Homicide: Murder, manslaughter, infanticide and causing or allowing the death or serious injury of a child or vulnerable adult

• Introduction
• CPS Guidance
• Murder
• Manslaughter
• Voluntary manslaughter and partial defences to murder
• Diminished Responsibility
• Loss of Control
• Suicide Pact
• Involuntary Manslaughter
• Alternative Counts, Verdicts and Pleas
• Charging murder or manslaughter in cases of suicide
• A year and a day
• Infanticide
• Suffocation of a child under three years of age
• The legal position, and procedural provisions, where murder or manslaughter also charged
• Public Interest
• Public Interest Factors Tending in Favour of or Against Prosecution
• Handling and Referral
• Selection of charges
• Bail
• Reports
• Coroner
• Murder Sentencing
• Manslaughter Sentencing

Introduction

This prosecution guidance:

• outlines the relevant law for homicide offences which prosecutors may charge
• gives guidance on adding an alternative count of manslaughter on an indictment alleging murder
• sets out the importance of considering murder or manslaughter in cases of suicide, in particular in a domestic abuse context
• gives guidance on how prosecutors should approach the procedural and evidential provisions where "causing or allowing offence the death of a child or vulnerable adult" is charged alongside murder and manslaughter
• gives guidance on how prosecutors should approach the public interest considerations when dealing with "mercy killings" and suicide pacts.

CPS Guidance

Other CPS guidance which might be of assistance includes:

• Guidance relating to other homicide offences: Road Traffic - Fatal Offences and Bad Driving, Corporate Manslaughter, Gross Negligence Manslaughter and Suicide - Encouraging or Assisting Policy, Non Accidental Head Injury Cases (NAHI, formerly referred to as Shaken Baby Syndrome [SBS]) - Prosecution Approach.
• Referral of Cases guidance.
• Secondary Liability: charging decisions on principals and accessories guidance in relevant cases.
• Bereaved Families - Guidance on CPS service to bereaved families in homicide cases and the National Standards of Support after acquittal.

Murder

Subject to three exceptions (which constitute partial defences to murder, and result in a conviction for manslaughter) the crime of murder is committed, where a person:

• of sound mind and discretion (sane)
• unlawfully kills (not self-defence or other justified killing)
• any reasonable creature (a human being)
• in being (born alive and breathing through its own lungs)
• under the King's Peace (not in wartime)
• with intent to kill or cause grievous bodily harm (in contrast to the offence of attempted murder, where only intent to kill will suffice)

Intent is an ordinary English word. It should not normally be elaborated on or paraphrased. It is different from motive and the prosecution does not have to prove motive, or that grievous bodily harm or death were the outcome wished for. For further consideration where intent might be an issue, see the Judicial College's Crown Court Compendium, Part 1, at 8-1.

The suspect's act must be a substantial cause of the death, not necessarily the sole or principal cause.

Self-defence is as much a defence to murder and manslaughter as to any other offence. Assessing whether there is a realistic prospect of conviction includes an objective assessment of the evidence including the likelihood of this defence being raised and of the prosecution disproving it to the criminal standard. Duress is not available as a defence to murder or attempted murder.

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

Manslaughter

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

Voluntary manslaughter and partial defences to murder

Where all of the elements to prove murder are present, including an intention to cause death or grievous bodily harm, a partial defence may be raised in three circumstances. Unlike a complete defence such as self-defence, these operate to reduce guilt for murder to guilt for manslaughter. They are: diminished responsibility, loss of control and killing in pursuance of a suicide pact.

Diminished Responsibility

The defendant must prove the following four elements:

1. 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 the defendant's ability either to understand the nature of their conduct or to form a rational judgment or to exercise self-control (or any combination)
4. if so, whether it provided an explanation for their conduct: section 2 Homicide Act 1957 as amended by section 52 Coroners and Justice Act 2009

For the relevant law and jury directions for diminished responsibility, see the Judicial College's Crown Court Compendium, Part I, at 19-2.

As the onus is on the defendant to establish diminished responsibility on the balance of probabilities, they are likely to need to obtain expert evidence in support. The prosecution will then review the case. In some cases it may not be necessary to obtain evidence from a further expert, because the defence expert evidence (on paper, or when challenged in cross-examination) is unlikely to substantiate the defence. More usually, the prosecution will need to obtain evidence from a further expert. As part of the ongoing duty of review, the prosecution will further review the case. In doing so, it should be borne in mind that the jury is not bound to accept medical evidence and that the evidence, especially when tested through cross-examination, may not meet the elements of diminished responsibility. See the prosecution guidance on Experts.

