Murder is the unlawful killing of another with intent to kill but also includes cases where there was no intention to kill but intent to cause GBH. A minimum life sentence must be passed by the Judge if the accused were found guilty of Murder and can only be heard in the Crown Court as it is Indictable Only.
Even though someone may die as a result of the accused’s actions they may still not be guilty of murder, e.g. if the accused were acting in self defence. However the accused would not be able to claim they were acting under duress in a murder charge.
Whilst self defence and or alibi are general defences there are three specific defences to murder. These three defences however are only partial. They are only partial defences as if one was applicable then whilst the accused would not be guilty of Murder they would be guilty of Voluntary Manslaughter. However the effect of this would impact sentence. Manslaughter carries a maximum life sentence.
The three specific defences are:
- Diminished responsibility
In essence an abnormality of mind. The abnormality of mind would have to arise from a recognised medical condition and substantially impair the accused’ ability to understand their conduct, form a rational judgement or exercise self-control. The abnormality of mind would also have to provide an explanation for the accused actions/omissions. It does not have to be the sole cause of the killing but it would have to be more then merely trivial. Therefore it would not succeed if the accused would have killed regardless of the abnormality of mind. Clearly medical evidence will be imperative both for determining whether there is a recognised abnormality of mind but also to establish whether there was substantial impairment. Although medical evidence will be called the Jury is not bound to accept the medical evidence. It is for the defence to prove diminished responsibility however it only needs to be proven on the balance of probabilities.
- Loss of control
This is a relatively new partial defence that has been available since 2010. Prior to this there was a defence of provocation however this was abolished and is no longer available. Loss of control occurs where the deceased’s behaviour was such that any reasonable person would have lost control. However, there needs to be a qualifying trigger. Qualifying triggers include loss of control from a fear of serious violence from the victim and/or loss of control to things done or said which resulted in the accused having a justifiable sense of being seriously wronged. The loss of control does not need to be sudden, however, control must be lost and the accused cannot act in revenge. If the defence want to raise loss of control then a Judge has to decide if there is sufficient evidence to put the partial defence to the Jury. If it is then the burden is on the Prosecution to disprove it.
- Killing in pursuance of a suicide pact.
A suicide pact means a common agreement between two or more people for them all to die. It does not matter if the agreement is to take their own lives, or to kill each other. However, the accused must intend to die in the pact, it does not matter if they went onto die or not as clearly this partial defence only applies if there is a survivor of a suicide pact. If the accused merely assists in a suicide and did not intend to die themselves then they would not be able to raise this partial defence and may be liable for prosecution for an alternative offence of assisting a suicide. It would be for the accused to raise killing in pursuance of a suicide pact. However it would only have to be established on the balance of probabilities.
If someone is killed but there was no intention to kill or cause GBH then you may still be guilty of Involuntary Manslaughter. There are two types of Involuntary Manslaughter.
- death resulting from someone acting grossly negligent
Involuntary Manslaughter under this heading can be broken down into four elements. Firstly there must be a duty of care to the victim. Secondly there must be a breach of that duty. Thirdly the breach must cause death and lastly the breach was so bad that it was grossly negligent and therefore a crime. It is usually brought against business owners and or people in a position of responsibility and although the maximum sentence is life imprisonment any potential sentence can vary significantly.
- death resulting from an unlawful/dangerous act
Involuntary Manslaughter under this heading is broken down into three elements. Firstly there must be an unlawful act although it need not be directed towards the victim and or any other person. However there must be an act, omissions will not suffice. Secondly the unlawful act must be dangerous. This is taken as an objective test and therefore whether a sober and reasonable person would recognise the act was dangerous and would subject the victim to some harm. Lastly the unlawful dangerous act must cause death.
Attempted Murder is also indictable only and carries a maximum sentence of life imprisonment. Whilst it shares many of the characteristics of Murder there are two clear differences. Firstly and obviously there is no death. However to be found Guilty of Attempt Murder there has to be an intention to kill, an intention to cause GBH will not suffice. If the prosecution cannot prove an intention to kill then an Attempt Murder charge will not succeed. The Prosecution in these circumstances may therefore prefer a charge of GBH with Intent (S.18).
Nb. This guide is intended to give general information only and not intended to be used as the basis upon which Advice is given nor should it be relied upon as giving advice specific to a case or individual and Lawtons do not accept liability for anyone using this guide. Should you require specific advice in connection with a real case or situation, please contact us immediately so that we can provide specific Advice