Homicide: Murder and Manslaughter

• Introduction
• Procedure
  • Bail
  • Reports
  • Coroner
  • CPS Guidance and Guidelines
  • Other Matters
• Murder
  • Introduction
  • Intent
  • Attempted Murder
  • Causation
  • Alternative Counts and Verdicts
  • A year and a day
• Partial Defences to Murder
  • Diminished Responsibility
  • Loss of Control
  • Suicide Pact
  • Infanticide
• Involuntary Manslaughter
  • Unlawful Act Manslaughter
• Murder Sentencing
  • For Youths under 18 years old
  • Aggravating Factors
  • Mitigating Factors
• Manslaughter Sentencing
• Familial Deaths and Serious Physical Harm
  • Potential Range of the Offence
  • What Amounts to Reasonable Steps

Introduction

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 loss of control, diminished responsibility or killing pursuant to a suicide pact.
2. Conduct that was grossly negligent given the risk of death, and did kill ("gross negligence manslaughter"); and
3. Conduct taking the form of an unlawful act involving a danger of some harm that resulted in death ("unlawful and dangerous act manslaughter").

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

Cases involving allegations of Gross Negligence and Corporate Manslaughter should be referred to Special Crime and Counter Terrorism Division - see the Referral of Cases guidance, Gross Negligence Manslaughter guidance and the Corporate Manslaughter guidance.

Procedure

Bail

See the Bail guidance for specific considerations relating to murder and manslaughter. Prosecutors should note the provisions of sections 114, 115 Coroners and Justice Act 2009 and section 3(6A) Bail Act 1976. 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. The Senior Medical Officer at the local prison nearest the court should be contacted.

The court must give reasons for grant of bail in cases of murder, manslaughter or attempted murder - s.5(2A) Bail Act 1976.

No bail is to be granted for defendants charged with or convicted of homicide or rape after previous conviction of such offences unless the court or, as the case may be, the constable considering the grant of bail is of the opinion that there are exceptional circumstances which justify it - section 25 Criminal Justice and Public Order Act 1994.

Reports

The role and expectation of expert witnesses is set out at Part 19 of the Criminal Procedure Rules.

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. Prosecutors should be aware of any local arrangements in the local Crown Court.

A murder case should not be sent without receipt of a pathologist's statement covering the cause of death. This should be released 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.

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.

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.

Coroner

Section 11 and Schedule 1 of the Coroners and Justice Act 2009 sets out duties and powers for the suspension of coroners' investigations (including any inquest) where a person has been or may be charged with a homicide offence in connection with the deceased's death.

CPS Guidance and Guidelines

• There are other specific homicide offences, for example, infanticide, and causing death by dangerous or careless driving. For dangerous driving see Road Traffic - Fatal Offences and Bad Driving. Separate legal guidance is available for Corporate Manslaughter, Gross Negligence Manslaughter and Policy for Prosecutors in Respect of Cases of Encouraging or Assisting Suicide.
• Referral Requirements are set out within the Referral of Cases guidance.
• Prosecutors must have regard to the Secondary Liability: charging decisions on principals and accessories guidance in relevant cases.
• Procedural guidance appears within the Criminal Procedure Rules and prosecutors should note the availability of Measures to assist a witness or defendant to give evidence at Part 18 of the Rules.
• Prosecutors must keep any close relatives of the deceased informed of the case's progression. Prosecutors should refer to the guidance Bereaved Families - Guidance on CPS service to bereaved families in homicide cases and the National Standards of Support after acquittal.
• Guidance is available on Suspects and Defendants with Mental Health Conditions or Disorders. Prosecutors should also consider the Psychological Evidence Toolkit - A guide for Crown Prosecutors, Victims and Witnesses who have Mental Health Issues and/or Learning Disabilities - Prosecution Guidance and R v Cokesix Lubemba [2014] EWCA Crim 2064 from para.38. In sentencing cases prosecutors must consider principles within R v Vowles [2015] EWCA Crim 45 and R v Edwards [2018] EWCA Crim 595.
• Hostility on any of the monitored grounds of hate crime, (disability, race, religion, sexual orientation or transgender identity), can feature in homicide. The prosecutors response needs to reflect guidance on disability hate crime, racially and religiously aggravated crime or homophobic and transphobic crime
• For guidance on Shaken Baby Syndrome (SBS) and Sudden Infant Death Syndrome (SIDS), see Non Accidental Head Injury Cases (NAHI, formerly referred to as Shaken Baby Syndrome [SBS]) - Prosecution Approach.
• Unduly Lenient Sentence guidance is available. The Sentencing Council has relevant guidelines, being: Corporate Manslaughter, Gross Negligence Manslaughter, Manslaughter by reason of diminished responsibility, Manslaughter by reason of loss of control and Unlawful Act Manslaughter. Other guidelines can be of relevance depending on the counts on the indictment such as those for attempted murder, breach of food safety etc.

Other Matters

The public interest in prosecuting homicide cases is high as the harm caused will inevitably be of the utmost seriousness. Other homicide chapters above set out specific public interest factors. Subject to sufficiency of evidence, a prosecution is almost certainly required, even in cases such as 'mercy killing' of a sick relative.

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

There should be agreement between the police, CPS and counsel and consultation with the family of the victim before accepting a plea to manslaughter,

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

The police have responsibility for providing relevant information to the Home Office, Prison and Probation Services, not the CPS.

Murder

Introduction

Subject to three exceptions (see Partial Defences to Murder 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 King's Peace (not in war-time);
• with intent to kill or cause grievous bodily harm (GBH).

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

Intent

The intent for murder is an intention to kill or cause grievous bodily harm (GBH). 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). The necessary intention exists if the defendant feels sure that death, or serious bodily harm, is a virtual certainty as a result of the defendant's actions and that the defendant appreciated that this was the case - R v Matthews (Darren John) [2003] EWCA Crim 192.

Attempted Murder

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 and Hayles (1990) 90 Cr App R 226.

Causation

The prosecution must show a causal link between the act/omission and the death. 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 [1999] 1 All ER 344.