The judge must consider whether the defence of diminished responsibility should go to the jury. First, however, a prosecutor will review the case and make clear to the court and the defence whether it is the prosecution view that there is a realistic prospect of conviction for murder or not. If there is no realistic prospect of conviction, especially if the evidence is unequivocal and uncontradicted and has plainly met each element for diminished responsibility, then a plea of manslaughter should be accepted. If there remains a realistic prospect of conviction, in the course of that review the prosecution should establish whether in its view there is or is not sufficient evidence to go to the jury for the partial defence, and make submissions accordingly, inviting the judge to withdraw the defence in appropriate cases.

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 their responsibility for the killing – R v Dietschmann [2003] UKHL 10. See also: R v Joyce Kay (2017) EWCA Crim 647 and R v Wood [2008] EWCA Crim 1305.

Loss of Control

The loss of control defence has three components – see section 54(1)(a)(b)and (c) Coroners and Justice Act 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. If sufficient evidence is adduced to raise this defence, on which in the opinion of the trial judge a jury, properly directed, could reasonably apply, then the prosecution must disprove loss of control beyond reasonable doubt. For the relevant law and jury directions for loss of control, see the Judicial College's Crown Court Compendium, Part I, at 19-3.

For examples of where insufficient evidence of loss of control was raised, in respect of one or more of the elements required, and so the issue was not left to the jury, see R v Gurpinar (Mustafa) [2015] EWCA Crim 178, R v Dawes, Hatter and Bowyer [2013] EWCA Crim 322, and R v Christian [2018] EWCA Crim 1344.

Applying the objective test at section 54(1)(c) 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. Diminished responsibility remains however as a partial defence.

Self-induced intoxication is to be disregarded for the purposes of this partial defence. 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 will not be deprived of the loss of control defence simply because they were 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.

The prosecution 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 themselves 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 of the Homicide Act 1957). The defendant must satisfy the jury on the balance of probabilities that there was a suicide pact in existence, and if so, that the defendant at the time of the killing was acting in pursuance of it and had a settled intention of dying in pursuance of it.

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 primarily two types of involuntary manslaughter, that caused by an unlawful or dangerous act and that caused by gross negligence.

Unlawful Act Manslaughter

For the relevant law and jury directions for unlawful act manslaughter, see the Judicial College's Crown Court Compendium, Part I, at 19-5. The prosecution must prove an intentional act (not omission); that the intentional act is unlawful; that it is an act which all sober and reasonable people would inevitably realise must subject the victim to at least some risk of harm.

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 themselves 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.

Gross negligence manslaughter

For guidance on the referral of gross negligence manslaughter cases see the Referral of Cases to CPS Headquarters. See also separate guidance on Corporate Manslaughter.

For the relevant law and jury directions for gross negligence manslaughter, see the Judicial College's Crown Court Compendium at 19-4.

The elements of this offence were stated concisely by the President of the Queen's Bench Division in Rudling [2016] EWCA Crim 741 at paragraph 18 as follows: "the breach of an existing duty of care which it is reasonably foreseeable gives rise to a serious and obvious risk of death and does, in fact, cause death in circumstances where, having regard to the risk of death, the conduct of the defendant was so bad in all the circumstances as to amount to a criminal act or omission".

Alternative Counts, Verdicts and Pleas

Section 6 of the Criminal Law Act 1967 provides that, on an indictment for murder, a person found not guilty may, in the alternative, be found guilty of manslaughter. Prosecutors must therefore carefully consider the question of an alternative counts on the indictment when:

• A partial defence to murder is in issue; or
• Intention short of an intent to cause grievous bodily harm is in issue.

At the outset of a case, or at a later stage pre-trial, it may be apparent that the defendant's defence means that they are guilty at the least of manslaughter. An indictment may be preferred to allow the defendant to enter a plea to this offence, which may be acceptable to the prosecution, or if not, will ensure the issues for the jury are narrowed and a guilty plea is recorded in the event of acquittal for murder.

If a defendant pleads not guilty to murder but guilty to manslaughter without that appearing as a count on the indictment, that plea is a nullity if the prosecution does not accept it. The defendant cannot be sentenced for it in the event of acquittal on the count of murder. It should therefore, as suggested above, be put to the defendant on a two-count indictment; if the defendant pleads guilty to the second count of manslaughter, it is the first count on which the defendant can then be tried by a jury: Hazeltine [1967] 2 QB 857; Yeardley [2000] 2 WLR 366.

