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Home » Legal Resources » Legal Guidance » H to K » Homicide Murder and Manslaughter

Homicide: Murder and Manslaughter

Updated 2 February 2010

The Law

Definition of Homicide

1. Murder and manslaughter are two of the offences that constitute homicide.

Manslaughter can be committed in one of three ways:

(1) killing with the intent for murder but where a partial defence applies, namely provocation, diminished responsibility or killing pursuant to a suicide pact.

(2) conduct that was grossly negligent given the risk of death, and did kill, is manslaughter ("gross negligence manslaughter"); and

(3) conduct, taking the form of an unlawful act involving a danger of some harm, that resulted in death, is manslaughter ("unlawful and dangerous act manslaughter").

2. The term 'involuntary manslaughter' is commonly used to describe a manslaughter falling within (2) and (3) while (1) is referred to as 'voluntary manslaughter'.

3. There are of course other specific homicide offences, for example, infanticide, and causing death by dangerous driving. For dangerous driving see Road Traffic Offences, Guidance on Prosecuting Cases of Bad Driving, elsewhere in the guidance. For Corporate Manslaughter see elsewhere in the guidance.

Murder

4. Subject to three exceptions (see voluntary manslaughter below) the crime of murder is committed, where a person:

  • of sound mind and discretion (i.e. sane):
  • unlawfully kills (i.e. not self-defence or other justified killing)
  • any reasonable creature (human being)
  • in being (born alive and breathing through its own lungs - Rance v Mid-Downs Health Authority (1991) 1 All ER 801 and AG Ref No 3 of 1994 (1997) 3 All ER 936
  • under the Queen's Peace
  • with intent to kill or cause grievous bodily harm (GBH).

5. Death no longer needs to follow within a year and a day - Law Reform (Year & a Day Rule) Act, 1996 where the act or omission occurred after 7/6/1996.  Note however that the Attorney Generals consent must be obtained before initiating proceedings, if:

(i) the injury alleged to have caused the death was sustained more than three years before the death occurred; or

(ii) the accused has previously been convicted of an offence committed in circumstances alleged to be connected to the death. Please refer to Consents to Prosecute, elsewhere in the legal guidance

6. As these offences are highly sensitive, and to ensure consistency of approach, all cases in which a homicide prosecution is being considered where either death occurs more than 3 years after the original injury was sustained or after a person has previously been convicted of an offence committed in circumstances connected with the death require the approval of the Director of Public Prosecutions' Principal Legal Advisor prior to the obtaining of the Attorney Generals consent. Approval should be sought through Chief Crown Prosecutors/ Heads of HQ Casework Divisions.

7. A British subject can be indicted for murder or manslaughter in England and Wales even when he commits the offence outside the jurisdiction.  The nationality of the victim is immaterial: section 9 Offences against the Person Act 1861.

8. Murder cannot be committed by a company or other corporation. (However see Corporate Manslaughter elsewhere in the guidance).

Intent

9. For the principal defendant, (see joint enterprise below) the intent for murder is the intention to kill or cause grievous bodily harm (GBH), nothing less. Foresight is no more than evidence from which the jury may draw the inference of intent - c.f. R v Woollin [1999] 1 Cr App R 8 (HOL).

Attempted Murder

10. In contrast to the offence of murder, attempted murder requires the existence of an intention to kill, not merely to cause grievous bodily harm: R v Grimwood (1962) 3 All ER 285. The requisite intention to kill can be inferred by the circumstances: R v Walker & Hayles (1990) 90 Cr App R 226.

Joint Enterprise

11. The principle set out in R v Lane and Lane (1986) 82 Cr App R 5 and restated in R v Aston and Mason (1992) 94 Cr App R 180 is that where two people are jointly indicted for the commission of a crime and the evidence does not point to one rather than the other, and there is no evidence that they were acting in concert, the jury ought to acquit both. This equally applies to homicide offences. However see Familial Deaths below for offences involving members of the same household.

Causation

12. The prosecution must always show a causal link between the act/omission and the death.

13. The act or omission must be a substantial cause of death, but it need not be the sole or main cause of death. It must have 'more than minimally negligibly or trivially contributed to the death'. - Lord Woolf MR in R v HM Coroner for Inner London ex p Douglas-Williams (1998) 1 All ER 344.

14. It does not matter that the act/omission by the defendant merely "hastened" the victim's death: R v Dyson (1908) 1 Cr App R 13.

15. However, where it is alleged that an omission was a substantial cause of death, causation is particularly difficult. It is necessary to prove to the criminal standard that but for the omission the deceased would not have died.

16. To break the "chain of causation" an intervening act must be such that it becomes the sole cause of the victim's death so as to relieve the defendant of liability. (Consider R v Kennedy below in cases where death results from the unlawful supply of drugs.)

Examples of intervening acts are:

  • Third party interventions: such an act will not break the chain unless it was a free, deliberate, informed, voluntary act, which was not reasonably foreseeable by a reasonable person: R v Pagett (1983) 76 Cr App R 279
  • Acts of God or nature can break the chain if entirely unforeseen and unconnected with the defendant's act.
  • An act of the victim will break the chain if not within the range of response which might be anticipated from a victim in his situation: R v Roberts (1972) 56 Cr App R 95 and R v Williams & Davis 1992 CLR 198 N.B. Reeves v Metropolitan Police Commissioner (HOL) 2000 1 AC 560 where it was accepted that if the police were aware that the prisoner was a known suicide risk then a special duty of care existed and that Novus actus interveniens did not apply where he then went on to commit suicide.
  • Death resulting from any normal medical treatment employed to deal with a criminal injury must be regarded as caused by the criminal injury. It is only in the most extraordinary case that treatment designed to repair the harm done by the original attack could be regarded as the cause of the victim's death to the exclusion of the accused's act: R v Cheshire (1991) 3 All ER 670.

17. The defendant must take his victim as he finds him under the 'egg-shell skull' rule: R v LeBrun (1991) 4 All ER 673.

Partial Defences to Murder

18. Partial defences, are different to complete defences, such as self-defence, as they bear all the ingredients of murder but if successfully argued, reduce the offence to an act of "voluntary manslaughter" not murder.

19. There are three partial defences to murder: provocation, diminished responsibility and killing in pursuance of a suicide pact.

20. In addition there is a so called 'concealed' partial defence, created by legislation in the act of infanticide (see below)

NB DURESS IS NOT A DEFENCE TO A CHARGE OF MURDER OR ATTEMPTED MURDER

Voluntary Manslaughter

Diminished Responsibility

21. Diminished responsibility was introduced into the 1957 Homicide Act.

22. Section 2(1) Homicide Act 1957: "Where a person kills or is a party to the killing of another, he shall not be convicted of murder if:

"He was suffering from such abnormality of mind whether arising from a condition of arrested or retarded development of mind or any inherent causes or induced by disease or injury as substantially impaired his mental responsibility for his acts and omissions in doing or being a party to the killings" See R v Byrne (1960) 44 Cr App R 246.

