The laws relating to murder and manslaughter

The understanding and application of the Laws relating to murder Voluntary Manslaughter and Unlawful Act Manslaughter. Having taken drugs prescribed by her doctor, Ann went to a bar with a crowd of her friends. Standing close by was another group, including Ben, who was behaving aggressively. Ann, who by this time had drunk half a bottle of wine, suddenly kicked Ben in the groin and then punched him in the face whilst she was holding a glass. The glass broke and cut Ben so badly that he lost the sight in one eye. Later, Ann insisted that she thought that Ben was about to attack her and that she had forgotten that she was holding the glass.

In the confusion that followed, Ben's friend, Charles, became enraged and chased one of Ann's friends, Derek, out of the bar and down to the river. Derek was very frightened and threw himself into the river to escape. Charles, still shouting and waving his arms about, walked away after seeing Derek struggling, but apparently failing, to keep his head above water. In fact, Derek could not swim and drowned shortly afterwards. Murder is a common-law offence and according to the Homicide Act 1957 has the mandatory life sentence of 25 years; the classic definition of murder is that of coke:

'Murder is when a man of sound memory, and of the age of discretion, unlawfully killed within any country of the the realm and reasonable creature in rerum natura under the kings peace, with malice aforethought, either expressed by the party or implied by law, {so as the party wounded, or hurt, etc die of the wound or hurt, etc within a year and a day after the same}' 'A man of sound memory and of the age of discretion' means simply a person who is responsible according to the general principles which have been discussed above. Such the person is over the age of nine.

If the act was done before 30th September 1998 and he was then under 14, he had a 'mischievous discretion'. He is not insane within the M'Naghten Rules. Since 1957, he does not suffer from diminished responsibility. A corporation cannot be tried for murder because it cannot suffer the only penalty allowed by law, life imprisonment. The actus Reus of killing can be by an act or omission, but in must cause the death of the victim. Usually in murder cases, the actus reus is an act. But failure to act can make a person liable for an offence.

This applies to murder, as seen by the case of Gibbons and Proctor (1918) Where the father of a seven year old girl and his mistress kept the girl separate from the fathers other children and deliberately starved her to death. The father had a duty to feed her because he was her parent and the mistress was held to have undertaken to look after the children, including the girl, so she had a duty to feed her. The omission and failure to feed her was deliberate with the intention of killing or causing serious harm to her.

In this circumstance they were both found guilty of murder. The failure to feed the girl was enough for the actus Reus of murder. Mens rea means a guilty mind and refers to the state of mind of the accused at the time the actus reas is committed. Mens rea and actus reas must exist at the same time for a person to be committed of murder. Each offence has its own level of mens rea. To be guilty, the defendant must have at least the minimum level, the highest being Intention; this is also referred to as specific intention. Other main types are recklessness and negligence.

The mens rea for murder is stated as being 'malice' aforethought, express or implied'. This means that there are two different intentions, either of which can be used to prove the defendant guilty of murder; . Express malice aforethought, which is the intention to kill any person or; . Implied malice aforethought, which is the intention to cause grievous bodily harm. A defendant has the mens rea for murder if he has either of these intentions. This means that a person can be guilty of murder even through they did not intend to kill. This was decided in Vickers (1957)

In 1960 in the case of DPP v Smith the House of Lords laid down a largely objective test of liability in murder-the test was 'Not what the defendant contemplated, but what the ordinary reasonable man or women would in all the circumstances of the case have contemplated as the natural and probable result' Liability for most crimes is based on the performance of an act, but it may also be based on a failure to act – an omission. There is no general liability for omissions, for example watching a Derek drowning and doing nothing to save him. In reference to the Miller principle.

Although there may be a strong moral duty to act in such circumstances, there is generally no legal obligation to do so. However, because of the presence of duty situations in English law, it is possible to be criminally liable for a failure to act in certain defined circumstances. R v Gibbons and Proctor (1918), Voluntary assumption of a duty if someone voluntarily takes on responsibility for another person, he or she also assumes the positive duty to act for the general welfare of that person and may be liable for omissions that prove fatal.

Duty arising from dangerous prior conduct If Charles created a situation that causes harm, and subsequently becomes aware of the danger he has created, there arises a duty to act reasonably to avert that danger. R v Miller (1983 Intervening acts In deciding the thin skull rule, the defendant must also take the victim as he finds him. This is known as the thin skull rule, it means that if the victim has something unusual about his physical or mental state which makes an injury ore serious, and then the defendant is liable for the more serious injury. An example of the case of Blaue (1975)