At trial, if a plea of manslaughter would not be acceptable, this alternative count need not appear on the indictment for the jury. The exception would be where the prosecution concludes there is a real (rather than a fanciful) prospect of the jury finding the defendant guilty of manslaughter, and if the jury were not sure of the defendant's guilt on the charge of murder, the prosecution, after a trial for murder, would accept a guilty verdict on the charge of manslaughter i.e. not seek a re-trial for murder. The addition of an alternative count in these circumstances is therefore simply an indication about the prosecution position should the jury not convict of murder. For the role and responsibilities of the judge in this regard, see R v Foster (Mark) [2007] EWCA Crim 2869.

The following are the consequences of adding or not adding an alternative of manslaughter when proceeding on the charge of murder:

• If the jury cannot reach a verdict on the murder count, but return a guilty verdict on the manslaughter count which has been added as an alternative, the prosecution will not usually seek a re-trial on the count of murder.
• If no alternative is included on the indictment, the prosecution must decide when the jury retires 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).
• 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: see R v JB [2013] EWCA Crim 356.

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. So long as this careful consideration is given to each case, it is plainly of public benefit for guilty pleas to manslaughter to be accepted. This avoids trials on non-issues which would be both expensive to the public and distressing to many of those involved, whether as witnesses, relatives of the deceased or as defendants and their families."

This amplifies the importance of only accepting pleas as an alternative to murder when it is proper to do so and also articulating the reasons why it is the right course of action in some cases to do so. Prosecutors must, as in every case, consider carefully the acceptability of pleas and must clearly apply section 9 of the Code for Crown Prosecutors and the Attorney General's Guidelines on the Acceptance of Pleas and the Prosecutor's Role in the Sentencing Exercise when reviewing the case.

Particular care is needed where allegations are made about the victim who cannot speak to them. All reasonable lines of enquiry, whether they point towards or away from the suspect, should be pursued where there is any claim that a defendant may be guilty of manslaughter but not murder, in order to determine whether or not there remains a realistic prospect of conviction for murder.

The CPS should discuss a proposal to accept a plea to manslaughter with the police and counsel. They should also explain the proposal to a victim’s family and seek their view in order to inform the decision if it is a public interest decision. However, the decision rests with the prosecutor.

Charging murder or manslaughter in cases of suicide

Murder or manslaughter may be the appropriate charge where suicide follows an unlawful act or acts by the suspect. This most obviously applies (but is not restricted to) a domestic abuse context; for instance, where a suspect has subjected the victim to controlling and coercive behaviour or ongoing violence. Early advice and engagement between police and prosecutor is essential where the police are considering such an investigation. This should cover coordination with the coroner, and identifying and obtaining all relevant information to understand the relationship history between suspect and the victim and what led the victim's state of mind in order to establish causation. Such material would include medical records and any digital material between the parties, in addition to third party accounts.

For cases where the suspect did an act with intent to kill or cause grievous bodily harm, and suicide then followed, murder may be the appropriate charge. Suicide will not necessarily break the chain of causation but the psychiatric injury caused by D's acts must have been an operating and significant cause of death. See: Dear [1996] 3 WLUK 208 and Wallace [2018] EWCA Crim 690.

For cases where the suspect acted so as to cause a recognisable psychiatric injury resulting in the victim's suicide, unlawful act manslaughter may be made out. See D [2006] EWCA Crim 1139 and R v Chan Fook [1994] 1 WLR 689. Evidence from a Home Office psychiatrist should be obtained to provide the psychiatric injury and prosecutors must carefully consider the extent of any pre-existing mental health conditions.

A year and a day

Attorney General's consent needs 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.

See the Consents to prosecute guidance, which includes the approval required for such applications.

In some 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 section 74(3) of the Police and Criminal Evidence Act 1984 ("PACE 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 to the defendant on the balance of probabilities to show they did not commit the offence for which they were previously convicted. Furthermore, an application to exclude this evidence pursuant to section 78 PACE 1984 may be made. However, such an application 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: see R v Clift, R v Harrison [2012] EWCA Crim 2750.

Infanticide

Where a woman causes the death of her biological child under the age of twelve months, but at the time the balance of her mind was disturbed because she had not fully recovered from the effect of giving birth or subsequent lactation, she may be guilty of infanticide and fall to be sentenced for manslaughter rather than murder: section 1 Infanticide Act 1938.

This offence can be charged even where the elements of murder are not made out as it covers situations wider than, for instance, where an intention to kill or cause grievous bodily harm is present, or it may be an alternative charge to murder: R v Gore [2007] EWCA Crim 2789 and R v Tunstill [2018] EWCA Crim 1696.