It does not matter that the act/omission by the defendant merely "hastened" the victim's death: R v Dyson (1909) 1 Cr App R 13.

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.

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 - see R v Wallace (Berlinah) [2018] EWCA Crim 690; R v Kennedy (Simon) [2008] Crim. L.R. 222. Examples of intervening acts are:

1. 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.
2. Acts of God or nature, if entirely unforeseen and unconnected with the defendant's act.
3. An act of the victim 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 and Davis (1992) 95 Cr. App. R. 1. Note: Reeves v Metropolitan Police Commissioner [1999] UKHL 35 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.
4. 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.

The defendant must take his victim as he finds him under the 'egg-shell skull' rule: R v LeBrun (1991) 4 All ER 673. As a result, any pre-dispositions or inherent weaknesses or vulnerabilities of the victim are deemed irrelevant.

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. Prosecutors should refer to the legal guidance on Self-Defence and the Prevention of Crime.

Alternative Counts and Verdicts

Manslaughter is an alternative verdict that can be returned on a prosecution for murder. Section 6 Criminal Law Act 1967 provides that, on an indictment for murder, a person found not guilty may be found guilty of manslaughter.

Prosecutors must carefully consider the evidence to determine whether sufficient evidence exists for a charge of murder and whether a partial defence may exist or not. In reviewing the evidence, Prosecutors must further determine whether the mens rea for murder can be established. If it cannot, a charge of (unlawful act or gross negligence) manslaughter falls for consideration.

In murder cases, when a verdict of guilty of manslaughter arises as a real possibility, a separate count or counts of manslaughter should be added to the indictment. Notwithstanding section 6 of the Criminal Law Act 1967, above, it is preferable to include any appropriate alternative counts in the indictment. The reason for this is to avoid reliance on the trial judge or prosecuting counsel in bringing any such alternatives to the jury's attention. See further R v Foster (Mark) [2007] EWCA Crim 2869.

Consideration of whether to include a lesser or alternative count in the indictment will include whether that would be likely to attract a plea of guilty and, if so, whether such a plea would be acceptable. Considerations/views should be recorded on the file.

The prosecution should decide in advance of a murder trial whether or not an alternative count of manslaughter should be added to the indictment. Prosecutors should take the following approach and be aware of the consequences:

• If the alternative is added, and the jury cannot reach a verdict in relation to the first count (murder), but return a verdict of guilty in relation to the alternative count (manslaughter), then the prosecution should not seek a retrial on the first count (murder).
• If no alternative is included on the indictment, the prosecution must decide when the jury retire to consider their verdict on murder whether to seek a re-trial if the jury cannot agree, or whether it would be prepared to accept the alternative (manslaughter). Note that the prosecution may be directed to consider the alternative in any event (R v Coutts [2006] UKHL 39).
• If the prosecution submits that the judge should accept the verdict of manslaughter, then it will be accepting that it will not be proceeding to a retrial on the charge of murder.
• If the prosecution submits that the judge should not accept the verdict of manslaughter, and therefore seeks a retrial on the charge of murder, the judge may agree to accede to this, discharge the jury and order a retrial on the charge of murder.
• If, despite representations to the contrary, the judge accepts the verdict of manslaughter because it meets the justice of the case, the prosecution will not be able to seek a retrial on the charge of murder even if there is no abuse of process (R v JB [2013] EWCA Crim 356).

A year and a day

The Consents to Prosecute guidance requires the Attorney General's consent to be obtained (section 2(2) Law Reform (Year and a Day Rule) Act 1996) before initiating proceedings, if:

1. The injury alleged to have caused the death was sustained more than three years before the death occurred; or
2. The person has previously been convicted of an offence committed in circumstances alleged to be connected to the death.

To ensure consistency of approach, such cases should be referred to Area CCU Heads, prior to the obtaining of the Attorney General's consent. All applications for Attorney Generals consent should be approved by the Chief Crown Prosecutors/DCCPs or Heads of Central Casework Divisions/DHOD.

In circumstances, such as those where a defendant is convicted of an offence e.g. assault relating to the victim, but where the victim's injuries eventually proves fatal and the defendant is then charged with murder (potentially several years later), prosecutors should consider s.74(3) of the Police and Criminal Evidence Act 1984. This section allows for the earlier conviction to constitute admissible evidence to prove that the defendant was guilty of assaulting the victim but also potentially guilty of murder. Whilst the earlier conviction is admissible, it is still open for the defendant on the balance of probabilities to show he did not commit the offence for which he was previously convicted; Also, whilst s.78 PACE can be used to exclude the earlier conviction, this should not be based on some 'nebulous' concept of unfairness. Rather, it needs to specifically relate to the particular circumstances of the case in question. For further information see the case of R v Clift, R v Harrison [2012] EWCA Crim 2750.

Partial Defences to Murder

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. They are: diminished responsibility, loss of control and killing in pursuance of a suicide pact. In addition, there is a so called 'concealed' partial defence, created by legislation in the act of infanticide, see below in this guidance.

Note: Duress is not a defence to a charge of murder or attempted murder.

Pleas to manslaughter based on the alleged behaviour of the deceased should not be readily accepted because the prosecutor feels that this cannot be disproved.

Prosecutors should be alert to the risk of victim blaming where the deceased is not there to provide an answer. This includes attempts to portray the victim as complicit in their own abuse. Early case building to secure an understanding of the context in which the offence was committed may provide information and leads to witnesses and evidence that can be used in rebuttal.

Diminished Responsibility

Elements of the offence

Section 52 of the Coroners and Justice Act 2009 ("CJA 2009") replaces the definition of diminished responsibility in section 2 of the Homicide Act 1957 ["HA 1957"}. It applies to any prosecution for a murder occurring before 4 October 2010.

There is a four-stage test, of which all four elements must be proved:

1. Whether the defendant was suffering from an abnormality of mental functioning
2. If so, whether it had arisen from a recognised medical condition
3. If so, whether it had substantially impaired his ability either to understand the nature of his conduct or to form a rational judgment or to exercise self-control (or any combination)
4. If so, whether it provided an explanation for his conduct

Where section 2 applies the conviction is for manslaughter but that does not prevent other parties to the killing from being convicted of murder.

