Murder distinguished from Manslaughter: A Study in Criminal Culpability

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A brief analysis of the elements of Murder and Manslaughter

Determining whether an offender is guilty of murder or manslaughter may mean a world of difference for a defendant standing trial for the killing of a human being….

A difference between whether the accused will spend the rest of his or her natural life in prison ( or in some draconian jurisdictions, face the hangman or electric chair),

or be given a custodial prison term for just a few months or some years…..

The  early English modern law on murder can be traced to the writings of the the Chief justice, Sir Edward Coke (1552-1634) in his Institutes of the Laws Of England, which continues to inform the contemporary law today.

These legal tomes reveal that  the actus reus of murder is satisfied when D ‘unlawfully killeth any reasonable creature in rerum natura under the Queen’s peace’,

whilst the mental element in murder is known by the deceptively simple but misleading term, ‘malice aforethought’, which incidentally has little to do with a wicked state of mind or a killing that was premeditated, committed ‘with aforethought’;

Rather, the contemporary definition of the mens rea for murder requires the Prosecution adduce poof beyond reasonable doubt of an intention to kill or cause grievous bodily harm (gbh) (Moloney [1985] AC905).

Such a mental state, however, is not a prerequisite for forms of Involuntary manslaughter such as Gross Negligence Manslaughter (Note Adomako [1994] 3 WLR 288)

Delivering an incisive opinion in the case of Adomako , Lord Mackay of Clashfern LC, with whom the other Law Lords concurred, declared:

‘The ordinary principles of the law of negligence apply to ascertain whether or not the defendant has been in breach of a duty of care towards the victim who has died.

If such breach of duty is established the next question is –whether that breach of duty caused the death of the victim.’

‘If so the jury must go on to consider whether that breach of duty should be characterized as gross negligence and therefore a crime.’

‘This will depend on the seriousness of the breach of duty committed by the defendant in all the circumstances-in which the defendant was placed when it occurred.’

Lord MacKay’s judicial opinion necessitated proof that the breach of duty by the accused pose a risk of death to his or her victim, a risk which the accused need not have subjectively intended nor foreseen.

Constructive Manslaughter in contradistinction falls within the categorization of another species of involuntary manslaughter. Also known as Manslaughter by an unlawful and dangerous act, this offence is constituted by the presence of the following 3 elements:

The defendant must have intentionally performed an unlawful act; The unlawful act was dangerous; And the unlawful act caused death (AG’s Ref no 3 of 1994 (1998))

In common with gross negligence manslaughter, Constructive manslaughter is not premised on any evidence of the carrying out of an  intentional killing;

rather, what must be proven is that D’s criminal act performed in objectively dangerous circumstances was causatively linked to the death of V.

The Uncertainties surrounding the mental element of Murder: The danger of Conflating the mental state for Murder with that of Manslaughter

What appears to be an unproblematic classification of the homicide offences of Murder and Manslaughter based on gradations recognizing differing degrees of  mental culpability, on closer analysis, reveals a murky grey area with the potential for unsafe convictions.

This is in the light of the current law that tells us murder may be committed without direct intention to kill or cause GBH, —

where the defendant knows that either of those consequences are (virtually) certain to occur as a result of their action.

Direct intention ( to kill or cause serious injury) for the law of murder as posited by the Law Commission is inferred from evidence that:

‘a person acts “intentionally” with respect to a result when he or she acts  in order to bring it about or has as her aim or objective the result;

while an indirect or oblique intent is  evinced by a defendant knowing that a result would be virtually certain to occur if he or she were to succeed in his or her purpose of causing some other result. ( Law Commission, ‘Murder, Manslaughter and Infanticide’ 2006) 

The leading decision of the House of Lords in Woollin 1998 affirms that in those rare cases where the simple direction is not enough the jury should be directed that they are not entitled to find the necessary intention for murder, unless they feel sure that—

”death or serious bodily harm was a virtual certainty (barring some unforeseen intervention) as a result of the defendant’s actions and that the defendant appreciated that such was the case.” ( per Lord Steyn)

Interestingly, Lord Steyn’s model direction reveals that unlike the direct intent to kill or cause serious injury, evidence of an oblique intent to do so is found on the degree of foresight possessed by the accused of such a result

Prof. William Wilson clarifies that ‘although it may sometimes be necessary for juries to be given guidance on how foresight may relate to proof of intention, this should be exceptional.’

‘Otherwise there is a danger that the jury will be confused and assume, wrongly, either that foresight of risk constitutes intention or that direct intention requires proof of foresight in addition to purpose ( Wilson 2017).

The analytical point raised here by Wilson is that a person’s direct intention may be determined without reference to his likelihood of success and his foresight of it.

Following this analysis,  the relevant question to be asked in inferring whether the accused acted intentionally in killing the victim is not whether D foresaw death as a virtual certainty, —

but whether D acted with the purpose of bringing about the resulting death of the victim.