Suffocation of a child under three years of age

The offence of child cruelty created by section 1 of the Children and Young Persons Act 1933, which carries a penalty of up to 14 years' imprisonment, deems neglect to have occurred where:

• the death of an infant under three years of age was caused by suffocation
• that suffocation was not caused by disease or by the presence of any foreign body in the throat or air passage of the infant
• death was caused while the infant was in bed with another person aged 16 or over
• that other person was under the influence of drink or a prohibited drug at the time they went to bed

Death or serious injury to a child or vulnerable adult in a household

Section 5 ("the section 5 offence") of the Domestic Violence, Crime and Victims Act 2004 ("the 2004 Act") provides for an offence if a child or vulnerable adult dies or suffers serious injury and a member of their household caused the death of serious injury or allowed it to happen. The circular produced by the MOJ (with a Home Office cicular annexed) may assist in understanding the background to and interpretation of these provisions. The maximum sentence where death occurs is life imprisonment and 14 years' imprisonment where serious injury is caused.

The principles in this guidance apply to both death and serious injury and to a child or a vulnerable adult. However, in order to address most clearly the key considerations which arise, references henceforth will be to the situation where a "victim" dies without repeating the two types of victim and death/serious injury alternatives on each occasion. References to related offences of murder and manslaughter where death occurs apply equally, where serious injury occurs, to attempted murder, causing grievous bodily harm with intent to do so and inflicting grievous bodily harm. Although the 2004 Act identifies these offences as relevant where the section 5 offence is charged, prosecutors are not precluded from considering other charges. Depending on the circumstances of the case, these may include child cruelty, ill-treatment or neglect of a patient receiving treatment for a mental disorder or ill-treatment or neglect of a person who lacks capacity. Such charges may be appropriate to allow a jury to return verdicts to reflect earlier incidents of culpable behaviour, where these are background to the section 5 offence.

The section 5 offence is to be charged, in particular, where:

• A suspect's culpability lies not in having caused the death – the evidence suggests that plainly another suspect killed the victim – but in the fact that they allowed the death to occur; or
• There is more than one suspect in the household who killed the victim but it cannot be said which.

Suspects who allow a death or serious injury to occur

It must be proved that:

• the suspect is aged 16 or over, or is a parent of the victim;
• the victim was a child or vulnerable adult;
• the victim died or suffered serious physical harm;
• this was the result of an unlawful act (i.e. not an accident or natural cause);
• the unlawful act must have been committed by a person who was a member of the same household as the victim;
• the unlawful act must have been committed by a person who had frequent contact with the victim;
• the suspect was also a member of the same household as the victim;
• the suspect also had frequent contact with the victim;
• there existed at the time of death or serious physical harm, a significant risk of serious physical harm being caused to victim by the unlawful act of any member of that household; and
• either, the suspect was the person whose unlawful act caused Vs death;
• or, the suspect was, or ought to have been, aware of that risk and failed to take such steps as they could reasonably have been expected to take to protect the victim from that risk of serious physical harm; and
• the death occurred in circumstances of the kind that D foresaw or ought to have foreseen.

For interpretation of these elements, see:

• section 5(6) the 2004 Act ("act", "child", "serious" and "vulnerable adult")
• Lawrence [2017] EWCA Crim 2701 (application of the ordinary English meaning of words)
• R v Mujuru (2007) EWCA Crim 1249 (application of the ordinary meaning of "significant risk", which is not "more than minimal")
• Khan and others [2009] EWCA Crim 2 (which addresses several elements of the offence, including who may fall within the definition of "vulnerable adult", for which see also Uddin [2017] EWCA Crim 1072)
• R v ATT [2024] EWCA Crim 460 (a significant risk of serious physical harm has to exist prior to, and independently of, the event which does in fact cause serious physical harm to the victim)

The offence is not restricted to parents, and siblings aged 16 or over, but to others who join the household, including new partners, other family members, domiciliary carers or au pairs. It is unlikely to extend to care homes or nurseries. The elements of the offence involve careful fact-sensitive analysis. This includes reasonableness in the light of the suspect's circumstances, intellectual and emotional capabilities and their ability to make independent decisions and choices.

Foresight of the risk of serious physical harm may either be addressed by asking "what did this particular suspect foresee?" or "what ought this particular suspect to have foreseen?" This involves an assessment of foresight by a person with the suspect's characteristics and capabilities and the inferences to be drawn about what they knew about risk. Risk of serious harm and foresight of it may most often be demonstrated by previous incidents of violence and the suspect's awareness that they had occurred.

More than one suspect

Where there is more than one suspect, and all the suspects are in the same household as the victim, then the section 5 offence may be charged. Section 5(2) provides that the prosecution does not have to prove whether any one suspect caused the death or failed to take steps or prevent it.