The abnormality of mental functioning provides an explanation for D's conduct if it causes, or is a significant contributory factor in causing, D to kill. Abnormality of mental functioning means a state of mind so different from that of ordinary human beings that the reasonable person would term it abnormal - R v Byrne [1960] 2 QB 396. It covers the ability to exercise willpower or to control physical acts in accordance with rational judgement. It does not have to be the only cause or even the most important factor in causing the behaviour. But it must be more than a merely trivial factor. It is a question for a jury.

R v Conroy [2017] EWCA Crim 81 is a case where a murder conviction was upheld following an irrational decision to kill a fellow inmate in order to have undisturbed sexual intercourse but which was executed relying on logical and rational decisions.

Substantial impairment means "important or weighty" - R v Golds [2016] UKSC 61.

Medical evidence

An expert psychiatrist is permitted to express an opinion not only on all elements of the section but also on the ultimate issue - R v Brennan [2014] EWCA Crim 2387.

The jury is not bound to accept medical evidence. However if there are no other circumstances to consider, unequivocal, uncontradicted medical evidence favourable to a defendant should be accepted by a jury and they should be so directed. If there are other circumstances to be considered, the medical evidence even if unequivocal and uncontradicted, must be assessed in the light of the other circumstances - R v Sanders [1991] Crim LR 781. Where there is unchallenged medical evidence of diminished responsibility and no other evidence which, looked at in the round, was at least capable of rebutting the defence, the trial judge should withdraw a charge of murder from the jury: R v Brennan [2014] EWCA Crim 2387.

The prosecution should normally adduce its own expert evidence where it proposes to contest a defence of diminished responsibility. Further, if there are other facts or circumstances which might cast a different light on defence expert medical evidence that is not contradicted and the matter is to be left to the jury, those facts and circumstances ought to be highlighted by prosecuting counsel in discussion with the judge before closing speeches and in due course specifically identified to the jury by the judge in the summing-up R v Brennan [2014] EWCA Crim 2387 (paras 2, 49-51, 67-68).

R v Bunch (Martin John) [2013] EWCA Crim 2498 upheld and followed R v Byrne (Patrick Joseph) [1960] 2 Q.B. 396. This line of cases establishes that medical evidence is a practical necessity if a s.2 defence is to succeed because the onus is on the defendant. The defence must have medical evidence that is relevant to whether the defendant was suffering from an abnormality of mental functioning; whether that arose from a medical condition; whether it substantially impaired his ability to do one of the three things listed in s.2 (1A) HA 1957; and whether it caused, or was a significant contributory factor in causing him to carry out the killing.

Recognised medical condition

Recognised medical conditions can be found in the World Health Organisation's International Classification of Diseases (ICD-10) and the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (DSM-IV).

The fact that a recognised medical condition appears in the classificatory lists does not necessarily mean that it is capable of being relied upon to show an abnormality of mental functioning attributable to a recognised medical condition sufficient to allow diminished responsibility to be left to the jury. (Dowds v The Queen [2012] EWCA Crim 281)

There is also scope for a condition which is not included in such a list to be deemed a recognised medical condition for the purposes of this test. This applies to emerging conditions which, while being recognised, might not yet have been included in the accepted classificatory lists. The defence could call an acknowledged specialist who has had their work validated, to give evidence to this effect.

Voluntary acute intoxication cannot found diminished responsibility - R v Dowds (Stephen Andrew) [2012] EWCA Crim 281. In cases where a defendant who suffered from a mental abnormality was also intoxicated the correct approach is for the jury to ignore the effects of intoxication and to ask whether the defendant's other condition(s) of mental abnormality substantially impaired his responsibility for the killing - R v Dietschmann [2003] UKHL 10.

• R v Joyce Kay [2017] EWCA Crim 647 A person suffering from a recognised medical condition, in that case schizophrenia, relied on the partial defence of diminished responsibility where voluntary intoxication had triggered the psychotic state. The condition was of such severity that, even without intoxication, it would have impaired responsibility
• R v Wood [2008] EWCA Crim 1305 - D had a recognised medical condition in the form of alcohol dependency syndrome and was intoxicated at the time of the killing: The jury should be entitled to have regard to the alcohol dependency syndrome and D's intoxication, but leaving out of account, insofar as it is possible, D's voluntary intoxication.

Burden of Proof

On a charge of murder, it is for the defence to prove that the person charged is not liable to be convicted of murder on the basis of diminished responsibility (sections 2(2) and 2(3) HA 1957). It is for the defence to establish the defence, on the balance of probabilities. This reverse burden of proof applies to diminished responsibility and not to loss of control because diminished responsibility depends on the internal mental condition of the defendant, whereas loss of control depends on an objective judgment of his actions as a reaction to external circumstances - R v Foye [2013] EWCA Crim 475, at para 43.

Acceptability of Plea

The Supreme Court have commented on acceptance of pleas and the need to do so only where it is proper to. Lord Hughes, in Robinson v The State [2015] UKPC 34, stated that: "It is accepted practice to accept pleas of guilty to manslaughter by reason of diminished responsibility where, on careful analysis, it is plain to the Crown that that is the right outcome. It remains of great importance that pleas are accepted only in cases where it is proper to do so. Generally, that means cases where there is no significant material dispute either of underlying fact or of medical analysis, and moreover it is clear that the defendant's mental responsibility for the killing can properly be described as substantially impaired. There may still be the very occasional case which is of such public profile or concern that it has to be the subject of full trial. So long as this careful consideration is given to each case, it is plainly of public benefit for pleas of guilty of manslaughter to be accepted. This avoids trials on non-issues which will be both expensive to the public and distressing to many of those involved, whether as witnesses, or relatives of the deceased, or as defendants and their families".

Loss of Control

The common law defence of provocation was replaced with sections 54 and 55 of the CJA 2009. It applies to defendants charged with murder, where the acts or omissions resulting in the death of the victim took place on or after 4 October 2010 (Schedule 22 paragraph 7). The statutory defence is self-contained within the statutory provision so it should rarely be necessary to look at cases decided under the old law of provocation.

