unlawful homicide offences can be committed by either murder or manslaughter. The law defining homicide evolved from a combination of common law and the Homicide Act 1957.
As a result the required elements for the substantiating of each of the homicide offences have become submerged in a complex plethora of common law rules and judicial construction of the statutory requirements. In response to the uncertain and complex state of the law of unlawful homicide the Law Commission published a concise list of recommendations in 2006. The Law Commission’s 2006 recommendations call for a division of unlawful homicide under three separate heads.
In this regard the recommended approach attempts to distinguish between the stigma attached to the mental element of each offence of unlawful homicide and was particularly concerned that involuntary manslaughter was so intricately tied to murder and voluntary manslaughter that it results in unfair labelling. This paper argues that the Law Commission is right and that in order to properly distinguish between culpability for each unlawful homicide offence, involuntary manslaughter must be separated from manslaughter altogether.
In order to effectively argue for reform of the law relating to involuntary manslaughter, it is first necessary to examine the current law relative to unlawful homicide. As previously stated, unlawful homicide under current law is either manslaughter, murder or infanticide. In each case both the actus rea (the actual killing) and the mens rea (the mental element) must be established, although the latter is far more complex, requiring construction of causation and intent.
Brookeman provides some insight into the current complexities associated with the required mens rea for unlawful homicide and the levels of culpability as follows: “Whilst it is relatively straightforward to prescribe or define a particular act with particular consequences as a guilty act, it is far from straightforward to determine to what extent the act or its consequences were intended. In other words it has to be acknowledged that not all killings are intended and that there exists, therefore, different levels of culpability or guilt amongst perpetrators.
” It is obvious from Brookeman’s assessment of the current laws of unlawful homicide that fair labelling is entirely compromised. Unlawful homicide as it currently stands draws no specific distinction between the mental element involved in murder, encapsulating a single crime of murder. Manslaughter is divided into two categories, voluntary and involuntary manslaughter, but for all intents and purposes, they are essentially the same since they both attract identical sentences.