11. Homicide

The actus reus of murder is the unlawful killing of a reasonable creature in being. That creature may be sane or insane. A child under seven is not a person of sound memory and discretion, and so is not a murderer. When a child is injured in the womb and dies after being born alive, the killing can still be homicide. "Unlawfully" excludes a killing that is justified, such as killing in lawful self-defence.

Malice aforethought is the mens rea. It is the intention to kill or the intention to cause grievous bodily harm, in the direct or oblique sense already stated. Constructive malice, the old felony-murder rule, is not the modern test. The mental element is the line from Moloney to Woollin.

Provocation reduces murder to voluntary manslaughter where the accused had the mental element of murder but lost self-control. Three things must be proved. There was provocative conduct. The accused in fact lost self-control. A reasonable person, with the accused's characteristics but with ordinary powers of self-control, would have done as he did.

The loss must be sudden and temporary, and it must be a loss of temper. Duffy is the sudden-and-temporary requirement. Cocker suffocated his wife after she begged him to end a terminal illness. He had not lost his temper. He had listened to her. The verdict stayed at murder. A cooling-off period points the same way. Ibrams is the name given to that limit. The provocation was, on the older view, something done by the dead person to the accused. The English Homicide Act 1957 removed that limit. Davies allows the acts of a wife's lover to be taken into account on a charge of killing the wife. Self-induced provocation does not automatically bar the defence. Johnson threatened violence, a fight developed, and he stabbed. Murder was reduced to manslaughter. The provocation must still be extreme when set against what the accused himself started.

Bedder excluded evidence that the accused was impotent. That is no longer the English law. Camplin requires the jury to take the accused's characteristics into account, while the power of self-control remains that of an ordinary person. Acott is the House of Lords on the division of work. If there is evidence that the accused lost self-control, it is for the jury whether the provocation was enough to make a reasonable person do as he did. A confession of adultery, without more, is not sufficient provocation. Holmes confines that old rule to a lawful husband and wife.

Involuntary manslaughter is a killing without malice aforethought. Constructive manslaughter is a killing by an unlawful act of a dangerous character. Larkin waved a razor to frighten a man. His mistress, who was drunk, moved against the razor and was killed. He did not intend to kill her. An unlawful and dangerous act causing death was manslaughter. Church approves that test. The act is dangerous if a sober and reasonable person would recognise the danger, in the light of the circumstances known to the accused and of any further circumstances that person would have known. Newbury and Jones is the paving stone pushed from a bridge onto a train. The test is objective. It is not whether these accused recognised the danger. The act must be unlawful in itself. Franklin threw a box from Brighton pier and killed a swimmer. A mere civil wrong is not enough to build a manslaughter charge. Lamb pointed a revolver in jest. Neither he nor his friend understood the mechanism. There was no assault, because there was no intent to injure or to alarm, and the manslaughter conviction was quashed. Mitchell applies the idea to a push in a queue that brings about a later death.

Gross-negligence manslaughter is the other form. Adomako, an anaesthetist, failed to notice that a tube had become disconnected. The patient died. Liability requires a duty of care, a breach, a risk of death, and negligence that the jury finds to be gross. Caldwell recklessness is not a separate form of manslaughter. Stone and Dobinson, already met as an omissions case, is gross negligence in the failure to care for someone who had been taken in. Andrews v DPP is the driving case on the same idea: the negligence must be criminal, not a mere departure from civil care.