Elements of the offence

The loss of control defence has three components in section 54(1)(a)(b) and (c) of the CJA 2009:

• Loss of control (the first component),
• A qualifying trigger (the second component), and
• An objective test (the third component) - A person of D's sex and age, with a normal degree of tolerance and self-restraint and in the circumstances of D, might have reacted in the same or in a similar way to D.

The trial judge should consider the three components sequentially.

There must be sufficient evidence on a charge of murder before a judge can leave the defence to the jury - section 54(5)(6).

Burden of Proof

Section 54(5) Coroners and Justice Act 2009 clarifies the burden of proof for loss of control. Sufficient evidence is adduced to raise an issue with respect to the defence if evidence is adduced on which, in the opinion of the trial judge, a jury, properly directed, could reasonably conclude that the defence might apply. It is a matter of law and therefore an issue for the judge to decide whether there has been sufficient evidence raised to put the partial defence before a jury. Thereafter, the prosecution retains the legal burden of proving, to the criminal standard of proof, that the defence is not satisfied. Provided the statutory conditions are met, loss of control should be left to the jury.

Loss of Control

Prosecutors should consider whether sufficient evidence exists to show that the killing resulted from loss of control. If this first component of the partial defence cannot be met there would be no need to consider the further components - R v Gurpinar (Mustafa) [2015] EWCA Crim 178. In R v Dawes, Hatter and Bowyer [2013] EWCA Crim 322, the second appellant (H) had fatally stabbed his victim after the break-up of their relationship. The judge decided that the defence of loss of self-control should not be left to the jury because there was insufficient evidence to raise that as an issue.

In R v Christian [2018] EWCA Crim 1344, although there was evidence to support the existence of both a loss of control and a qualifying trigger, the judge ruled that D's reaction was so extreme and so protracted that no jury properly directed could conclude that the notional reasonable person might have reacted or behaved in the same or a similar way (as required by the final element of the partial defence). D appealed on the basis that the evidential threshold that must be crossed before the partial defence is left to the jury is minimal and that the judge had adopted the incorrect approach by not viewing the evidence in a fashion that was most favourable to D. The CACD held that the judge had taken the right approach. The court recognised that the terms of section 54(5) and (6) of the CJA 2009 refer to sufficient evidence. The court cited R v Gurpinar [2015] EWCA Crim 178 in which Lord Thomas CJ stated that, it is clearly the judges task to analyse the evidence closely and be satisfied that there is, taking into account the whole of the evidence, sufficient evidence in respect of each of the three components of the defence. The judge is bound to consider the weight and quality of the evidence in coming to a conclusion.

It does not matter whether or not the loss of control was sudden. The partial defence could still be put before a jury even where there has been delay between the trigger incident and the killing. However, the judge will have to determine and the prosecutor must consider whether the time delay was sufficiently substantial to render the defence of loss of control untenable and therefore not sufficient to put before the jury (section 54(2) CJA 2009).

A qualifying trigger

Was there a meaningful qualifying trigger? In section 55(3) of the CJA 2009, it is not enough that the defendant is fearful of violence. He must fear serious violence. At section 55(4)(a) of the CJA 2009 the circumstances must not merely be grave, but extremely so. At section 55(4)(b) of the CJA 2009 it is not enough that the defendant has been caused by the circumstances to feel a sense of grievance. It must arise from a justifiable sense not merely that he has been wronged, but that he has been seriously wronged - R v Clinton and others [2012] EWCA Crim 2, at para.11. Prosecutors must consider the gravity of the circumstances and the extent to which the defendant was seriously wronged, and whether he had a justifiable sense that he had been seriously wronged.

Did the defendant deliberately seek to provide himself with an excuse to use violence by inciting, encouraging or manufacturing a situation for that purpose so that so that neither qualifying trigger in section 55(3)(4) or (5) of the CJA 2009 should be available as set out in sections 55(6)(a) and 55(6)(b) of the CJA 2009?

Sexual infidelity cannot by itself qualify as a trigger for the second element of the defence - section 55(6)(c) of the CJA 2009. However, sexual infidelity might properly be taken into consideration by virtue of section 54 of the CJA 2009 where it is integral to the facts as a whole, being one of a number of factors which caused the defendant to lose control. In such circumstances, the prohibition in section 55(6)(c) of the CJA 2009 would not operate to exclude it R v Clinton and others [2012] EWCA Crim 2. The prosecutor should conduct an objective evaluation to assist the judge as to the features identified by the defence which are said to constitute a permissible trigger or triggers. In appropriate cases, it can also be taken into account when deciding whether a person of D's sex and age, with a normal degree of tolerance and self-restraint and in the circumstances of D, might have reacted in the same or in a similar way to D.

Even if the defendant lost control as a result of one of the qualifying triggers, if he acted in a considered desire for revenge the defence is not available. (Section 54(4) CJA 2009)

An objective test

A person of D's sex and age, with a normal degree of tolerance and self-restraint and in the circumstances of D, might have reacted in the same or in a similar way to D.

Whether the circumstances were extremely grave and the defendant's sense of being seriously wronged by them was justifiable are matters that require objective assessment by the judge at the end of the evidence and, if the defence is permitted to stand, by the jury considering their verdict - R v Dawes [2013] EWCA Crim 322.

A mental disorder may be a relevant circumstance of the defendant and may be relevant to the gravity of the qualifying trigger. However, in applying the objective test at section 54(1)(c) of the CJA 2009, a mental disorder cannot be relevant to the question of the degree of tolerance and self-restraint exercised by the hypothetical person. That hypothetical person is a person with a normal degree of tolerance and self-restraint and the defendants conduct is to be judged against normal standards see R v Rejmanski (Bartosz) [2017] EWCA Crim 2061.

A mental disorder can, however, be a relevant circumstance of the offender and may be relevant to the partial defence of diminished responsibility. The law does not therefore ignore a mental disorder that, through no fault of a defendant, rendered them unable to exercise the necessary degree of self-control (see paras 12-30 of Rejmanski).