23. Impairment must be substantial, there must be evidence of this and it must be raised by defence c.f. R v Campbell [1987] 84 Cr App R 255, R v Kooken [1982] 74 Cr App R 30.

24. It is for the defence to prove that the person is, by virtue of this section, not liable to be convicted of murder. The evidential burden is on the defence on the balance of probabilities i.e. the civil standard (in contrast to Provocation - see below).

25. Abnormality of mind means a state of mind so different from that of ordinary human beings that the reasonable person would term it abnormal. It covers the ability to exercise willpower or to control physical acts in accordance with rational judgement. It is a question for a jury. They are not bound to accept medical evidence: R v Sanders [1991] Crim LR 781.

26. If diminished responsibility is not raised at trial, it is unlikely that the Court of Appeal will allow evidence that was available then to be called at appeal. It will not therefore substitute manslaughter for murder.

27. However, there are conflicting authorities. In R v Campbell [1987] 84 Cr App R 255, on a subsequent Home Secretary's reference, the Court of Appeal accepted medical evidence and ordered a retrial, but in R v Tony Martin [2002] 1 Cr App R 27 and R v Neaven em 955 Crim EWCA, the Court of Appeal allowed medical evidence to be adduced at the appeal, even though diminished responsibility was not raised at trial.

28. The effect of alcohol consumed by the defendant cannot be ignored entirely. Section 2(1) does not require the abnormality of mind to be the sole cause of the killing, even if he would not have killed but for the additional impact of the alcohol, the section still provides a defence - R v Dietschmann (2003) 1 All ER 897 (disapproving R v Egan (1992) 4 All ER 470 and R v Atkinson 1985 CLR 314).

29. The effects of alcohol do not amount to an abnormality of mind: R v Fenton (1975) 61 Cr App R 261. R v Egan (1992) 4 All ER 470, R v Atkinson 1985 CLR 314. However, for cases involving alcoholics see R v Tandy (1989) 1 WLR 350 and R v Inseal 1992 CLR 35.

30. As murder is a crime of specific intent, if the defendant cannot show diminished responsibility from brain damage caused by alcohol, if he was so drunk or drugged at the time of the killing as to be unable to form the intent to kill , or cause grievous bodily harm, he will be acquitted of murder. However he is still liable to be convicted of unlawful act manslaughter.(see below).

31. There is a link between diminished responsibility and provocation: R v Ahluwalia (1992) 4 All ER 889.

Top of page

Provocation

32. The basic rule is if a defendant kills, having been provoked to lose his or her self-control, in circumstances in which an ordinary person might also have done so and killed, it is manslaughter not murder.

33. The defendant is entitled to have evidence that he or she was provoked to lose self-control put before the jury no matter how unlikely it is that the defence will succeed. Therefore, if the defendant claims that he was provoked to lose his self-control by the victim's failure to make a cup of tea the way he liked it, the defence has to be put to the jury even though it has no merit: See R v Ibrams & Gregory (1981) 74 Cr App R 154. It is arguable that even where the provocation was self-induced, the partial defence will still be available -see by analogy R v Rashford (2005) EWCA Crim 3377.

34. Interestingly, if instead of being provoked, the defendant kills out of a fearful overreaction to a threat of future serious violence, this would not offer any defence to murder.

35. Section 3 Homicide Act 1957:

"Where on charge of murder there is evidence on which the Jury can find the person charged was provoked (whether by things done or by things said or by both together) to lose his self control The question whether the provocation was enough to make a reasonable man do as he did shall be left to be determined by the Jury, and in determining the question the Jury shall take into account everything both done and said according to the effect, which in their opinion; it would have on a reasonable man".

36. The definition of provocation was given by Devlin J in R v Duffy (1949) 1 All ER 932 as approved in R v Whitfield (1976) 63 Cr App R 39:

"Provocation is some act or series of acts done or words spoken which would cause in any reasonable person and actually causes in the accused a sudden and temporary loss of self control rendering the accused so subject to passion as to make him for the moment not master of his mind".

37. Following on from the common law section 3 foresaw that provocation had two elements. The first is subjective or "factual" and requires that the defendant was provoked into losing his self-control. To establish this all evidence which is probative is admissible. This includes evidence of any mental or other abnormality making it more or less likely that the defendant lost his self-control.

38. The second element is objective or evaluative and raises, "the question whether the provocation was enough to make a reasonable man do as he did ... [taking] into account everything both done and said according to the effect ... it would have on a reasonable man". Broken down, this objective ingredient has two elements.

39. Thus the first element calls for an assessment of the gravity of the provocation. The second element calls for application of an external standard of self-control: "whether the provocation was enough to make a reasonable man do as he did".

40. The decision of the Privy Council in R v Holley (2005) 3 All E.R. 371 concluded (6-3) that in determining the second element, the personal characteristics of the defendant (other than age and gender) are not relevant in determining if the reasonable person would have acted as the defendant did even under the degree of provocation felt by the defendant. Holley has now been followed by the Court of Appeal in R v Faqir Mohammed (2005) EWCA Crim 1880 - and R v James & Karimi (2006) EWCA Crim 14.

41. In R v Camplin [1978] AC 705 717, Lord Diplock gave a much quoted explanation of the meaning of the phrase "reasonable man" for the purposes of the law of provocation:

"It means an ordinary person of either sex, not exceptionally excitable or pugnacious, but possessed of such powers of self-control as everyone is entitled to expect that his fellow citizens will exercise in society as it is today."

42. The things said or done may be by the deceased or anyone else: R v Davis (1974) 60 Cr App R 253.

43. There must be a sudden and temporary loss of control and the loss of control must be associated with the act which caused death: R v Ibrams & Gregory (1981) 74 Cr App R 154.

44. Once there is evidence, whether from evidence called for the Crown or for the defence, sufficient to be left to the jury on the issue of provocation, the onus remains throughout upon the Crown to prove absence of provocation beyond a reasonable doubt (in contrast to Diminished Responsibility - see above).

45. The judge should direct the jury on provocation even when it was not canvassed and was contrary to defence contentions: R v Cambridge (1994) 2 All ER 760 and this is the case even where the defendant denies any loss of self-control or being provoked: R v Stewart(1995) 4 All ER 999.

46. It is for the judge to decide if there is some evidence but the judge is not required to put strained and implausible inferences to create provocation: R v Walch 1993 CLR 714 (however, note also R v Van Dongen (2005) EWCA Crim 1904).

Killing In Pursuance Of A Suicide Pact

47. Section 4 of the Homicide Act 1957 reduces an offence of murder to one of manslaughter where the survivor of a joint suicide pact, who took part in the killing of another person in the pact.

Assisting or Encouraging Suicide

See the Ministry of Justice circular 2010/03 Encouraging or assisting suicide: implementation of Section 59 of the Coroners and Justice Act 2009.

48. The offence of aiding and abetting suicide contrary to section 2(1) Suicide Act 1961 has been amended by section 59 of the Coroners and Justice Act 2009 with effect from 1 February 2010.

