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Most people know that murder and manslaughter are charges that can arise where a person has been unlawfully killed. However, the difference between murder and manslaughter is perhaps less widely known. The key difference between murder and manslaughter is the mental intention of the defendant at the time of events. A person who kills a person ‘with malice aforethought’ will be guilty of murder. A person who kills another person in circumstances where this mental intention cannot be proved may be convicted of manslaughter. Whereas manslaughter can result in a life sentence where aggravating factors are present, when it comes to murder, the courts are required to hand down a life sentence. In some circumstances, murder conviction could even result in you spending your entire life behind bars; this is known as a ‘whole life order.’ The conviction you walk away with at the end of the day depends on the view formed by the jury in respect of your culpability. A good criminal defence team will help the jury understand what was going through your mind at the time of events, so that they get to see both sides of the story.
In order to convict a person of murder, the jury must conclude that the perpetrator unlawfully kills another human being with the intention to kill them or cause grievous bodily harm. The courts have determined that the legal test is that the defendant must have felt sure that death or serious bodily harm was a ‘virtual certainty’ as a result of their actions. By contrast, in order to be charged with attempted murder, the court must find that you intended to kill the person, not simply to cause them serious harm.
In order to be capable of forming the mental intention for murder, the perpetrator must be ‘of sound mind and discretion’ i.e. they must be considered to be sane. This is usually proven by way of a report by an expert psychiatrist.
The charge of murder can only be brought against an individual, not a company. It does not apply to killings that take place within a war. Murder only applies to the killing of a person who has been born, therefore it does not apply to the killing of an unborn foetus. Where a partial defence such as diminished responsibility applies, a person cannot be convicted of murder but they could be convicted of manslaughter.
There are three different types of manslaughter: murder where a partial defence applies; gross negligence manslaughter, and unlawful act manslaughter.
Murder where a partial defence applies
In some circumstances, you could be charged with murder but convicted of manslaughter. This could occur where you are found to have unlawfully killed the victim, but you have succeeded in proving a partial defence.
One of the partial defences that is available is diminished responsibility, which is where you can prove that you were suffering from a mental abnormality as a result of a recognised medical condition at the time of the incident. Another is loss of control, which replaced the partial defence of provocation. To succeed in establishing loss of control, you must show that you lost control pursuant to a ‘qualifying trigger’ in circumstances where a person of your sex and age, with a normal degree of tolerance and self-restraint might have acted in a similar way.
Finally, a partial defence could apply in circumstances where you made a suicide pact with the deceased, but you did not succeed in taking your own life. If one of these partial defences is convincingly raised before trial, the prosecutor may choose to amend the count to manslaughter.
Gross negligence manslaughter occurs in circumstances where a gross breach of a person’s duty of care results in another person’s death. A duty of care only arises in specific circumstances where one person has assumed a responsibility over another. The breach of duty must be so severe that it should be considered a crime.
For example, a doctor who grossly miscalculated the dosage of their patient’s medicine, resulting in their death. Another example could be an aeroplane pilot who was grossly negligent in the handling of the plane resulting in the death of passengers. Gross negligence manslaughter can also occur in the context of deaths in police or prison custody. The courts have held that in order for gross negligence manslaughter to be made out:
Unlawful act manslaughter
This is where you committed an unlawful and dangerous act that resulted in another person’s death. The test of whether the act was dangerous is an objective one. In order to be convicted of unlawful act manslaughter, the court must find that you committed a criminal act with the appropriate mens rea (mental intention).
An example could be an act of vandalism that damages a public bus, which then causes the bus to crash and people to die. Unlawful act manslaughter could apply where you intentionally use a low level of force against someone, not intending to seriously harm them, but the force causes their death.
Another example comes from a real case, where a person became engaged in an argument with their girlfriend, which escalated to a physical fight. They knocked their girlfriend unconscious and wrongly believed that they had accidentally killed her. The perpetrator dumped the girlfriend’s body in the river, not realising that she was still alive. She subsequently drowned.
There is a legal presumption against bail if you are charged with murder or manslaughter. This means that the default position is that you will be remanded in custody.
If you have been charged with murder, attempted murder, or manslaughter, you will only be granted bail in exceptional circumstances. In cases of murder, the court must be satisfied that there is no significant risk that if you were released on bail, you would commit an offence that would be likely to cause physical or mental injury to another person. In reaching this decision, the court will consider the nature and seriousness of the offence, your character and any previous convictions, and your record in relation to previous grants of bail.
A life sentence comprises a minimum term to be served in prison, which is set out in statute based on the features of the offence. The minimum term for murder could be 15, 25, or 30 years depending on the circumstances of the case. A ‘whole life’ minimum term can be imposed in cases of multiple murders, with significant pre-meditation particularly where there is evidence of sexual or sadistic conduct. In rare cases, a whole life order can be imposed where there is a single murder with serious aggravating features such as the killing of Sarah Everard by Wayne Couzens. Where the offender is under the age of 18, the minimum term is 12 years.
After you have served your minimum term, you will appear before the parole board who will consider whether it is appropriate to release you. The parole board will consider whether you continue to pose a risk to the public, and what your licence conditions should be. Once you are released, you will remain on licence for the rest of your life. Being on licence impacts upon where you can live, whether you can travel abroad, and the types of jobs you can obtain. It also means that if you commit further offences or if you are considered to pose a risk to society, you could be recalled to prison.
If you are convicted of manslaughter, you could receive a life sentence, but this will not always be the case. You will only receive a life sentence for manslaughter if the court considers that you pose a danger to the public. For less serious cases, you could face a fixed term custodial sentence where you spend half your sentence in prison, and the second half in the community. In some circumstances you may receive a community order. You could also receive a suspended sentence. See the Sentencing Council’s guidance for more information.
If you have been charged with murder or manslaughter, instruct a good criminal defence solicitor as soon as possible. Raising any defence that is relevant to your case at an early stage will give you the best possible chance of obtaining a favourable outcome. At Stuart Miller Solicitors, we understand that you are likely to be experiencing a great deal of anxiety during these troubling times. We will help make the process easier for you by providing top quality representation. Contact us for a no obligation consultation today.