Self-induced intoxication is not a specific defence to a criminal charge. However, if a sober person in the defendant's circumstances, with normal levels of tolerance and self-restraint, might have behaved in the same way as the defendant, the defendant would not be deprived of the loss of control defence simply because he was intoxicated. Different considerations would arise if a defendant had a severe problem with alcohol or drugs and was mercilessly taunted about the condition, to the extent that it constituted a qualifying trigger: the alcohol or drug problem would then form part of the circumstances for consideration - R v Asmelash (Dawit) [2013] EWCA Crim 157.

Sufficiency of Evidence

Whether there is evidence on which a reasonable jury properly directed could conclude that the partial defence might apply. This requires a common-sense judgment based on an analysis of all the evidence. Prosecutors should note that the judge should not reject disputed evidence which the jury might choose to believe -

R v Clinton and others [2012] EWCA Crim 2. However the judge should assess the weight and quality of the evidence adduced - R v Jewell [2014] EWCA Crim 414 at paragraphs 51-54.

Acceptability of Plea

Before accepting a plea to manslaughter on the ground of loss of control, ensure that the investigating officer has been consulted; CPS and counsel are satisfied that there is insufficient evidence to continue with murder; and that the family of the victim have been consulted.

It is generally desirable that the possibility of loss of control arising should be notified to the judge as early as possible in the management of the case, even though it may not form part of the defence case. If, at the conclusion of the evidence, there is a possibility that the judge should leave the issue to the jury when it is not part of the defence case, the judge must receive written submissions from the advocates so that he can carefully consider whether the evidence is such that the statutory test is met - R v Gurpinar (Mustafa) [2015] EWCA Crim 178.

The Crown should invite the judge to withdraw the loss of control defence from the jury where there is insufficient evidence on any one of the three elements to allow the defence to be put to the jury. The Court of Appeal have emphasised this in R v Clinton and others [2012] EWCA Crim 2, at para. 105 and at para. 82 of R v Rejmanski (Bartosz) [2017] EWCA Crim 2061.

Suicide Pact

A person, acting in pursuance of a suicide pact between him and another, who kills the other or is a party to the other being killed by a third person, is guilty of manslaughter and not murder (section 4 HA 1957).

The defence must prove the existence of a suicide pact, as defined at section 4(3) HA 1957, and that at the time of the killing the Defendant had the intention of dying himself (section 4(2) HA 1957).

Once the killing has been proved, the jury must answer the following two questions:

1. Was there a suicide pact?
2. If there was, was the defendant at the time of the killing acting in pursuance of the pact; did he have the settled intention of dying in pursuance of it?

Proof of a suicide pact is not conditional on proof of a mental abnormality - R v Wood [1990] Crim. L.R. 264.

This reverse legal burden under section 4(2) HA 1957 is analogous to that of diminished responsibility and is compatible with the presumption of innocence - R v Foye [2013] EWCA Crim 475.

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.

Any case involving consideration of assisting or encouraging suicide should be referred to the Special Crime and Counter Terrorism Division. Prosecutors should consult the legal guidance Policy for Prosecutors in Respect of Cases of Encouraging or Assisting Suicide and the Referral of Cases guidance.

Infanticide

The case of R v Gore [2007] EWCA Crim 2789 establishes that there is no requirement for all elements of murder to be proved before a defendant can be convicted of infanticide. Consequently, the mens rea for infanticide does not require an intention to kill or cause serious bodily harm. The effect of the amended section 1 of the Infanticide Act 1938 is that infanticide (whether as an offence or as an alternative verdict) applies only in cases where the mother could otherwise have been convicted of murder or manslaughter R v Tunstill [2018] EWCA Crim 1696.

Involuntary Manslaughter

Where an unlawful killing is done without an intention to kill or to cause grievous bodily harm, the suspect is to be charged with manslaughter not murder. Apart from the absence of the requisite intent, all other elements of the offence are the same as for murder.

There are two types of involuntary manslaughter, that caused by the defendant's gross negligence and that caused by his unlawful or dangerous act.

Cases of gross negligence manslaughter should be referred to the Special Crime and Counter Terrorism Division. Separate guidance can be found here.

Unlawful Act Manslaughter

The offence is made out if it is proved that the accused intentionally did an unlawful and dangerous act from which death inadvertently resulted.

Dangerousness

An objective test must be applied to the question as to whether an accused's unlawful act, from which death results, was dangerous - DPP v Newbury (Neil) [1977] Crim. L.R. 359. In judging whether the act was dangerous the test is not did the accused recognise that it was dangerous but would all sober and reasonable people recognise its danger. The jury has to decide whether D's unlawful act exposed V to the risk of "some' harm - Church [1966] 1 QB 59; R v JM and SM [2012] EWCA Crim 2293.

Unlawful act manslaughter requires proof that the defendant committed a relevant crime, with the mens rea for that crime. The unlawful act must therefore be criminal in nature and must also be dangerous - R v Larkin [1943] KB 174.

Transferred malice - An act is dangerous if (in the opinion of the sober and reasonable bystander) it exposed someone to the risk of some harm not necessarily the person who subsequently died - Attorney-General's Reference (No. 3 of 1994) [1997] Crim LR 829.

The act need not be directed against a person (e.g. arson) - see R v Willoughby (2005) 1 WLR 1880.

The "Sober and Reasonable' Bystander

In applying the objective test, 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.

Causation

The prosecution must establish that the unlawful act was a cause of the death without an intervening act to break the chain of causation – R v Lewis [2010] EWCA Crim 151.

Requires proof of the elements of the unlawful act

The prosecution must prove the elements of the unlawful act and also disprove any defences to the unlawful act that are raised.

This resulted in an appeal being allowed in Jennings [1990] Crim. L.R. 588. The court held that the unlawful act must be proved, both as to the actus reus and as to the mens rea. The possession of a weapon, not offensive per se, was not such an act unless accompanied by the requisite intention to use it to inflict injury. That had not been established.

It was held in R v Scarlett (John) [1994] Crim. L.R. 288 that where an accused was justified in using some force and the prosecution case relied on the use of excessive force to prove an assault, the jury should be directed that the defendant could only be guilty of an assault if the prosecution proved that he intentionally or recklessly used such force knowing that it was excessive in the circumstances as he believed them to be.