49. This section now provides that:

"(1) A person (D) commits an offence if:

(a) D does an act capable of encouraging or assisting the suicide or attempted suicide of another person, and

(b) D's act was intended to encourage or assist suicide or an attempt at suicide.

(1A) The person referred to in subsection (1)(a) need not be a specific person (or class of persons) known to, or identified by, D.

(1B) D may commit an offence under this section whether or not a suicide, or an attempt at suicide, occurs.

(1C) An offence under this section is triable on indictment and a person convicted of such an offence is liable to imprisonment for a term not exceeding 14 years."

50. Section 61 and Schedule 12 of the Coroners and Justice Act 2009 make special provision for the operation of section 2 of the Suicide Act 1961 in relation to information society services.

FULL UPDATED GUIDANCE WILL FOLLOW THE PUBLICATION OF THE FINAL POLICY ON PROSECUTING CASES OF ENCOURAGING AND ASSISTING SUICIDE.

51. This is an indictable only offence, which can only be prosecuted by or with the consent of the DPP.

52. Please note that CPS Areas must refer Assisted Suicide cases to the Special Crime Division. See Referral of Cases to CPS Headquarters (Central Casework Divisions, the Principal Legal Advisor, the National Community Liaison Director, Private Office, Policy Directorate and Press Office), the Chief Crown Prosecutors (Legal Directors in CPS London) or Group Complex Casework Units elsewhere in the Legal Guidance.

Involuntary Manslaughter

53. Involuntary manslaughter, by contrast to voluntary manslaughter, where a person kills but without the intent to kill or cause GBH. Apart from the absence of the requisite intent, all other elements of the offence are the same as for murder.

54. There are two types of involuntary manslaughter, namely:

  • that caused by the defendant's gross negligence; and
  • that caused by his unlawful or dangerous act.

Gross Negligence Manslaughter

55. This is where the death is a result of a grossly negligent (though otherwise lawful) act or omission on the part of the defendant. In R v Bateman (1925) 19 Cr App R 8 the judge described the circumstances in which mere civil liability could become criminal liability in these terms:

"...the facts must be such that, in the opinion of the jury, the negligence of the accused went beyond a mere matter of compensation between subjects and showed such disregard for the life and safety of others, as to amount to a crime against the State and conduct deserving punishment."

56. Some of the words used in Bateman to describe the nature of "grossness" demonstrate how difficult it is to identify: culpable; criminal; gross; wicked; clear and complete.

57. In R v Adomako (1994) 3 All ER 79 the law was clarified by the House of Lords, who affirmed the Court of Appeal's decision, but amended the principles.

58. The case introduced a 4 stage test of gross negligence manslaughter, known as the 'Adomako Test' which involves:

a) The existence of a duty of care to the deceased;

b) a breach of that duty of care which;

c) causes (or significantly contributes) to the death of the victim; and

d) the breach should be characterised as gross negligence, and therefore a crime.

59. There is no manslaughter by "Lawrence Recklessness", overruling R v Seymour (1983) 2 AC 493.

The Duty of Care

60. There is no "general" duty of care owed by one citizen to another (No 'good Samaritan rule')

61. A duty of care will arise from an ACT of a person where the requirements of foreseeability, proximity, fairness, justice and reasonableness establish such a duty (R v Donohue v Stevenson (1932) AC 582)

62. In Caparo Industries PLC v Dickman (1990) 2 AC 605 the House of Lords set out a 3 stage test if a duty existed:

a. Was the damage foreseeable;

b. Was the defendant in an appropriate position of proximity and;

c. It is fair and just to impose liability on the claimant

63. The duty can exist even where the deceased and the defendant were engaged in an unlawful activity together (R v Wacker (2003) 1 Cr App R 329; R v Willoughby (2004) ECWA Crim 3365.

64. The duty can arise from a contract of employment (R v Pittwood (1902) 19 TLR 37)

65. In addition there is the case of R (Rowley) v DPP (2003) EWHC Admin 693 where the Administrative Court referred to a fifth test, that 'criminal' involved an element of 'badness' - but note that the Adomako test is objective and the Crown need not prove the defendant's state of mind. The risk must be a serious and obvious risk of death, not merely serious injury - R v Misra & Srivastava [2005] 1 Cr App R 328.

The Breach of the Duty of Care

66. The ordinary law of negligence applies to these case, in that those with an established duty of care, must act as a "reasonable person would do in their position". If they fail to do so they will have breached that duty. This is an objective test and will be based upon the defendant's position at the time of the breach.

67. Therefore, if the defendant has acted within the range of what was generally accepted as being the standard practice (even if it is at the lower end) it will be difficult to describe such behaviour as falling far below the standard of a reasonable person in his position.

68. An unqualified person is not to be judged at a lower standard than a qualified person. Therefore the lack of skill will not be a defence if the conduct is deemed negligent. If however, the defendant has particular skills and knowledge of a danger that the reasonable person would not have, his actions should be judged in the light of those skills or knowledge. This test is an objective test.

69. It does not matter that the defendant did not appreciate the risk only that the risk would have been obvious to a reasonable person in the defendant's position. (R v DPP ex Parte Jones 2000 CLR 858 and AG ref No:2 of 1999 3 All ER 182)

Causation

70. In R v HM Coroner for Inner London, ex parte Douglas-Williams (1999) 1 All ER 344 Lord Woolf put forward the following test:

"For gross negligence manslaughter so far as the facts we are considering are concerned there must be:

(i) negligence consisting of an act or failure to act;

(ii) that negligence must have caused the death in the sense that it more than minimally, negligibly or trivially contributed to the death; and

(iii) the degree of negligence has to be such that it can be characterised as gross in the sense that it was of an order that merits criminal sanctions rather than a duty merely to compensate the victim.

"It is an essential ingredient that the unlawful or negligent act must have caused the death at least in the manner described. If there is a situation where, on examination of the evidence, it cannot be said that the death in question was caused by an act which was unlawful or negligent as I have described, then a critical link in the chain of causation is not established. That being so, a verdict of unlawful killing would not be appropriate and should not be left to the jury."

The Grossness of the Breach

71. The risk (which has to be the foreseeable risk of death) must be serious and it must have been one which would have been obvious to a reasonable person.

72. It is for a jury to decide whether the defendant's conduct was so bad, in all the circumstances, as to amount to a criminal act or omission. In R v Misra & Srivastava [2005] 1 Cr App R 328, the court agreed with the direction by the judge that the term 'reprehensible' would be apt to describe the nature of the conduct.

"Medical Manslaughter"

73. Medical manslaughter is legally no different from Gross Negligence manslaughter. The term refers to medically qualified individuals who are performing acts within the terms of their duty of care, when the act or omission occurs.

74. Where a medical individual is appointed to take charge of a person they then take on a duty of care towards them. Simply being a doctor or nurse in a hospital will not necessarily mean there is a duty of care to a specific patient (see s7 HSWA in the legal guidance Corporate manslaughter)

Please refer to HSE Work Related Deaths protocol.