Nonetheless, by the close of all of the evidence in the case, the prosecution should be clear about the basis on which the case is put against each suspect. If convicted, the judge must be sure of the basis on which sentence is to be passed. Prosecution submissions at sentence will be informed by the basis on which the jury was asked to convict each defendant. It may or may not be possible after all of the evidence has been heard to invite conviction for one defendant on the basis that they caused the death (the jury may nonetheless convict on the basis of allowing) and the remaining suspects on the basis of allowing.

The legal position, and procedural provisions, where murder or manslaughter also charged

In a case where there is more than one such suspect and the section 5 offence is charged, it may in addition be appropriate to charge the suspects with murder or manslaughter.

Several authorities have considered the situation where it is clear that a member of a household killed the victim, but it is not clear which one. In such cases, unless the suspects were acting as part of a joint enterprise, the ordinary principles of criminal liability require an acquittal on charges of murder or manslaughter. See, for instance Lane and Lane (1986) 82 Cr App R 5 CA.

This legal position means that, procedurally, a judge would be obliged to accede to an application to dismiss or a submission of no case to answer at the close of the prosecution case. There would be insufficient evidence on which a jury could be sure that any single one defendant killed the victim. A jury would have to have a reasonable doubt that it could have been one or more of the co-defendants.

The legal position remains: there is no case to answer (nor could a jury properly convict) for the offences of murder or manslaughter where the prosecution cannot prove who killed the victim.

However, different and important procedural and evidential provisions are introduced by section 6 and 6A of the Act which are relevant where murder or manslaughter may be charged along with the section 5 offence:

• No application to dismiss may be made on a charge of murder or manslaughter, unless the section 5 offence is also dismissed.
• A submission of no case to answer may only be made at the close of all of the evidence, not at the close of the prosecution case.

Where there is sufficient evidence for the court to consider the section 5 offence, the court will proceed to hear any evidence the defendants give, or do not give. That evidence is relevant to evaluating the charge of murder or manslaughter as well. Whereas such charges would be met with an application to dismiss or a submission of no case to answer, that determination is now postponed to the end of all of the evidence. As the court in Ikram and Parveen [2008] EWCA Crim 586 noted: "the object was to improve the prospect of discovering the truth which was almost certainly known by both or all the defendants, but which so frequently remained concealed on forensic grounds."

Evidential provision where murder or manslaughter also charged

On the point of what evidence the defendants give, or do not give, a further evidential provision is important: where the defendant has not given evidence, or refuses to answer a question (see section 35 Criminal Justice and Public Order Act 1994 ("the 1994 Act")), the court may draw such inferences as appear proper in deciding whether there is a case to answer. This is another consequence of the fact that the decision on there being a case to answer is made at the close of all of the evidence, when it is known whether or not the defendant has given evidence, and not at the close of the prosecution case when this cannot be known let alone taken into account.

Further, the case may proceed to the jury based on proper inferences drawn from silence even if there would otherwise be no case for the defendant to answer.

Responsibilities of the prosecutor: charging, and at the close of the case

The prosecution has important decision-making responsibilities in these cases.

The first important responsibility is in deciding whether or not to charge murder or manslaughter. Where the evidence suggests that at the most, a suspect could only have failed to take reasonable steps to prevent the death, only the section 5 charge is appropriate. Where, however, there is evidence that the suspect could have killed the victim, a decision in accordance with the Code for Crown Prosecutors will include an objective assessment of the evidence including situations where the suspect may give evidence or not. It includes considering any defence or information the suspect has put forward, including the likely testing of that account in cross-examination by both the prosecution and any co-accused if the suspect gives evidence; and the strength of the case if the suspect did not give evidence and the proper inferences to be drawn from this.

This is necessarily a more uncertain and complicated exercise. It is required because the procedural and evidential provisions mean that the decision to charge cannot take place on the basis of the suspect's likely acquittal at the close of the prosecution case. It should not be a speculative exercise. A defendant's evidence may of course theoretically take many forms. Prosecutors only need to take into account real possibilities as to the form it might take, rather than fanciful ones. This means considering each scenario on the information available at charge. Both, that the suspect may not give evidence at all, or that they give evidence in accordance with any account or other available information suggesting the nature of their defence. In the former scenario, considering what inferences appear proper to draw; in the latter, the likely challenges, strengths and weaknesses of this account.

It does not follow therefore that murder or manslaughter should be charged whenever a section 5 offence is charged. Rather, the assessment of whether or not there is a realistic prospect of conviction must take into account the different procedural and evidential provisions in section 6 or 6A.

