The offences of murder and manslaughter are built on the moral and conceptual foundations discussed in the previous chapter. We have seen that, in terms of the conduct elements, for murder and manslaughter the prosecution has to prove that the defendant unlawfully caused the death of a person. For murder, the prosecution must also prove that the defendant intended to kill or to cause grievous bodily harm. Absent this, a homicide may still be regarded as unlawful if it comes within the recognised categories of ‘involuntary manslaughter’, that is, unlawful act and gross negligence manslaughter. Even where there is the appropriate intention, murder may be reduced to manslaughter on account of diminished responsibility or provocation. Both murder and manslaughter may be regarded as ‘lawful’ if committed in self-defence or the prevention of crime. Gender is an ever-present, though often hidden, element in constructions of murder and manslaughter. In the last 25 years, the relevance of the history of violence in a relationship has featured more overtly, both in scholarly discussions and in judicial explorations of the partial defences of diminished responsibility and provocation and in self-defence.
Linking this basic account with the discussion in the last chapter, we can summarise in the following way: a person who causes the death of another with intention to kill or with intention to cause grievous bodily harm commits murder unless:
(a) the person is in persistent vegetative state (PVS) and satisfies the Bland criteria and death is brought about through withdrawal of treatment; or