Unlawful Act Manslaughter

75. This is where the killing is the result of:

  • the defendant's unlawful act (not omission);
  • where the unlawful act is one which all sober and reasonable people would realise would subject the victim to the risk of some physical harm resulting there from, albeit not serious harm - R v Williams & Davis (1992) 2 All ER 183;
  • whether or not the defendant realised this.

76. The knowledge attributed to the sober and reasonable person is that which such a person would acquire as an observer of the whole course of the defendant's conduct throughout the unlawful act: R v Watson (1989) 2 All ER 865, R v Dawson (1985) 81 Cr App R 150, R v Carey & others (2006) EWCA Crim 17.

77. In manslaughter arising from an unlawful and dangerous act, the accused's state of mind is relevant only to establish that the act was committed intentionally and that it was an unlawful act.

78. Once these points are established the question whether the act was dangerous is to be judged not by the appellant's appreciation but that of the sober and reasonable man and it is impossible to impute the mistaken belief of the defendant that what he was doing was not dangerous: R v Ball 1989 CLR 730.

79.  Points to note:

  • the defendant's act must be unlawful;
  • the act need not be directed against a person (e.g. arson) - see R v Willoughby (2005) 1 WLR 1880; and
  • it must be an act, not an omission.

Cases where Death Results from the Unlawful Supply of Drugs

80. No "unlawful act" for the purpose of unlawful act manslaughter occurs, where a person only supplies drugs or materials to another, who then in turn administers the drug to himself and dies. This is the case even where a person assists another to take the drug by performing preparatory acts, such as applying a tourniquet or preparing a syringe for injection.

81. The House of Lords considering the point, stated that the criminal law generally assumed the existence of free will and, subject to certain exceptions, informed adults of sound mind were treated as autonomous beings able to make their own decisions on how to act: R v Kennedy (Simon) (2007) 3 W.L.R. 612.

"Although it was possible to imagine factual scenarios in which two people could properly be regarded as acting together to administer an injection, nothing of the kind had occurred here. K supplied the drug to B, who then had a choice, knowing the facts, whether to inject himself or not. The heroin had been self-administered, not jointly administered"

Infanticide

82. Section 1 Infanticide Act 1938: "Where a woman:

  • by any wilful act or omission;
  • causes death of her child being a child under the age of 12 months;
  • but at the time of the act or omission the balance of her mind was disturbed by reason of her not having fully recovered from the effect of giving birth to the child;
  • or by reason of the effect of lactation consequent upon the birth of the child then;
  • notwithstanding that the circumstances were such that, but for this Act, the offence would have amounted to murder (See R v Gore below);
  • she shall be guilty of an offence of infanticide; and
  • may for such an offence be dealt with and punished as if she had been guilty of the offence of manslaughter of the child."

83. The child that is killed must be the child to whom the birth etc. refers, and the child must be under 12 months old. Infanticide can be an alternative verdict or charged in its own right. The death can be by either act or omission.

84. The case of R v Gore [2007] EWCA Crim 2789 has established that there is no requirement that all the ingredients of murder have to be proved before a defendant could be convicted of infanticide. The case has confirmed that the intention of parliament was to create a new offence of infanticide which covered situations much wider than offences that would otherwise be murder. Consequently, the mens rea for infanticide does not require any intention to kill or cause serious bodily harm. Therefore cases of manslaughter (see above) would fall within the elements of the offence.

85. In every case where the mother is alleged to have killed her own child who is less than 12 months old, early efforts should be made to obtain medical evidence establishing whether or not infanticide is appropriate and, if so, a charge of infanticide can be preferred pre-committal.

86. There is a close link between this offence with both voluntary manslaughter and diminished responsibility. However, unlike diminished responsibility, the burden of disproving is on prosecution. Although for an Infanticide offence, the child killed must be the one from whose birth/lactation the defendant is suffering; diminished responsibility might still be argued if another child of the family has been killed.

87. N.B. also the offence of Child Destruction: s.1 Infant Life (Preservation) Act 1929, which prohibits the killing of any child capable of being born alive.

Familial Deaths

88. Section 5 of the Domestic Violence, Crime and Victims Act 2004 ('DVCV Act') creates an offence of causing or allowing the death of a child under the age of 16 or of a vulnerable adult. This stand-alone offence imposes a duty upon members of a household to take reasonable steps to protect children or vulnerable adults within that household from the foreseeable risk of serious physical harm from other household members. It is an offence triable only on indictment and carries a maximum sentence of 14 years imprisonment or a fine, or both [s. 5(7)].

89. An offence under section 5 is an offence of homicide for the purposes of venue in the Youth Court s. 6(5)].

90. The new offence is made out where evidence exists to establish the following elements:

  • a child or vulnerable adult ("V") has died;
  • the death was the result of an unlawful act, course of conduct or omission of a person ("D") who was member of the same household as V and who had frequent contact with V;
  • there existed at the time of death a significant risk of serious physical harm being caused to V by the unlawful act of any member of that household and either:

    (a) D was the person whose unlawful act caused V's death; or

    (b) D was, or ought to have been, aware of that risk and failed to take such steps as he or she could reasonably have been expected to take to protect V from that risk of serious physical harm; and

    (c) The death occurred in circumstances of the kind that D foresaw or ought to have foreseen.

91. (Note that 'significant' does not mean 'more than minimal' as it would for manslaughter but carries its ordinary meaning - R v Mujuru (2007) EWCA Crim 1249

92. Significantly, the prosecution does not have to prove which of the two possible alternatives, (a) or (b) above, applies [s.5(2)]. In other words, D is equally liable to conviction whether he or she was the perpetrator of the act that actually caused V's death or simply failed to protect V from a foreseeable risk of serious physical harm from another member of the household who had frequent contact with V. It will quickly be appreciated how this dual basis for criminal liability remedies one of the main perceived difficulties with the law relating to other possible charges such as murder or manslaughter.

93. In every case the prosecution must prove that V's death occurred in circumstances of the kind that D foresaw or ought to have foreseen [s.5(1)(d)(iii)]. This requirement protects, from criminal liability, those whose dependents die from unlawful acts that had nothing to do with the foreseeable risk of harm within the household, e.g. where V is at risk of serious harm from an abusive parent but is subsequently killed by a friend of the family who had had until then little contact with the household.

94. Further, subsection 5(6) confirms that in this context 'serious' harm is to be equated with the level of physical harm that amounts to grievous bodily harm under the Offences against the Person Act 1861. The risk that must be foreseen relates to that level of harm and the risk itself must be significant rather than minimal or fanciful.

95. However, it is clear from the wording of section 5 that the test of what could be foreseen is not purely subjective but contains a 'reasonableness' dimension as well. In determining potential liability the proper test to be applied is 'what would have been reasonable for this defendant to have foreseen?' Therefore, a defendant may be fixed with knowledge if the nature of the risk was such that he or she should reasonably have been aware of it even if they claim not to have been.

96. In this context an 'unlawful' act is defined as one which constitutes a criminal offence or would do so were the perpetrator not under the age of criminal responsibility or able to establish an insanity defence [s.5(5)].

