English law contains homicide offences – those acts involving the death of another person. For a crime to be considered homicide, it must take place after the victim’s legally recognised birth, and before their legal death. There is also the usually uncontroversial requirement that the victim be under the “Queen’s peace“. The death must be causally linked to the actions of the defendant. Since the abolition of the year and a day rule, there is no maximum time period between any act being committed and the victim’s death, so long as the former caused the latter.
There are two general types of homicide, murder and manslaughter. Murder requires an intention to kill or an intention to commit grievous bodily harm. If this intention is present but there are certain types of mitigating factors – loss of control, diminished responsibility, or pursuance of a suicide pact– then this is voluntary manslaughter. There are two types of involuntary manslaughter. Firstly, it may be “constructive” or “unlawful act” manslaugher, where a lesser but inherently criminal and dangerous act has caused the death. Alternatively, manslaughter may be caused by gross negligence, where the defendant has broken a duty of care over the victim, where that breach has led to the death, and is sufficiently gross as to warrant criminalisation.
Death is an irremediable harm that is dealt with particularly seriously in English law. For example, the crime of murder uniquely carries a mandatory sentence of life imprisonment, regardless of the degree to which the defendant is morally culpable provided they are legally culpable. To use another example: causing injury by dangerous driving carries a maximum sentence of two years, whereas causing death by dangerous driving carries one of fourteen years.
All homicides involve three elements as a defining feature: firstly, that the victim must be a legally defined “human being”; that their death must be caused by the act or omission of one or more human beings; and that this must occur within the “Queen’s peace“, which relates to jurisdiction.
A fetus, even at a late stage of pregnancy, is not protected by the law of homicide due to abortion rights in the United Kingdom. (rather, other offences have been created to prevent the proscribed harm[nb 1]). To qualify, the victim must have an “independent existence”. This was confirmed in 1998 in Attorney General’s Reference (No. 3 of 1994),[c 1] even where the foetus is viable and could have survived if born before the offence was committed. The confused rationale appears to match the complicated moral and biological distinction on which it is based; there is huge social significance placed upon birth and thus the law is unlikely to change –Article 2 of the European Convention on Human Rights has not yet been interpreted to conflict with the English law. Instead, in Vo v France, the European Court of Human Rights ruled that most definitions were within the margin of appreciation set aside to national law. The death of a child after birth from injuries sustained before birth would only constitute murder if the requisite intent – that the child would die after birth – was present. Other forms of homicide would also be applicable.
There is no legislation that defines when death has occurred. However, in Airedale NHS Trust v Bland,[c 2] cessation of brain stem function, one form of brain death, was considered the definition by the House of Lords. Much medical law – for example, that conferring the right to remove organs for transplant – is predicated on this decision and it is unlikely to be overturned. The Criminal Law Revision Committee has declined to propose a legal definition, for fear of the wide impact that it could have on disparate branches of the law, and the changing basis in medical science. In Bland, a person in a persistent vegetative state was considered to be alive; accordingly, anything less than brain stem cessation is unlikely to be sufficient for death.