On Homicide (Part 1).
This essay is a series of notes based on my study of criminal law, specifically homicide. This is based on the law in England and Wales, in other parts of the world, this will be very different. We will be, considering the types of killings that are labelled as murder, when it is correct, to apply the mandatory life sentence, and also reviewing the homicide rates in England and Wales.
We will also discuss actus reus and mens rea, which I’ve discussed before. I do want to get a good understanding of the distinction between murder and manslaughter and why sometimes not so clear-cut.
What does homicide mean? This is quite straightforward. It is when one human being is killed by another human being. In reality, this encompasses a massive range of behaviour.
Let’s think this through.
At one end of the scale, we may have accidental killings. Imagine you’re walking down the street, and you accidentally bump into a man, who then drops dead. In this case, you would not be criminally liable. On the other side of the scale, you may plan a large-scale terrorist attack that kills hundreds or thousands of people over a period of months or years. In this case, you would have a huge amount of criminal liability.
Between these two extremes lie other types of cases. These include partial defenses, voluntary manslaughter, and involuntary manslaughter.
Lawful homicide is the first category. It includes self-defence or a professional, like a police officer, killing an armed criminal. All other homicides are unlawful. Murder and manslaughter are the two main subdivisons. Voluntary and involuntary manslaughter are the subdivisions of manslaughter.
Let’s jump into a bit more detail on each of these. Murder is when the defendant intends to kill the victim. Auto caused a severe injury. This is the most serious and blameworthy type of homicide and thus comes with a mandatory life sentence.
Voluntary manslaughter is when someone is charged with murder, but is able to successfully raise a partial defence. I will explain this later in the essay. The intention to kill or cause serious injury is present, but there is something else going on. This is usually related to the mental state of the accused. For example, they may have diminished responsibility or loss of control. It could also be a suicide pact.
Involuntary manslaughter occurs when a defendant is reckless or grossly negligent, or when a victim dies as a result of another criminal offence the defendant was undertaking. It is similar to murder in terms of result, but the defendant had no intention to kill or cause serious injury to anyone. However, the outcome was still fatal.
It is important to remember that the only difference between these offenses is the mental state of the actor. The act itself, or the “actus reus” is the same. In other words, the same act of killing another person has been committed in all of these offenses.
The public often finds this part of the law surprising. I have explained it to several people, and it takes a while for them to understand. However, once they do, it makes sense. We don’t want to hold people criminally liable if they did not a Mens Rea.
In fact, nobody should be held criminally liable for any action they could not have prevented or foreseen.
This was highlighted in the case of Sally Challen, a wife, who murdered her husband with a hammer, and then later had her conviction reduced to manslaughter on the basis of diminished responsibility. This was due to the evidence of covert coercive control that she suffered at the hands of her husband for decades. This case is very controversial because coercive control was something new at the time but also because it does something quite strange. Essentially moves the guilt and the burden of proof over from the killer to the killed. Sally’s husband was obviously not present to defend himself against the allegations of coercive control.
I’m not sure how I feel about this. Obviously, Sally Chelan must’ve had an extremely difficult marriage for her to use a hammer to continuously strike her husband’s head until he was dead. This is not something that anybody does lately. And so, I am open to the possibility of coercive control, but that doesn’t mean that killing is acceptable. You can be a bad husband, and you can even be a rapist, but that doesn’t mean you should be killed with several hammer blows to the head. A
nd we also have to consider how this could be open to abuse both by men and women in the future. The best way forward will be to continuously and vigorously evaluate each case on a case-by-case basis, based on the evidence available, and the testimonies of a defendant.
Moving on, it is interesting to note that many people feel that crime is generally on the rise while it is gone down significantly, especially since the 1990s. I’ve read exclamations about why the late 80s and 90s had a crime boom, especially in the US. Some say that this was linked to issues decades earlier, where non-marital sex became far more common and lead to a lot of unwanted pregnancies, but abortions were not yet mainstream. This led to a significant number of youth growing up in a one-parent family, which statistically is far more likely to lead to a life of crime than a child that grows up in a complete family unit.
Thus, proponents of this idea, state that the reason for crime going down in the 90s was because in the 70s birth control had become far more popular and so they were fewer children being born who would’ve been criminals 15 or 20 years later.
This is an interesting idea, and I’m not sure how accurate it is. It may be a partial explanation, but I am sure that there are also significant amounts of other explanations such as gang culture, the increase in drugs, social alienation, and the economy as a whole.
Because the reality of things is that middle and upper-class teenagers do not go around committing petty crimes – they are doing their homework, they’re doing extracurricular activities and then preparing themselves to be integrated as adults into society.
However, this trend is not true all over the world. In many places, crime is going up, especially murder and homicide.