If the prosecutor concludes that there is a realistic prospect of conviction for a suspect for killing the victim, that is not negated by a conclusion that there is a realistic prospect of conviction in respect of another suspect. The case against each individual suspect must be considered on its own facts and merits as part of an overall case strategy which seeks to anticipate how the case will develop and the prosecution response to that.

Best practice is to charge both murder and manslaughter in addition to the section 5 offence. This must always be subject to the evidence in the particular case. However, the evidence tending in favour of either charge, especially that relevant to intent, is particularly likely to come from the defendants in their evidence.

The second important responsibility is in making submissions at the close of all of the evidence as to the case which should go to the jury. It is at this stage that the prosecution must be clear, necessarily based on any defendant evidence which has just been given or not given, as to whom the jury should be asked to convict for murder or manslaughter. In Ikram (above), the prosecution indicated prior to submissions of no case to answer that it proposed that murder and manslaughter be withdrawn against one of the defendants. The Court of Appeal endorsed the approach of the prosecution in so doing (and noted that the trial judge who had heard the evidence agreed):

"On the whole of the evidence, including that of both defendants, the prosecution reflected whether there was a case for either defendant to answer. Once it concluded that the case should be withdrawn against one or other defendant, it was obliged to say so. This was not an abuse of process. Rather it was the process working as it should, with the prosecution acting responsibly in its venerable and still contemporaneously valid role as a minister of justice."

Where a defendant has not given evidence, or has refused to answer certain questions, it remains important to ask what inferences may properly be drawn from this and to consider them as part of the evidence as a whole. This is so, notwithstanding that the 2004 Act provides that there may be a case to answer where inferences can be drawn from silence where otherwise there would not be. In reality, when this question arises at the close of all of the evidence, there will be other evidence available. That should not preclude significant and substantial weight being placed on the defendant's silence. However, the evidential context into which this is placed should be clearly articulated by the prosecution. Proper inferences from silence rely on the case being of a nature where difficult questions about why a defendant has not given evidence should be considered by the jury: see Quinn [2017] EWCA Crim 1071.

The test to be applied by the prosecution, as it is throughout and subject to continuing review, is whether there is a realistic prospect of conviction. The lower test, of whether there is a case to answer, remains important at the close of all of the evidence. If a defendant is entitled to be acquitted in line with authorities such as Lane and Lane then there cannot be a realistic prospect of conviction. However, even if there could be a case to answer, the question of a realistic prospect of conviction must be addressed by prosecutors at this stage. This is so, in any case: it is most acute in section 5 cases because of the evidential and procedural provisions which apply uniquely to them.

Public Interest

The public interest in prosecuting homicide cases is very high. The harm and culpability will inevitably be of the utmost seriousness. The seriousness of the offences is reflected in the maximum sentences available:

• murder – mandatory life sentence with the offender ordered to serve a minimum term
• manslaughter – sentences up to a maximum of life imprisonment
• encouraging or assisting suicide – sentences up to a maximum of 14 years' imprisonment

It follows that a prosecution for murder, in particular, but also manslaughter, is almost certainly required in the public interest. However, it has never been the rule that a prosecution will automatically follow where the evidential stage of the Full Code Test is satisfied.

This public interest guidance addresses cases of murder and manslaughter. Separate guidance applies in relation to encouraging or assisting suicide. This guidance provides a framework for considering decision-making in relation to the public interest further where:

• the case concerns a mercy killing and the charge is murder
• the case concerns an attempted mercy killing and the charge is attempted murder
• the case concerns a failed suicide pact (in the context of a mercy killing), which is a partial defence reducing the offence of murder to one of manslaughter.

'Mercy killings' and suicide pacts in the context of 'mercy killings'

There is no definition of 'mercy killing' in statute or common law. An offender who takes the life or attempts to take the life of a victim may act on the wishes of the victim and may act out of mercy, but this does not provide a defence in law.

It is murder for a person to do an act that ends the life of another, intending to kill them, even if they do so on the basis that they are simply complying with the wishes of the other person concerned. So, for example, if a victim attempts to commit suicide but succeeds only in making themself unconscious, a person commits murder if they then do an act that causes the death of the victim, even if they believe that they are simply carrying out the victim's express wish.

Section 4(3) of the Homicide Act 1957 defines a suicide pact as a common agreement between two or more persons having for its object the death of all of them, whether or not each is to take their own life; nothing done by a person who enters into a suicide pact shall be treated as done by them in pursuance of the pact unless it is done while they have the settled intention of dying in pursuance of the pact. A person, acting in pursuance of a suicide pact between them 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.

Application of the Public Interest Stage to 'mercy killings' and suicide pacts in the context of 'mercy killings'

This section sets out the relevant public interest factors that should be considered when reviewing cases where there is evidence of a 'mercy killing' or a suicide pact in the context of 'mercy killing'.