As Wilson argues:

If A’s reason for firing a gun at B is to kill B, he intends to kill B, even though he is an appalling marksman and realistically assesses his chances of success as only one in a hundred.’ (Wilson 2017) 

The problem that may prove intellectually vexing for a Court of law, however, lies in determining whether D possessed the requisite mens rea for murder —

if, for instance, his primary purpose in doing what he did was not to kill the victim, but to achieve some other objective such as the collection of insurance money.

In such cases the Courts may have to deliberate on the question of:

what apart from direct intent may constitute evidence of an oblique intent to kill or cause serious injury.

Wilson takes up this point by arguing:

What a person intends obliquely is, however, only capable of being determined by reference to what he foresees.

If without desiring it, he foresees it to a lesser degree than certainty, say, as highly probable, we have less cause to designate his state of mind as intention to the outcome.

‘Deliberate risk- taking of this character may be culpable – it may be reckless-but it seems too far from intention’s core meaning to count as intention.’ (Wilson 2017)

To some academics and jurists nothing less than a direct intent to kill or cause serious injury, objectively inferred from evidence that the defendant acted with such a purpose or objective would have to be adduced by the Prosecution–

before a murder conviction could be sustained ( Note Jeremy Horder’s arguments on this point in Ashworth’s Principals of Criminal law, 2016, p.195)

And yet, the Law Commission points out:

”For many legal commentators, this ordinary meaning [of intention]  is too narrow for the purposes of criminal responsibility.

It fails to implicate the defendant in respect of a result he or she foresees as a virtual certainty but does not particularly want, for example, where the defendant is acting for another purpose.’( Law Commission Consultation Paper’, 2005. )

The Law Commission elucidates further:

‘The classic example of this is the person who places a bomb on a plane for the purpose of making an insurance claim in respect of property but who foresees as a virtual certainty the death or serious injury of those who are on the plane when the bomb explodes.”

”It is in order to capture the state of mind of such a defendant within the concept of “intention” that the law has expanded its meaning so that it can encompass that degree of foresight. This extension of the meaning of “intention” is known as oblique or indirect intention.'(  Law Commission Consultation Paper’, 2005. )

Jeremy Horder, however, argues that:

‘it would surely be better to adopt a tighter definition of intention, excluding the permissive words ‘ may be found’ in the Law Commission’s recommended definition, and to place greater emphasis on appropriate defences.’ ( Horder in Ashworth’s Principles, 2016, p. 195).

It is submitted that a dilution of the conceptual idea underlying intention may result in uncertainty in ensuring that  ‘important moral distinctions are marked appropriately’ ( Horder, 2016, p.195)–

the moral distinction between intentional killings  and recklessness killings;

Herein we see an ideological tension between the views of orthodox subjectivists such as John Smith and Brian Hogan,  and the moral judgment approaches inherent in the works of Antony Duff, John Gardener and Jeremy Horder. ( Herring 2015, p. 54)

As Jonathan Herring explains, for the orthodox  subjectivists it is a question of fact as to ‘what was going on in the defendant’s mind’ with the focus being on the ‘psychological state of affairs’;

whereas to those who advocate the moral view of the concept of intention , the defendant’s acts of ‘objective wrong doing’  as well as his subjective psychological belief is essential in determining his mental culpability . ( Herring 2015, pp. 54-55) 

The implications for a such a conceptual tension underlying the nature of intention as a mental state is evinced in  the Model direction posited by Lord Steyn in Woollin [1999] AC 82 House of Lords;

And yet, the idea that by foreseeing the consequence of death or serious injury as being virtually certain in occurring the jury would be entitled to find evidence that D intended such a consequence even though it may not have been his primary objective remains fraught with uncertainties.

It is unclear in every instance that a person foresees a consequence of death or serious injury as being virtually certain in occurring he possesses the culpable state of mind of one who deliberately acts to bring about such a consequence.

Such a subjective awareness and perhaps a momentary awareness  of serious injury as being virtually certain in resulting says little if anything about whether D aimed at or desired the side effect of his actions for its is own sake.

in fact serious injury or death may not even have featured in what the Defendant had  aimed at or set out to achieve ……

As Jeremy Horder points out:

the term intent ….is not one that necessarily incorporates elements of moral evaluation, unlike the other mens rea term ‘reckless‘ ( Horder 2016, p.195).

For instance, a doctor whose primary purpose was to kill his victim – to end the pain of a terminally ill patient of his – may have been motivated by compassion to do so, yet would have intended to kill.

Additionally, the lack of moral equivalence between the moral judgement approaches and the orthodox subjectivists perspectives of what constitutes intention in Criminal law is highlighted by Michael Moore who states:

…aiming at evil on a given occasion makes one more culpable …this differential culpability between intent and foresight has to do with notions of authorship or agency” .