The statistics out of Latin America are incredibly crazy. I believe that last year Brazil had something close to 65,000 murders. To put that into perspective, Italy had 250 murders. Yes, Brazil does have a larger population, but even if you normalize the two numbers, the difference is still orders of magnitude.
Now the question is to be asked why? Is it that Brazilians are naturally more violent? Or is there something else behind this? From what I understand, this is likely to be related to the drug trade in the control of territory and critical trafficking areas in Brazil.
Let’s get back to murder, and how we punish it, at least in the UK. In most countries, murder is perhaps the most serious criminal offence. I can think of a few worse crimes, perhaps only ones that are related to sexually abusing children, or some type of torture, especially the ones where the victim lives, but has to deal with trauma their entire life.
Because murder is such a serious offence, this is reflected in the fact that the punishment is a mandatory sentence of life imprisonment. Manslaughter can also carry a maximum sentence of life imprisonment, but since this can range from a complete discharge weather dependent, walks free from caught up to life in prison. We will discuss why manslaughter should have such a significant variance in sentencing and why this is a good thing.
In England and Wales, a life sentence is not what you might think. It usually involves a minimum prison sentence, usually 15 or 30 years. This depends on the circumstances of the murder, such as its viciousness, and the defendant’s level of remorse. The average time spent in prison for murder is 17 years. After this, the person is released but remains on parole and license for the rest of their life. If they commit further crimes or are deemed a risk to the public, they can be recalled to prison.
In some cases, an offender can be given a life sentence with a whole life tariff stop. This means that they will never leave prison. There aren’t that many of this type of sentence. As of June 2020 only 66 whole-life prisoners in England and Wales were incarcerated.
However, not all intentional killing is always as bad as you may think. This may sound strange, but let’s think it through.
Imagine an elderly couple who have been married for 66 years. They have never faced any major issues in their marriage. Everyone who knows them can vouch for this. Suddenly, the husband is diagnosed with a terminal illness, such as cancer. He is undergoing treatment, but the prognosis is that he will die within the next 12 months. Despite the medication given by the doctors, he is in immense pain.
One day, his wife can no longer bear to watch him suffer and decides to end his life. She suffocates him with a pillow while he is sleeping. In doing so, she has shortened his life by a few months, which would have been filled with agony and no quality of life.
The question we need to ask ourselves is whether we should treat this old lady in the same manner as a hardened serial killer. In my opinion, it would be against the spirit of the law to do such a thing. We should and must recognize the differences in crime, the mitigating factors, and the aggravating factors when we consider sentencing.
And this is why the law has developed three partial defences to murder. The first is called loss of control, the second is diminished responsibility and the third is suicide pact.
If a defendant successfully uses one of the defences, this will reduce their liability from murder to voluntary manslaughter, which is precisely what happened to Sally Challen as discussed earlier.
I did write an essay about criminal liability, and the equation used to calculate criminal liability. It may be worth reading this at this point.
Should we impose a mandatory life sentence for murder? This is an interesting point to ponder. We must remember that there are various kinds of behaviour that fall under the category of murder. Should we depend on legal defences that reduce the charge to manslaughter or should judges have more freedom to decide how to sentence offenders who have committed murder?
One thing that surprised me when starting to study criminal law, is how much reliance there is on what is called common law. This is law that organically develops based on the decisions of judges in cases. These decisions can set a precedent that binds future decisions in similar cases.
What is interesting is that murder is a common law offense, defined by the 17th-century judge and legal offer sir Edward Koch.
When any man of sound memory, and of the age of discretion, unlawfully killeth within any county of the realm any reasonable creature in rerum natura under the King’s peace, with malice aforethought.
This uses some archaic language, which is not typically used today. The definition of homicide, including murder, is “the unlawful killing of another human being under the Queen’s peace.”
There are several elements that must be proved by the prosecution. Homicides are result crimes; this means that the actions of a defendant must’ve caused specific harm to the victim.
The key things that the prosecution must prove are that the victim was a human being; this is usually a given. That the victim is dead, again typically is a given, but it can get complicated if a person is missing and nobody has been found. Finally, they have to prove that the defendant caused the victim’s death.
There are some further complications to all of these, and we will focus on causation, but I do want to spend a few words on the first and second issues.
With regards to proving that the victim was a human being, we do have to consider the fact that a child only legally becomes a human being after they are born. For the law, life begins when the child has fully left the mother’s body. So, if a defendant kills a fetus, they are not guilty of murder but likely will still be guilty of some other serious offence, such as child destruction. If a child, who is in the womb, suffered injuries due to the actions of a defendant, and then was later born, and then died due to those injuries the defendant may be guilty of manslaughter.
I mentioned missing bodies, but also proving that the victim is dead is now sometimes difficult due to the advancement of medicine. We are able now to keep people artificially alive by continuing to assist their breathing and their heart functions, even when they’ve had a brain stem death.