Negligence

Offences which are criminal only because of the negligent manner of their commission cannot be relied on to prove unlawful act manslaughter - Andrews v DPP [1937] A.C. 576).

Cases where Death Results from the Unlawful Supply of Drugs

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.

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 WLR 612 – where K supplied the drug to B, who then had a choice, knowing the facts, whether to inject himself or not.

Murder Sentencing

All adult offenders convicted of murder receive a mandatory sentence of life imprisonment. An exception is if the offence is so exceptionally high that the early release provisions should not apply, which is known as a ‘whole life order’. A whole life order applies if the offender is aged 21 or over when the offence was committed, and the court considers that the offence or combination of the offence and one or more associated offences is 'exceptionally high'. From the 28 June 2022 this also applies where the offender is aged 18 or over but under 21 when the offence was committed, (section 321 (3B) SA 2020 as inserted by section 126 Police, Crime, Sentencing and Courts Act 2022).

Cases which would normally fall into the category for a ‘whole life order’ are covered in para 2 schedule 21 SA 2020 and include:

• the murder of two or more persons where each murder involved a substantial degree of planning or the abduction of the victim, or sexual or sadistic conduct;
• the murder of a person under the age of 18 involving abduction or sexual or sadistic motivation;
• the murder of a child involving a substantial degree of premeditation or planning, where the offence was committed on or after 28 June 2022;
• political, religious or ideological murder;
• murder of a police officer or prison officer in the course of their duty committed on or after 13 April 2015
• murder by an offender previously convicted of murder

In Wayne Couzens & Others [2022] EWCA Crim 1063 at paragraph 19 the Court of Appeal summarised the principles derived from the statutory provisions and the authorities when making whole life orders. Principle four states that it is "a sentence of last resort for cases of the most extreme gravity" which is "reserved for the few exceptionally serious cases" where "the judge is satisfied that the element of just punishment requires the imposition of a whole life order" – R v Wilson [2010] 1 Cr App R (S) 11 at paragraph 14, R v Reynolds [2015] 1 Cr App R (S) 24 at paragraph 5(iv). In a borderline case, if the judge is in any doubt as to whether this standard is reached, a minimum term order is likely to be the appropriate disposal – R v Jones and others [2006] 2 Cr App R (S) 19 at paragraph 10, R v Reynolds at paragraph 5(ii).

Where the court imposes the mandatory life sentence, it must also specify the minimum term that the offender will serve before being eligible to apply for parole.

Section 321 and 322 of the Sentencing Act 2020 ("SA 2020") applies to all convictions on or after 1 December 2020. These sections require the court to have regard to the general principles set out in Schedule 21 of the SA 2020.

Paragraph 12, Schedule 21 of the SA Act 2020 creates an exception for offences committed before 18 December 2003. This paragraph states that “if the court makes a minimum term order, the minimum term must, in the opinion of the court, be no be greater than the period which, under the practice followed by the Secretary of State before December 2002, the Secretary of State would have been likely to notify to the offender as the minimum period which in the view of the Secretary of State should be served before the prisoner's release on licence”.

For any offences committed on or after 18 December 2003 and convicted on or after 1 December 2020 schedule 21 governs the approach to fixing the minimum term. The schedule sets out a hierarchy of seriousness and appropriate starting points.

For adults aged 21 and over, the starting points are:

• A whole life order (para 2);
• 30 years (para 3);
• 25 years (effective from 2 March 2010, para 4); and
• 15 years (para 5).

For 18 -20 years olds, the starting points are:

• A whole life order (section 321(3B) SA 2020 as inserted by section 126 Police, Crime and Sentencing Courts Act 2022 from 28 June 2022)
• 30 years (para 3);
• 25 years (effective from 2 March 2010, para 4)
• 15 years (para 5)

In R v Peters; R v Palmer; R v Campbell [2005] EWCA Crim 605; [2005] 2 Cr.App.R.(S.) 101, it was said that it should be borne in mind that although eighteenth and twenty-first birthdays represent significant moments in the life of an individual, they are not necessarily indicative of the individual’s true level of maturity, insight and understanding; that such characteristics are not postponed or suddenly accelerated by those birthdays; and that the first stage in the process is to select the prescribed statutory starting point; then to allow, where the offender’s age, as it affects their culpability and the seriousness of the crime justifies it, a substantial discount from the starting point.

The approach of a court to a sentence of life imprisonment for murder, whether the offender is a principal or a secondary party, is governed by the provisions of Schedule 21 SA 2020. Although the culpability of the secondary party may in many cases be less than the principal, the sentences must be viewed proportionately in the light of the policy of the law that he who encourages the commission of a murder or assists with the commission is to be dealt with as a murderer - LJ Thomas in AG Ref. No 24 of 2008 (Sanchez) [2008] EWCA Crim 2936.

Where the offence is not so serious as to warrant a whole life order but the seriousness of the offence is particularly high, the appropriate starting point is 30 years’. Such cases include (but are not limited to and are detailed in para 3 schedule 21 SA 2020 as follows:

• The murder of a police or prison officer in the course of their duty for offences committed before 13 April 2015;
• A murder involving the use of a firearm or explosive;
• A murder carried out for gain (in the course of a robbery or burglary, or done for payment);
• A murder intended to obstruct or interfere with the course of justice;
• A murder involving sexual or sadistic conduct;
• The murder of two or more persons;
• A murder that is racially or religiously aggravated or aggravated by sexual orientation; or
• A murder that is aggravated by hostility related to disability or transgender identity for offences committed on or after 3 December 2012.

Where the offence does not warrant a whole life order or a 30 year starting point and the offender is aged over 18, for all offences committed on or after 2 March 2020 the normal starting point is 25 years.

Where the offender (18 or over) took a knife or other weapon to the scene intending to commit any offence, or have it available to use as a weapon, and used that knife or other weapon in committing the murder the normal starting point is 25 years’. This increased minimum term does not apply in relation to a life sentence imposed for an offence of murder committed before 2 March 2010 (para 4).