Age of Responsibility

97. If D was under the age of 16 at the time of the act which caused V's death he or she cannot be guilty of an offence under section 5 [s.5(3)(a)]. Further, where it is sought to prosecute D on the basis of a failure to take reasonable steps to prevent the risk of serious harm, D is assumed not to have been capable of taking any such step before attaining the age of sixteen [s.5(3)(b)]. However, neither of these exceptions applies to the mother or father of the deceased child who may be prosecuted for a section 5 offence whatever their age. This distinction is justified on the basis that parents bear a special responsibility for the safety of their children.

Meaning of 'Same Household'

98. The phrase, 'member of same household' is defined in section 5(4)(a) of the Act. People who live together in a family arrangement will clearly be members of the same household. Additionally, a person can be a member of a particular household even if he or she does not live there provided that they visit it so often and for such periods of time that it is reasonable to regard them as a member of that household. This is a question to be judged on the particular facts of each specific case. Where V lived in different households at different times, 'the same household as V' refers to the household in which V was living at the time of the act that caused V's death.

99. To establish D's liability under the new offence the prosecution must prove, not only that D was a member of the same household as V, but also that he or she had frequent contact with V. For example, someone who was a frequent visitor but who only came to the house after the victim had gone to bed or was absent might be deemed a member of the same household but would not be included within criminal liability under section 5. Until some case law develops on the point, what amounts to 'frequent' contact will also remain a question of fact and degree in each case.

Definition of "Vulnerable Adult"

100. For the purposes of this offence a vulnerable adult is defined as a person aged 16 or over whose ability to protect themselves from violence, abuse or neglect is significantly impaired through physical or mental disability or illness, old age or otherwise [s. 5(6)]. This is a wider definition than that applied to vulnerable witnesses in the Youth Justice and Criminal Evidence Act 1999. Once more judicial interpretation of the word 'otherwise' will be welcome in order to determine the precise boundaries of the class of people included. Normal rules of statutory interpretation would suggest that other impairments should be of the same nature as mental disability or illness or old age.

Application of Dangerous Offender Provisions

101. An offence under section 5 is a "serious specified offence" for the purposes of the Dangerous Offenders provisions set out in Chapter 5 of the Criminal Justice Act 2003 (DV Act, Sched. 10, para. 65).

Procedural Changes

102. Section 5 creates a substantive offence that can be charged alone and which is clearly designed to remedy situations where it has been impossible in the past to bring charges of murder or manslaughter because of a lack of evidence to prove which of a limited number of suspects caused V's death. Such situations will doubtless continue to occur and the principle in Lane and Lane (referred to above) will continue to have effect.

103. However, the Act also has in contemplation circumstances where the evidence, reviewed according to the normal standards of the Code for Crown Prosecutors , justifies charging one of more of the defendants with either murder or manslaughter in respect of the same death. Where this is done, it is important to ensure that the defendant is also charged with a section 5 offence. Not only does this afford the jury an opportunity of convicting of an alternative count but several significant advantages flow from the fact that a defendant is charged with both offences.

Ruling Out Dismissal of the Case before Arraignment

104. First, following a sending by the magistrates' court the charge of murder or manslaughter cannot be dismissed under the Indictable Only procedure unless the section 5 offence is also dismissed [s.6(3)]. This means that as long as there is a case to answer on the familial homicide offence, the defence will not be able to apply to have the more serious charge dismissed before arraignment under paragraph 2 of Schedule 3 of the Crime and Disorder Act 1998 on the ground that there is not a prima facie case in relation to murder or manslaughter.

Postponing the Decision on whether there is a case to answer

105. A similar restriction also applies during the course of the trial itself. As long as the defendant continues to face a charge under section 5 of the Act the question of whether there is also a case to answer on the charge of murder or manslaughter cannot be determined until the close of all the evidence including the defence evidence (if any defendant elects to give evidence) [s.6(4)].

106. The purpose of the provision is to afford the jury the greatest possible opportunity of hearing the oral evidence of at least one of the defendants during the trial and to weigh that testimony as evidence against the other accused. So, where a defendant is charged in respect of the same death with both familial homicide and either murder or manslaughter, and the prosecution evidence establishes a case to answer on the section 5 offence, the defence cannot make a submission of no case to answer on the murder/manslaughter charge until the close of the defence case.

107. At that stage the court will have heard the evidence of any of the accused who decide to go into the witness box and the decision whether there is case to go to the jury will then be taken in the light of that evidence, not simply the evidence of prosecution witnesses. The potential use of so-called 'cut-throat' defences here is obvious. (See R v Ikram (Abid)[2008] EWCA Crim 586).

Allowing Inferences to be Drawn from Refusal to Testify

108. The other procedural change concerns the drawing of inferences from an accused's failure to give evidence at trial or refusal to answer questions put in cross-examination. If a jury would be entitled under section 35(3) of the Criminal Justice and Public Order Act 1994 to draw inferences from the failure of a person charged with an offence under section 5 to give evidence or to answer questions in court without good cause, then those same inferences may be drawn in relation to any charge of murder or manslaughter arising from the same death which they also face [s. 6 (2) of the DVCV Act]. This is so, even if there would otherwise be no case to answer in relation to the murder/manslaughter offence. In other words, provided the strict requirements of section 35(3) CJPOA are met in relation to the familial homicide offence, they will be deemed to have been met in relation to the linked murder or manslaughter charge too. To that extent the strict procedural requirements set out in R v Cowan [1996] QB 373 have been dis-applied in cases of this kind.

109. Note that this express transference provision relates only to the adverse inference that may be drawn from a refusal to give evidence in court. Other possible inferences, such as that arising from a refusal to answer questions in a police interview, are not included within the section 6 provisions. Where section 6 does apply, however, the court or jury can then take such inferences as appear proper into account in considering whether the accused is guilty of both the familial homicide and the murder/manslaughter charges.

110. A jury cannot, of course, convict the defendant solely on the basis of such an inference (s. 38(3) CJPOA) but the drawing of an inference adverse to the defendant(s) may serve to strengthen the prosecution case to the point where a conviction becomes a realistic prospect. As the Law Commission observed in its report (at paragraph 6.87) an inference from "the eloquent silence" of a person responsible for the child, who is one of a small group of identified persons who must have responsible for the child's death may be the "decisive" element in a decision to convict.

The Application of the Code for Crown Prosecutor Tests to the New Procedural Provisions

111. Nothing in the DVCV Act or elsewhere suspends the operation of the normal evidential stage of the Code tests in respect of cases involving the death of children or vulnerable adults in familial settings. However, prosecutors will be entitled to take these significant procedural changes into account when determining the strength of the evidence on possible charges of murder and manslaughter. While the 'realistic prospect of conviction' test is the only proper test to apply, the Crown Prosecutor is entitled to take into account the realities of what is likely to happen in the course of the criminal proceeding and this includes an assessment of the likely impact of section 6 of the Act.