So, the courts have to develop legal rules to define death, which now, because when there is a clinical diagnosis of brain stem death, regardless if a victim is still breathing and has a beating heart.
Now, let’s discuss causation. In some cases, it is simple to prove that one person’s actions caused another’s death. But in other cases, it is more complex. To deal with this, the courts created legal rules and logic. It’s a delicate balance. No one should be found guilty of a crime they didn’t cause. At the same time, defendants must not be able to blame others or external factors for the consequences of their actions.
Two tests are prosecution must pass with regards to causation. The first is factual causation, and the second is legal causation. The factual causation test is sometimes called the ‘but for’ Test. The prosecution must prove that, but for the defendant’s conduct, the person wouldn’t have died. In other words, if a defendant didn’t do what they did, with the victim still died?
If the answer is yes, then the defendant is not guilty, because if they didn’t do anything that person would still have died in the same manner at the same time.
In R v White (1910), an interesting case unfolded. The defendant had poisoned the victim’s drink with the intent to kill her. The victim took a few sips and then fell asleep, but died later that night. Medical evidence showed that the death was caused by a heart attack, not the poison. Therefore, the defendant was not guilty of murder, as the victim would’ve died regardless. But the defendant still faced charges of attempted murder.
One would imagine that factual causation is all that is required in a court of law. But this can lead to some strange jumps and logic. If I invite you on holiday and book you a flight ticket, am I responsible for your death if a plane crashes? After all, if I hadn’t invited you on holiday, you wouldn’t have boarded the plane, and would not have died.
So, following a purely factual path would lead to this perverse logic, where I am guilty of your death. However, it is pretty clear that I have no moral responsibility for your death on a plane just because I invited you on holiday. And this is why we need the legal causation test, because this establishes wherever the defendant is morally responsible for the result of their actions.
The way we usually look at legal causation is to ask the question: was the conduct of the defendant, a substantial and operating cause of a result?
If yes, then the defendant is guilty of the crime because you have proven both factual causation and legal causation. It’s no; then, it doesn’t matter that factual causation was proven because there is no legal causation as the defendant is not morally responsible for the outcome.
Of course, the next question that comes to mind is what the hell does a “substantial an operating cause of a result” actually mean?
Let’s tackle this one by one.
When we say substantial cause, we mean that the defendant’s conduct must have more than a slight or trifling link to the result. It is important to note that the conduct does not need to be the sole or even the main reason. For instance, a man who uses a human shield during a shootout with the police does not actually pull the trigger to kill the person that they’re using as a human shield. It may well be a police bullet that kills the innocent human shield, as a policeman fire back to save their own lives.
When discussing the operating calls, we need to consider the victim’s response to the defendant’s acts. Almost all responses by the victims will never break the chain of causation. This is especially true of the victims, specific physical and psychological characteristics. This is often known as the eggshell skull principle.
Essentially, you must take your victim as you find them. If you punch someone in the face, and they have a fragile constitution, and they die from your punch, you are legally liable for murder.
The chain of causation is only broken by a free, deliberate, and informed intervening act. In the above example, the policemen were not free because they had to fire back in self-preservation.
One obvious possibility where the chain of causation can be broken is when one person seriously harms another person, who then later dies in the hospital. Who is to blame here? Is it the original aggressor, or perhaps the substandard or negligent medical treatment by the doctors at the hospital? In general, courts have been very hesitant to prosecute doctors and medical staff in these cases.
Medical negligence will not break the chain of causation unless it was truly extraordinary and it made the original acts insignificant.
I’m uncertain what to think. Are we excusing hospitals, doctors, and nurses? Are we allowing inadequate care in emergency rooms and ICUs because medical staff know they won’t be held to account, especially if the patient was hurt by someone else? I’m playing Devil’s Advocate, but it’s worth considering.
I once read a book on the differences between the airline industry and the medical industry with regard to failure and how it was reviewed.
The aviation and medical industries have vastly different attitudes towards death. After a plane crash, a comprehensive and expensive investigation is launched to identify the cause and prevent future tragedies. This has led to a dramatic improvement in the safety and reliability of flying. Innovations in materials, instructions, and crew training have been made, and almost every system has a backup. I wrote about this in my essay about overcoming my fear of flying; you are never flying in a single aircraft because every major component has a backup.
On the other hand, in the medical industry, there appears to be a widespread culture of seeing incidences as isolated issues, not as something that can be fixed more broadly. In some ways, this is far more understandable due to the difference between the two industries. Typically only one person dies at a time when something goes wrong in the operating theatre, so it doesn’t make the news. In contrast, every time an aeroplane crashes, it makes the news.
This is it for part 1; I’ll go deeper into the Mens Rea of homicide in part 2.