For Youths under 18 years old

Section 259 SA 2020 states that a youth convicted of murder or any other offence which is fixed by law as life imprisonment. The Court must sentence the youth to be detained at her Majesty’s pleasure. Whole life orders do not apply to youths.

Schedule 21 SA 2020 sets out the stating points for youths as follows:

• The starting points are based upon the age of the offender at time the offence was committed which are detailed in table found in paragraph 5A, effective from 28 June 2022. Please click hyperlink to be taken to the table.
• 12 years prior to the 28 June 2022 (para 6)

The Sentencing children and young people: Definitive guideline should be applied when dealing with offenders aged under 18.

It is only after having chosen a starting point that the court then goes on to consider aggravating or mitigating factors to the extent not allowed for them in the choice of starting point (para 7) Aggravating and Mitigating factors.

Aggravating factors

Aggravating factors that may be relevant include (see para 9):

• A significant degree of planning or premeditation;
• The victim was vulnerable because of age or disability;
• Mental or physical suffering inflicted on the victim before death;
• The abuse of a position of trust;
• The use of duress or threats against another person to facilitate the commission of the offence;
• The victim was providing a public service or performing a public duty; and
• Concealment, destruction or dismemberment of the body.

Mitigating factors

Mitigating factors include (see para 10):

• An intention to cause serious bodily harm rather than kill;
• Lack of premeditation;
• The offender suffers from a mental disorder or disability (not falling within section 2(1) of the Homicide Act 1957), which lowered their degree of culpability;
• The offender was provoked in a way not amounting to a defence of provocation;
• The offender acted to any extent in self-defence;
• A belief by the offender that the murder was an act of mercy;
• The age of the offender.

In R v Kelly [2011] EWCA Crim 1462 Lord Judge CJ said: "These lists do not create impenetrable compartments and every case will be subject to its own specific and individual features of mitigation and aggravation."

In R v Davies [2008] EWCA Crim 1055, the Court stated that, when deciding whether aggravating features exist to increase the appropriate starting point for the minimum term of a mandatory life sentence, the judge should apply the same standard of proof as that applied by a jury in reaching its verdict. The distinction between the factors that call for a 30-year starting point and those that call for a 15 year starting point are no less significant than that which has to be considered by a jury when distinguishing between alternative offences, and it would be anomalous if the same standard of proof did not apply in each case.

In R v Bristol [2012] EWCA Crim 1684 ; [2013] 1 Cr.App.R.(S.) 81 and R v Thomas [2009] EWCA Crim 904 ; [2010] 1 Cr.App.R.(S.) 14 it was made clear that a background of domestic abuse is an aggravating factor when it comes to setting the minimum term and it is not necessary that it should be the subject of a separate charge and conviction: R v Wilson [2018] EWCA Crim 1352; [2018] 2 Cr.App.R.(S.) 25.

The court can take into account any previous convictions, whether the offence has been committed on bail and if the offender has pleaded guilty (para. 11).

The court should take into account any period the offender has spent on remand in connection with the offence or a related offence. The offender will get no credit for time served on remand, and therefore it must be taken into account when setting the minimum term. The court should normally subtract the time for which the offender was remanded from the punitive period it would otherwise impose in order to reach the minimum term.

Appropriate credit should be given for a guilty plea  (see the Sentencing Council’s Reduction in Sentence for a Guilty Plea guideline); in relation to whole life terms, the court should consider the fact that the defendant has pleaded guilty to murder when deciding whether it is appropriate to make such an order

The Attorney General’s Guidelines on the Acceptance of Pleas and the Prosecutor's Role in the Sentencing Exercise states at paragraph B4 that“the prosecution advocate represents the public interest, and should be ready to assist the court to reach its decision as to the appropriate sentence. This will include drawing the court’s attention to:

• any victim personal statement or other information available to the prosecution advocate as to the impact of the offence on the victim
• where appropriate, to any evidence of the impact of the offending on a community
• any statutory provisions relevant to the offender and the offences under consideration
• any relevant sentencing guidelines and guideline cases
• the aggravating and mitigating factors of the offence under consideration

It is the prosecuting advocate's duty to point out errors of law, such as, in these circumstances, if the court were to fail to give its reasons for departing from the starting point. The prosecuting advocate will need to be alive to the possibility that the minimum term may be unduly lenient, and be in a position to provide urgent advice.

Manslaughter Sentencing

The Sentencing Council Manslaughter Guidelines effective from 1 November 2018. They have a focus on culpability and they identify high, medium, and lower culpability factors. There is no such identification of Harm factors and the explanation provided is that the harm caused for all cases of manslaughter will inevitably be of the utmost seriousness. The loss of life is taken into account in the sentencing levels at step two.

Step two Starting Points for the highest culpability can be compared

• Gross negligence manslaughter - 12 years' custody
• Loss of Control - 14 years' custody
• Unlawful Act Manslaughter - 18 years' custody
• Diminished responsibility - 24 years' custody

The difference in starting points for diminished responsibility and loss of control is such that prosecutors must carefully analyse the facts of an offence to be clear as to the type of manslaughter to accept on a plea or to prosecute. The guidelines advise that the type of manslaughter (and thereby the appropriate guideline) should have been identified prior to sentence. If there is any dispute or uncertainty about the type of manslaughter that applies the judge should give clear reasons for the basis of sentence.

The Court of Appeal has emphasised the prosecutors duty to assist the court (in R v Clinton and others [2012] EWCA Crim 2, at para. 105 and at para. 82 of R v Rejmanski (Bartosz) [2017] EWCA Crim 2061). 

Prosecutors must have regard to the Sentencing children and young people: Definitive guideline effective from June 2017 in relevant cases.

Manslaughter is a serious specified offence for the purposes of sections 306 and 307 (life sentences for serious offences) of the SA 2020 (which applies to all convictions on or after 1 December 2021). It is an offence listed in Part 1 of Schedule 15 for the purposes of sections 273 and 283 of the SA 2020 (life sentence for a second listed offence) and sections 226-268 and 279- 280 of the SA 2020 and (extended sentence for certain violent or sexual offences) of the SA 2020. See Sentencing Dangerous Offenders legal guidance.