112. Assuming that there is sufficient evidence in respect of the familial homicide charge, a submission of no case to answer in respect of any related murder or manslaughter charge will be deferred until the close of the defence case. Therefore the defence case, so far as it can be evaluated for the defendant's interview or otherwise, will be a relevant consideration to take into account at the time of the decision to charge. While the Crown Prosecutor may not know precisely what the defence case is going to be, it is not improper to consider what it may be and then to go on to consider how it is likely to affect the prosecution case. As Lord Bingham C.J. observed in R v Director of Public Prosecutions, ex parte Manning and another [2001] QB 330 (at page 344 B):

"In most cases the decision [whether to prosecute ] will turn not on an analysis of the relevant legal principles but on the exercise of an informed judgement of how a case against a particular defendant, if brought, would be likely to fare in the context of a criminal trial before ...a jury. This exercise of judgement involves an assessment of the strength, by the end of the trial, of the evidence against the defendant and of the likely defences."

The Potential Range of the New Offence

113. Potential criminal liability under section 5 of the DVCV Act does not depend upon the existence of any parental or other special relationship with V. Rather, it arises from membership of the same household as, and frequent contact with, a child or vulnerable adult who dies as a result of an unlawful act, course of conduct or omission that can only be attributable to the activities of someone who was also a member of that household and who also had frequent contact with the deceased.

114. Since liability arises from membership of the deceased's household and frequent contact with the deceased, the new offence is wide enough to include anyone within that defined group who ought to have aware of the foreseeable risk and who failed to take all reasonable steps to prevent the harm arising. Thus, it might include siblings aged 16 and over who lived with V and who had witnessed earlier incidents of violence towards V by someone living as part of the household as defined in section 5(4) of the Act. Conversely, a separated parent who did not live with or visit V before V died would not be considered a member of V's household and could not be liable for prosecution under section 5 even if he or she was aware or ought to have been aware that V was at serious risk of physical harm from a household member and did nothing to prevent that harm.

115. Potentially, people who come into the home on a regular basis to care for V may be deemed to be members of the household for the purposes of this offence. They might be liable to be charged if they were aware of a risk of serious harm to V from someone within the same household but did not take reasonable steps to prevent V's death. People who might fall into this category include relatives, regular baby sitters over 16, and those who provide domiciliary care in the household such as child minders and paid carers.

116. In many cases the evidence is likely exclude any possible 'outside candidates' and the range of suspects will be confined to those who are part of the deceased's household. Determining whether there is sufficient evidence to charge should not present any special difficulty in such cases. However where the evidence leaves room for reasonable doubt that the fatal act etc., was done by someone who does not fall within the definition of 'the same household' no possibility of a section 5 charge arises since the death may been caused by someone other than a member of V's household.

What Amounts to Reasonable Steps

117. Where the prosecution case against D is that he or she failed to prevent a foreseen or foreseeable risk, the court will have to be satisfied that there were, indeed, steps that the defendant could have reasonably have taken to protect the child or vulnerable adult from harm. If there are no such steps or none that would have been reasonable for this particular defendant to take, then the section 5 offence cannot be established.

118. What is 'reasonable' will depend upon the circumstances of each particular case but in every case the defendant is entitled to be judged on the basis of what the reasonable and sober person sharing all the personal characteristics of that particular defendant could have been expected to do. This will involve taking into account everything that is known about the defendant's circumstances, intellectual and emotional capabilities and his or her ability to make independent decisions and choices. This, in turn, may involve consideration of the likely impact of violence directed towards the defendant by the other accused on his her ability to act reasonably in protection of the eventual victim.

119. However, the purpose behind the new offence and the rationale for it is to promote greater protection for children and vulnerable adults from harm within their own households. In deciding evidentially what are and what are not reasonable steps prosecutors will have to keep to the forefront of their mind the duty created and how the state expects that duty to be discharged. Some assistance in this regard may be obtained from the case of R v Beard (1987) 85 Cr. App. R. 395, an appeal against a conviction for cruelty through neglect of a child contrary to section 1(1) of the CYPA 1933. Noting from earlier cases the proposition that in law one parent may have a duty to intervene in the ill-treatment of their child by the other, Watkins L.J. said (at p. 399 -400):

"[...] the duty to intervene when it arises involves obligations upon [the parent] to (1) actively endeavour to bring the ill-treatment to an end (2) to call for assistance in that behalf if necessary and to report the matter to a person in authority and (3) to take steps to ensure that the child is no longer exposed to a repetition of ill-treatment by [the other parent]. Which one or more of these obligations arise will of course depend upon the circumstances of the case".

120. In relation to the new offence, too, it will ultimately be a matter for the courts to decide what amounts to reasonable steps. As cases begin to come before the courts, a body of case law will develop which will help prosecutors to make that judgement. In the interim, examples of what could amount to 'reasonable steps' might be thought to include:

  • Contacting social services, local child protection committees or similar.
  • Making sure that the child or vulnerable person is treated promptly and appropriately for any injuries or illnesses that they suffer.
  • Explaining concerns to the family GP or health visitor.
  • Contacting their teacher, head teacher or school nurse.
  • Contacting organisations such as the NSPCC or Childline.
  • Ringing one of the other voluntary agencies that support families, such as Home-Start.
  • For a young person aged over 16, contacting their grandparents, an aunt or uncle, or another responsible adult.
  • Exploring concerns with neighbours or others who may have contact with the person who is at risk.
  • Making sure that alcoholism or drug dependence in other members of the household are acknowledged and appropriately treated.
  • Attending anger management or parenting classes if appropriate, or ensuring other members of the household attend such classes.
  • Physically or verbally intervening to prevent violence. Account would have to be taken of the respective physical capabilities of the parties in determining whether this was a reasonable step.
  • Leaving an abusive partner and moving home with the child or vulnerable person. Again, this might not always be a reasonable expectation depending on the particular circumstances of individual defendants.

121. This list is not intended to be exhaustive and is for illustrative purposes only. Such judgements are never easy to make. As with any case, prosecutors will have to keep the evidence under continuing review. Early decisions to charge may have to be reconsidered in the light of later information including evidence that may be served or disclosed by the defence.

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Shaken Baby Syndrome (SBS) and Sudden Infants Death Syndrome (SIDS)

122. The terms SBS and SIDS are used to refer to cases where the death of infants is attributed to:

  • no obvious external injuries; and
  • the issue revolves around expert evidence as to whether the death was as a result of intentional suffocation or due to some unknown reason.

123. The accepted hypothesis defining "Shaken baby syndrome", (or as it should be more properly called, "non-accidental head injury"), depends on findings of a triad (the "Triad") of intracranial injuries consisting of:

  • retinal haemorrhages;
  • subdural haemorrhages; and
  • brain encephalopathy (disease of the brain affecting function).

124. The mechanism for these injuries is said to be the shaking of the infant, with or without impact on a solid surface, which moves the brain within the skull, damaging the brain and shearing the bridging veins.

125. This triad of injuries is central to the diagnosis of SBS when there are no other signs or symptoms of trauma such as bruises or fractures. In addition the injuries are invariably inflicted by a sole carer in the absence of any witness, and they are followed by an inadequate history, incompatible with the severity of the injuries.