”we are the author of evil when we aim to achieve it in a way we are not if we merely anticipate that evil coming about as a result of our actions.’ ( Moore, Placing Blame, p. 409, quoted in Herring p.52)

This authorship attributed to a free agent who deliberately acts within his power to bring about death or serious injury of another arguably resonates with our intuitive sense of morality in designating a person’s state of mind as culpable and deserving of the label- murderer.

Cases such as Matthews and Alleyne [2003]CA remind us, however,  that the Woollin direction is not framed as a piece of substantive law binding the jury to convict D of murder if the test is satisfied, —

but acts as a guide for  jurors to consider all other evidence before deciding to convict or acquit. 

Nevertheless, the potentiality for jurors erring by conflating the mental state for murder with manslaughter remains. 

It is  imperative therefore that jurors understand the difference between—

foreseeing a consequence as highly probable ( Hyam 1975 HL ) and –

foreseeing it as practically (virtually) certain. (Nedrick 1986 CA; Woollin 1998 HL)

since ‘this arguably creates a grey area, policed only by the jury between murder and manslaughter. because manslaughter (not murder) is committed where the cause of death is the defendant’s extreme recklessness.’ (Wilson 2017) 

The distinction between deciding to kill and deciding to endanger life 

The House of Lords in Hyam 1975 held that a jealous lover who poured petrol through a letterbox, knowing that her lover’s wife and children were inside the house, intended to kill them, whatever else she may have meant to achieve, if she foresee this as likely. (Wilson 2017) 

Lord Diplock opined: 

no distinction is to be drawn …between the state of mind of one who does an act because he desires it to produce a particular evil consequence and –

the state of mind of one who does the act knowing fully well that it is likely to produce that consequence although it may not be the object he was seeking to achieve by doing the act.

What is common to both these states of mind is willingness to produce the particular consequence and this, in my view is …intent” .

Prof Wilson argues that Lord Diplock was right to say that ‘willingness’ (or choice) to produce a particular evil consequence is central to a cogent notion of intention.

Wilson argues, however, ‘it is also central to a cogent notion of recklessness –and this must render the broad definition inadequate if a distinct line is to be maintained between crimes of intention such as murder and crimes of recklessness such as manslaughter.’ ( Wilson 2017) 

In other words a clear moral difference exists between deciding to kill someone and deciding to endanger their life ( Wilson) with the latter being a more accurate description of a reckless state of mind. 

Wilson argues however:

”In one situation only is it plausible to treat deliberate risk- taking as a form of intention, namely where the analytical difference between deciding to kill someone and deciding to endanger their life breaks down –

( ie doing more than foreseeing the risk; acting for the purpose of creating the risk) . ( Wilson 2017) 

Such a legal analysis was evinced in Lord Hailsham’s dicta in Hyam when he stated that Mrs Hyam killed intentionally not because she foresaw death as likely or highly probable but because she deliberately exposed the victim ‘to a serious risk of death …”

Consider the following hypothetical scenario presented by Prof. Jonathan Herring

‘A terrorist plants a bomb in a city centre, but gives warning to the police about the bomb. The police send in a bomb disposal expert, who is killed when the bomb goes off while she is trying to dispose of the bomb.’ ( Herring 2015) 

Herring asserts that:

‘Under the current law it is quite probable that the terrorist would not be guilty of murder. The terrorist could claim that it was not his purpose to kill or to cause grievous bodily harm. That was why he gave his warning. He wanted to gain publicity for his cause and create disturbance.

Although the terrorist might foresee that something might go wrong and someone would be hurt or killed , thus was not foreseen as virtually certain and hence under the Woollin test it would not be regarded as permitting the jury to find intention.” (Herring 2015)

Dr Antje Pedain, however, counters such an analysis by asserting that most people would find it unacceptable for such  terrorist to be found not guilty of murder and the current law is inadequate.

Pedain argues that the terrorist should be guilty of murder because he intended to create a risk. (Herring 2015)

“Placing a live bomb in a public place was a necessary means to achieving his objective , though having the bomb explode was not ( and may have been viewed by him as counter productive).

In other words, the creation of the risk was for him , a necessary means to an end. The risk itself was important, in fact crucial , for the achievement of his objective , he could not have done without the risk ( because otherwise he would have done so)….’

‘Having an intention to expose someone to a risk is different from realizing that someone will or might be exposed to a risk. It expresses something more than that – and correctly so in my opinion, when it comes to drawing the line between intention and subjective recklessness- the particular attitude of the defendant towards the risk whose existence he has realized.” ( Pedain quoted in Herring 2015)

We continue to await a clarification by the UK Supreme Court on the question of whether a deliberate creation of a risk of death constitutes an intention to kill……

Patrick J.


Ashworth’s Principles of Criminal Law, Jeremy Horder, 8th Edition, Oxford, 2016.

Criminal Law, William Wilson, 6th Edition, Pearson Education.

‘A NEW HOMICIDE ACT FOR ENGLAND AND WALES? A Consultation Paper’, 28 November 2005.


Jonathan Herring, Great Debates in Criminal law, 3rd Ed. , Palgrave, London, 2015.

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