Section 63 of the SA 2020 requires the assessment of the seriousness of any offence to address the offender's culpability and the harm caused. The extent of culpability in manslaughter varies enormously although harm is always at the highest level.

R v Appleby [2009] EWCA Crim 2693 sets out the approach to sentencing for unlawful act manslaughter. The public impact of violence on the streets is more of a concern since the case of R v Coleman (Anthony Neville) (1992) 95 Cr. App. R. 159 was decided and is a significant aggravating feature. Coleman focused on the actions of the defendant and his intentions at the time of the crime rather than on the crime's consequences. That approach to sentencing is no longer appropriate. Following section 63 of the SA 2020 specific attention should be paid to the consequences of the crime. Crimes which result in death should be treated more seriously. The description "one-punch manslaughter" should be confined to cases where death resulted from a single blow with a bare hand or fist.

The guidance in the SA 2020 Sch. 21 on the appropriate minimum term to be served when a life sentence is passed for murder should also be referred to in manslaughter cases - R v Wood (Clive) [2009] EWCA Crim 651. However, an important difference is that a minimum term for murder represents the time served in prison in actual years, whereas time served on a determinate basis is generally half the number of years specified by the court.

R v Williams (Clayton) [2017] EWCA Crim 305 - the principle established in cases of diminished responsibility manslaughter, that it is proper for the sentencing judge to take into account levels of sentence for murder, is also applicable to offences of manslaughter arising out of the deliberate use of a motor vehicle. In the spectrum of driving offences involving death, manslaughter is below murder but above causing death by dangerous driving in terms of culpability.

R v Jenkin [2014] EWCA Crim 1394 - The court accepted that whilst a nuanced approach had to be taken to Schedule 21 of the SA 2020 (consideration of aggravating and mitigating factors) when sentencing in cases of diminished responsibility, the approach also had to reflect the extent of the offender's residual culpability. The greater it is, the greater the impact of the schedule 21 factors. This will ensure that the court achieves a just correlation between the sentence for murder and the sentence for manslaughter.

R v Maling [2016] EWCA Crim 1740 - if a killing resulted from a campaign of domestic violence that is a seriously aggravating feature that has to be properly reflected in the sentence imposed

R v Edwards [2018] EWCA Crim 595 - The court summarised the general principles to be considered by those representing and those sentencing offenders with mental health problems that might justify a s.37 hospital order, s.41 order, a finding of dangerousness and/or a s.45A order (under the Mental Health Act 1983 ["MHA 1983"]).

R v Vowles [2015] EWCA Crim 45 - The court gave guidance on the approach to be taken in sentencing offenders suffering from mental disorder who had received indeterminate sentences of imprisonment specifying a minimum term so as to strike an appropriate balance between ensuring treatment in a hospital and protecting the public. A judge should not feel circumscribed by psychiatric opinion, and the fact that two psychiatrists supported a s.37/41 MHA 1983 order was never, alone, a reason to make one (paras 51-53).

Familial Deaths and Serious Physical Harm

Section 5 of the Domestic Violence, Crime and Victims Act 2004 ("DVCVA 2004") was amended in July 2012 to extend the offence to include allowing a child or vulnerable adult to suffer serious physical harm (in addition to death). It is indictable only in the case of both death and serious harm. Where the child or vulnerable adult suffers serious physical harm, the maximum penalty is 10 years' imprisonment (14 years where death occurs).

Section 5 creates a substantive offence that can be charged alone and can apply where a lack of evidence exists to prove which of a limited number of suspects caused V's death. The offence requires proof that:

• A child or vulnerable adult died or suffered serious physical harm;
• his was the result of an unlawful act, course of conduct or omission of a person who was a member of the same household as V and who had frequent contact with V;
• there existed at the time of death or serious physical harm, a significant risk of serious physical harm being caused to V by the unlawful act of any member of that household and
• either, D was the person whose unlawful act caused Vs death; or 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
• the death occurred in circumstances of the kind that D foresaw or ought to have foreseen.

D is equally liable to conviction whether he or she was the perpetrator of the act that actually caused V's death or serious physical harm 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.

Note: 'significant risk' does not mean 'more than minimal' but carries its ordinary meaning: R v Mujuru (2007) EWCA Crim 1249. In every case the prosecution must prove that V's death or serious physical harm occurred in circumstances of the kind that D foresaw or ought to have foreseen. Section 5(6) of the DVCVA 2004 confirms that in this context 'serious' harm is to be equated grievous bodily harm. The risk that must be foreseen relates to that level of harm and the risk itself must be significant rather than minimal or fanciful. The section also contains definitions of the terms "child" and "vulnerable adult" amongst others. The definition applied to vulnerable witnesses is wider than that applied to the same phrase in the Youth Justice and Criminal Evidence Act 1999.

See R v Ikram [2008] EWCA Crim 586 for an analysis of the offence.

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.

Relevant Home Office and Ministry of Justice Circulars are attached for further information:

Home Office Circular 9/2005 Domestic Violence Crime and Victims Act 2004

MoJ Circular 2012/03 Domestic Violence, Crime and Victims (Amendment) Act 2012

Potential Range of the Offence

A victim of domestic violence in the household can be a vulnerable adult as defined in s.5(6) of the DVCVA 2004. In R v Uzma Khan, Nazia Naureen, Majid Hussain [2009] EWCA Crim 2 members of the same household were convicted of allowing the killing of a domestic violence victim because they failed to take the steps which could reasonably have been expected to prevent the husband from again beating the wife so severely.

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 DVCVA 2004. 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.

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 babysitters over 16, and those who provide domiciliary care in the household such as child minders and paid carers.

In many cases the evidence is likely to 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 have been caused by someone other than a member of V's household.

What Amounts to Reasonable Steps

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.

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 or her ability to act reasonably in protection of the eventual victim.

For further information on the issue of 'reasonable steps' in cases where the suspect alleges they are the victim of domestic violence, please see the Ministry of Justice Circular 2012/03 Domestic Violence, Crime and Victims (Amendment) Act 2012.