Previous Challenges to SBS

126. The challenge (termed the "unified hypothesis") to the triad hypothesis claimed that other reasons, such as apnoea (cessation of breathing), or raised intracranial pressure, or infection could in fact cause the triad of injuries. Therefore, according to the unified hypothesis, the triad hypothesis was not diagnostic as to how a baby had died.

Case Law on SBS

127. In the case of R v Cannings [2004] EWCA Crim 01 Lord Justice Judge stated:

"In cases like the present, if the outcome of the trial depends exclusively or almost exclusively on a serious disagreement between distinguished and reputable experts, it will often be unwise, and therefore unsafe, to proceed."

128. In R v Harris, Rock, Cherry and Faulder [2005] EWCA Crim 1980, the Court of Appeal concluded that the unified hypothesis could no longer be considered as a credible or alternative cause to the triad hypothesis. In the course of the Harris trial, Dr. Geddes (the creator of the unified hypothesis) agreed that her research was incomplete.

129. The Court felt that the triad of injuries provided strong evidence towards a finding that the injuries were non-accidental but could not alone be conclusive of the cause of death. The accepted triad hypothesis was not considered to be a fact. It remained a hypothesis.

130. The Court indicated that there was no scientific method of correlating the amount of force used with the severity of the injuries caused. However the Court identified four general propositions to assist with the determination of the degree of force required to cause the injuries suffered:

i. the more severe the injury the more probable that they were caused by greater force than mere rough handling;

ii. cases of serious injuries caused by very minor force as may occur in normal or rough handling of an infant, are likely to be rare or even extremely rare;

iii. there will be cases where a small degree of force or a minor fall will cause very severe injuries; and

iv. it is not possible to conclude that age is a factor in deciding whether injuries are caused by strong force or a minimal degree of force or impact.

131. Cases of alleged non-accidental head injury are fact specific and will be determined on their individual facts. All the circumstances, including the clinical picture, must be taken into account. R v Kai-Whitewind [2005] EWCA Crim 1092.

132. This case is important in setting the scope that the defence can make of the Cannings judgment:

"All this suggests that, for the time being due to the current state of medical knowledge], where a full investigation into two or more sudden unexplained infants deaths in the same family is followed by a serious disagreement between reputable experts about the cause of death, and a body of such expert evidence concludes that natural causes, whether explained or unexplained, cannot be excluded as a reasonable (and not a fanciful) possibility, the prosecution of a parent or parents for murder should not be started, or continued, unless there is additional cogent evidence extraneous to the expert evidence which tends to support the conclusion that the infant, or where there is more than one death, one of the infants, was deliberately harmed"

133. The defence in this case sought to argue that the Cannings judgment extended to other sudden infant death cases where there was a conflict of expert opinion.

134. Disallowing the appeal, Lord Justice Judge stated:

"that the Cannings case was only intended to apply to cases that depended on inferences based on coincidence, or the unlikelihood of two or more infant deaths in the same family, or one death where another child had suffered unexplained apparent life-threatening events."

135. The allegation against the Appellant in Kai-Whitewind arose from a single death and could be distinguished from Cannings. Moreover, unlike the case of Cannings, Kai-Whitewind's conviction had not been based entirely on conflicting expert opinion; there was additional cogent evidence. The Court concluded that there was ample evidence before the jury to justify the verdict and the conviction for murder was safe.

136. It was for the jury to evaluate the expert evidence, taking into account the facts found at the post mortem, and bearing in mind that the findings related to an infant whose mother:

  • had spoken about killing him,
  • had difficulties bonding with him,
  • who might have delayed reporting his death; and
  • had elected not to give evidence.

137. In R v Allen [2005] EWCA Crim 1344 the Appellant was convicted of the murder of his baby son following an incident in which it was alleged the child suffered injuries caused by shaking, impact or a combination of the two. This incident had followed a previous one the week before as a result of which the child was detained in hospital for a number of days.

138. On Appeal, the Court held that the evidence of the previous incident was relevant to prove the necessary intent on the day of the fatal act, and that there was sufficient evidence for the jury to convict of murder as opposed to manslaughter. In addition to the Triad of injuries, and the previous incident which the Crown said was due to the Appellant's actions, evidence was found of bruising to the back of the child's head.

139. The Court also considered the case of R v Stacey [2001] EWCA Crim 2031 and distinguished it (paragraph 73 of the Allen judgment).

140. The Court also held that the acceptability of the medical evidence was a matter for the jury (paragraph 69 of the Allen judgment). The Court concluded that the Appellant's conviction for murder was safe.

141. Prosecuting SBS and SIDS cases

  • Any reliance on the unified hypothesis to contradict the accepted triad hypothesis should be strongly resisted.
  • Each case will clearly turn on its own facts but it would appear unlikely that a charge of murder can be justified where the only evidence available is the triad of injuries.
  • In gathering evidence in such cases, it will be important to obtain as much supporting details as is available. In particular clinical evidence and evidence of the nature of the shake/fall/impact may be critical in assessing the prosecution case.
  • The expert evidence finding of SBS might not be considered as diagnostic in itself but simply as strong evidence that the injuries were non-accidental. All the surrounding evidence must be considered.

142. The level of charging will have to be considered carefully in light of the comments in R v Stacey [2001], Allen [2005] and the Harris & others judgments regarding whether the necessary intent can be inferred from the force that is believed to have been used.

Areas should no longer refer SBS or SIDS cases to the Private Office.

Complete Defence

Self Defence (Archbold 19-41)

143. Self defence is as much a defence to murder and manslaughter as to any other offence. As with all cases of offences against the person, when considering the sufficiency of evidence under the Code, if it is plain that such a defence is likely to succeed it would not be right to commence proceedings. Refer to Self Defence and the Prevention of Crime, elsewhere in this guidance

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Procedure

Code for Crown Prosecutors - Considerations

144. Murder is so serious that a prosecution is almost certainly required even in cases such as 'mercy killing' of a sick relative.

145. The personal circumstances of a defendant may be a relevant public interest factor in exceptional circumstances.

Charging Practice

146. A count of murder should refer to the date of death, not the date of the act that caused the death.

147. The prosecution cannot indict a defendant for manslaughter based on an acceptable plea to diminished responsibility or provocation. Such pleas may only be accepted to a count of murder.

148. Infanticide as an alternative to murder should be preferred where a mother has killed her child before it reached 12 months of age; and there is medical evidence that the balance of the mother's mind was disturbed, either because she had not fully recovered from the effects of the birth of the child; or because of the effect of lactation on her.

149. An alternative count of aiding and abetting suicide, contrary to section 2 Suicide Act, should be considered where there is evidence of the defendant aiding and abetting someone else to commit suicide, rather than evidence of a suicide pact.

150. Please refer to the Specimen indictment on the Case Management System - Indictment Builder.

Acceptability of Pleas

151. Before accepting a plea to manslaughter on the grounds of diminished responsibility, there should be:

  • a satisfactory psychiatric report that concludes that the defendant fulfils the criteria set out in section 2(1) Homicide Act 1957 agreement between the police, CPS and counsel; and
  • consultation with the family of the victim.