The circumstances of the death and the state of mind of the victim and suspect are relevant in assessing the public interest factors below. Prosecutors and investigators should make sure that they pursue all reasonable lines of enquiry in order to obtain, wherever possible, independent verification of the suspect's account. This information may come from a variety of sources including family or friends of the victim or health care professionals who cared for the victim.

Prosecutors must consider the factors objectively and assess the credibility and reliability of any account provided. They may consider if there is other evidence supporting, or tending against, a suspect's account. An absence of evidence to support a suspect's account may be relevant or highly relevant to the weight to be attached to it. It may be relevant for prosecutors to consider whether the evidence to support certain factors is sufficiently close in time to the suspect's act to allow an inference that the factors remained operative at that time.

Each case must be considered on its own facts and on its own merits. Prosecutors must decide the importance of each public interest factor in the circumstances of each case and go on to make an overall assessment.

Public Interest Factors Tending in Favour of or Against Prosecution

The following public interest factors are not exhaustive. Prosecutors should evaluate the factors below in accordance with the guidance in the Code for Crown Prosecutors.

Assessing the public interest is not simply a matter of adding up the number of factors on each side and seeing which side has the greater number. It is not an arithmetical exercise. Where a factor does not apply, that does not mean that its absence has the opposite effect. It is quite possible that one factor alone may outweigh several other factors which tend in the opposite direction. The absence of a factor does not necessarily mean that it should be taken as a factor tending in the opposite direction. Nor do these factors operate in a vacuum: as set out above, the starting point is that a prosecution is almost certainly required in the public interest because the suspect has culpably taken the life of another.

In particular, a prosecution is likely to be required if any of the following factors are present:

1. The victim was under 18 years of age;
2. The victim did not have the capacity (as defined by the Mental Capacity Act 2005) to reach an informed decision to request another to end their life;
3. There is no evidence or information to indicate that the victim had reached a voluntary, clear, settled and informed decision that they wished for their life to end. This includes cases where the evidence or information suggest the decision had not been independently reached by the victim and might have been influenced by pressure, control or coercion by the suspect or anyone else. It includes an assessment of the mental health and any other vulnerabilities of the victim as this may impact on their ability to reach such a decision. Victims with a condition that causes their mental health to fluctuate are less likely to be able to reach a settled decision;
4. The victim was physically able to undertake the act to end their own life;
5. The victim had not clearly and unequivocally communicated their decision that they wished for their life to end. The decision must be communicated to the suspect, but prosecutors should consider whether it is capable of independent verification, for example was it was communicated to others such as family members, friends or health care professionals.
6. The suspect was not wholly motivated by compassion; for example, the suspect was motivated by the prospect that they or a person closely connected to them stood to gain in some way from the death of the victim;
7. The suspect pressured, coerced or controlled the victim to make the decision or did not take reasonable steps to ensure that any other person had not pressured, coerced or controlled the victim. Vulnerable victims may be more susceptible to being unduly influenced to view themselves as a burden;
8. The suspect has a history of violence or abuse against the victim. This includes any history of the suspect controlling or coercing the victim during their relationship. See the legal guidance on controlling and coercive behaviour for further guidance;
9. The suspect was unknown to the victim;
10. The suspect was motivated by a financial or other reward/benefit for their actions;
11. The suspect deliberately used excessive violence or force causing unnecessary or prolonged suffering;
12. The suspect was acting in their capacity as a medical doctor, nurse, or other healthcare professional and the victim was in their care.
13. The suspect influenced the victim not to seek medical treatment, palliative care and/or independent professional advice or denied access to such treatment, care and/or professional support.

A prosecution is less likely to be required if:

1. The victim had reached a voluntary, clear, settled and informed decision that they wished for their life to end.
2. They must have the freedom and capacity to make such a decision. This decision must have been made sufficiently close in time to their death and independently reached by the victim and not influenced by pressure, control or coercion by the suspect or anyone else. This requires thorough scrutiny and critical examination of the suspect's account, on its own and when placed in the context of the evidence as a whole. Prosecutors should consider what access the victim had to health care professionals including discussions about treatment and support options.
3. The suspect was motivated by compassion alone and only in circumstances where the preceding factor is present;
4. The victim was physically unable to undertake the act to end their own life;
5. The actions of the suspect may be characterised as reluctant, in the face of significant emotional pressure due to the victim's wish for their life to end. Prosecutors should consider whether this is capable of independent verification by others;
6. The suspect made a genuine attempt to take their own life at the same time;
7. The suspect reported the death to the police and fully assisted them in their enquiries into the circumstances and their part in it.

Prosecutors should then take a step back and look at the case in the round. In particular, even if there are public interest factors tending against prosecution in a particular case, prosecutors should consider whether nonetheless a prosecution should go ahead and those factors put to the court for consideration when sentence is passed. Schedule 21 paragraph 10(f) of the Sentencing Act 2020 recognises that an offender's belief that "the murder was an act of mercy" is a mitigating factor to be taken into account when deciding the appropriate minimum term when sentencing for murder.

Prosecutors should ask whether the weight to be attached to the factors tending against prosecution quite clearly outweigh not only any factors tending in favour of prosecution but also the expectation that a prosecution would almost certainly be required in the public interest. Only if they clearly outweigh the countervailing factors would it be appropriate not to prosecute on public interest grounds; otherwise, the considerations will potentially be relevant to the acceptance of pleas and sentence.

Handling and Referral

Authority to charge or NFA must be given by the Chief Crown Prosecutor (personally) in a 'mercy killing' (including by suicide pact) case. A Director of Legal Services must approve this decision before it is communicated. The CPS will record, for publication on an annual basis, the number of decisions made in respect of this part of the guidance.

Selection of charges

Causing or allowing the death of a child or vulnerable adult should not be charged instead of murder or manslaughter, where there is sufficient evidence to prosecute murder or manslaughter. As above, the causing or allowing offence may course be charged in addition to murder or manslaughter.

Where there is other offending in addition to murder, prosecutors should consider whether additional charges are merited, notwithstanding that conviction for murder will result in a life sentence. Additional charges may be merited as part of presenting the case, for instance. They may serve to focus the jury on making findings of fact in relation to events prior to the murder. Additional charges may reflect important aggravating features of the case which fall to be considered by the judge in setting the minimum term. They may be relevant if the defendant is to be released on licence, for instance, if they demonstrate a risk of future sexual offending.

This is important when a plea to murder is offered as well. Notwithstanding that the defendant will fall to receive a life sentence, if the plea offered would materially affect the sentence or the defendant's release on licence, it should normally be rejected. Rape counts should be left to lie on file only in exceptional circumstances: see the guidance Rape Counts, linked to Murder, Left to Lie on File. The principles which underpin this guidance are relevant to other offences charged along with murder.

Bail

See the Bail guidance for specific considerations relating to murder and manslaughter.

Reports

A pathologist's statement covering the cause of death should be available at the earliest stage of a prosecution. 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. The timescales for this may be longer if the case presents a particular complexity, such as neurological analysis in a head injury case. Pathologists will generally complete their final report once all other studies have been completed, e.g. histology, toxicology etc.

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.

Preparation of Exhibits for trial

Only photographs and other exhibits which are strictly necessary for the presentation of the case should be prepared by the police. Prosecutors should take special care when instructing the investigating officer to avoid distress for the jury and for the relatives.

Meeting with victims' families

Prosecutors will offer to meet bereaved relatives and partners in homicide cases at important stages of the criminal justice process to explain the anticipated progress of the case, what is expected to happen at each court hearing and the possible sentences available for the offences charged. For further details see the CPS Service to Bereaved Families in Homicide Cases.

Provision of information to third parties

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

Murder Sentencing

Offenders convicted of murder receive a sentence of life imprisonment. The minimum term which they must serve is governed by schedule 21 of the Sentencing Act 2020.

A different regime applies to offenders aged 18 or over. However, in R v Peters; R v Palmer; R v Campbell [2005] EWCA Crim 605 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.

In R v Kelly [2011] EWCA Crim 1462 Lord Judge CJ said the paragraphs reflecting seriousness in Schedule 21 "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 and R v Thomas [2009] EWCA Crim 904 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.

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 guidelines issued by the Sentencing Council govern the sentencing of manslaughter cases.

The difference in starting points for different forms of manslaughter mean that prosecutors must ensure there is clarity in the way the prosecution case is put, and on what basis any guilty plea is tendered or accepted. The guidelines advise that the type of manslaughter (and thereby the appropriate guideline) should have been identified prior to sentence and the judge should be invited to make clear the basis on which the defendant is to be sentenced.

Where a defendant is convicted of manslaughter of an emergency worker, prosecutors should note that section 3 of the Police Crime Courts and Sentencing Act 2022 inserted s.258A into the Sentencing Act 2020, which provides for a mandatory sentence of life imprisonment to be imposed, unless the Court considers there are exceptional circumstances which relate to the offence or the offender, and which justify not doing so. Prosecutors must have regard to the Sentencing children and young people: Definitive guideline in relevant cases.

Mental health and sentencing

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).