Be cautious where:

  • the report's findings depend on certain facts provided by the defendant which cannot be proven by independent evidence;
  • where there are a number of specialist reports which give conflicting opinions of whether the defendant fulfils the criteria; or
  • the medical evidence appears to be straining to bring a defendant within the criteria.

152. Before accepting a plea to manslaughter on the ground of provocation, ensure that:

  • the investigating officer has been consulted;
  • the CPS and counsel are satisfied that there is insufficient evidence to continue with murder; and
  • the family of the victim have been consulted.

153. Pleas to manslaughter on the grounds of a suicide pact may be accepted where all the evidence, all the medical reports and the representations from the defence are available. Ensure also that the family of the victim have been consulted.

Internal Referral Requirements

154. The following cases must be notified to your CCP or designated officer as soon as practicable.

a) murder;

b) conspiracy to commit murder;

c) attempted murder;

d) concealment of birth;

e) infanticide; and

155. In addition if any of the following characteristics are present the case should be dealt with by the area Complex Casework Unit (CCU):

  • "Hate related murders"
  • "Mercy killings"
  • aiding and abetting suicide
  • High profile / multi victim / multi defendant murders
  • Cases involving complicated PII issues
  • Sensitive, serious or complex cases of major media interest e.g. allegations involving individuals or organisations with a high public profile
  • Cases requiring consideration of gross negligence manslaughter and any case involving a fatality in which the investigation is being conducted in accordance with the "Deaths at Work" protocol (but note a separate referral practice is in place for offences under the Corporate Manslaughter and Corporate Homicide Act 2007 see legal guidance on Corporate Manslaughter)
  • Medical manslaughter - these cases must be referred to Special Crime Division HQ))
  • Cases involving deaths in police or prison custody, where there is any suggestion that an agent of the state may have had some responsibility for the death, will continue to be referred to Special Crime Division HQ. e.g where there was some culpability by officers in allowing the death to occur or causing the death

Medical Reports for the Court

156. In every murder case, the court will require a report about the defendant's medical condition. However, following the case of R v Reid (2002) 1 Cr App R 21, there is now no requirement for the Crown to obtain a medical report for the Court's benefit. You should make yourself aware of any local arrangements made by the Crown Court in your Area.

Pathologist's Reports and Other Medical Issues

157. Do not send a case of murder without receipt of a pathologist's statement covering the cause of death. Release the pathologist's statement to the defence as quickly as possible so that they may arrange a second post-mortem if required or so that the coroner may release the deceased's body.

158. In most cases, the Crown's pathologist will only provide an "interim report" giving the likely cause of death. A full report will follow. Prosecutors are reminded that in cases involving head injuries, delays of up to 12 weeks can occur whilst neurological analysis is undertaken. Pathologists will generally complete their final report once all other studies have been completed e.g. histology, toxicology etc.

159. In cases where a request is received for the removal of an organ for transplant purposes, refer the request to the CCP or designated lawyer.

Bail

160. Section 114 amends Schedule 1 to the Bail Act 1976.

Section 114(2) provides that bail may not be granted to someone charged with murder unless the court is of the opinion that there is no significant risk that, if released on bail, that person would commit an offence that would be likely to cause physical or mental injury to another person. Furthermore section 114(3)(a) states that the court in deciding whether there is no such significant risk, must have regard to any relevant considerations as stated in paragraph 9 of Part 1 of Schedule 1 to the Bail Act 1976.  Section 114(3)(b) amends paragraph 9 in relation to bail decisions where the alleged offence is imprisonable and triable in the Crown Court. This section provides that, in deciding whether to grant bail in a case where the court is satisfied that there are substantial grounds for believing that the person would commit an offence while on bail, the court must have regard to the risk that such further offending would, or would be likely to, cause physical or mental injury to another person.

Section 115 of the Coroners and Justice Act 2009, provides that where a person is charged with murder, bail can only be granted by a judge of the Crown Court. The power of the magistrate's court to consider bail in murder cases, whether at first hearing or after a breach of an existing bail condition, is now removed.

Where a person charged with murder appears or is brought before a magistrate's court, a bail decision must be made by a judge of the Crown Court as soon as is reasonably practicable, and in any event within 48 hours (excluding public holidays) beginning with the day after the person's appearance in the magistrates' court. If necessary the person must be committed in custody to the Crown Court to enable a bail decision to be made (see s115(4)).  It is immaterial (see s 115(5)) whether that person is at the same time sent for trial or being remanded following adjournment of proceedings under section 52 of the Crime and Disorder Act 1998 - which requires a defendant charged with an offence only triable in the Crown Court to be sent by the magistrate's court to the Crown Court forthwith.

161. The court must give reasons for grant of bail in cases of murder, manslaughter or attempt murder: s 9A Bail Act 1976.

162. Under s 56 Crime & Disorder Act 1998 there is a rebuttable presumption that no person charged with murder, manslaughter or attempted murder shall be granted bail, if previously convicted for any such offence and, in the case of manslaughter, sentenced to imprisonment (or detention if a child). However, note now the decision in Ilijokov v Bulgaria 2001 7 Archbold News 1.

163. If a person charged with murder is granted bail, there is a mandatory bail condition which has to be imposed. Under section 3(6A) Bail Act 1976, a court that releases a defendant on bail when charged with murder must impose at least 2 bail conditions:

1) a requirement that the defendant undergoes examination by 2 medical practitioners, one of whom has been approved for the purposes of s.12 Mental Health Act 1983; and

2) a requirement that the defendant attends for examination when directed by the court.

164. Prosecutors who are minded to recommend that a defendant charged with murder might be bailed should be in a position to suggest a place of examination to be specified in a bail condition. Contact the Senior Medical Officer at the local prison nearest the court or telephone the Duty Principal Medical Officer at the Prison Health Policy Unit and Task Force, Wellington House, 133-135 Waterloo Road, London SE1 8YG.

The Victim's Family

165. You must keep any close relatives of the deceased informed of the case's progression. From 1 October 2007 prosecutors should refer to the guidance  Victim Focus Scheme - Guidance On Enhanced CPS Service For Bereaved Families.

Other Matters

166. Only photographs which are necessary for the presentation of the case should be compiled by the police into an album. Take special care when instructing the investigating officer to avoid distress for the jury and for the relatives.

167. For material that should be submitted to the Probation Service in the preparation of Pre-Sentence Reports, refer to Provision of Pre-sentence Reports, elsewhere in this guidance.

Procedure - Post-trial

168. The police will provide the Home Office with details of the indictment in all cases where the defendant has been convicted.

169. The police also have responsibility for providing any relevant information to the Prison and Probation Services, not the CPS.

170. Any request under the National Protocol Regarding the Passage of Information in Respect of Homicide Life Sentence Prisoners should be referred to the officer in the case.

171. The Benefits Agency should be notified following a conviction of a person for killing his or her spouse or partner.

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