A New Homicide Act For England And Wales? (Consultation Paper) [2005] EWLC 177 (20 December 2005)

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The Law Commission

Consultation Paper No 177

A NEW HOMICIDE ACT FOR ENGLAND AND WALES?

A Consultation Paper

The Law Commission was set up by section 1 of the Law Commissions Act 1965 for the purpose of promoting the reform of the law.

The Law Commissioners are:

The Honourable Mr Justice Toulson, Chairman

Professor Hugh Beale QC, FBA

Mr Stuart Bridge

Dr Jeremy Horder

Professor Martin Partington CBE

The Chief Executive of the Law Commission is Steve Humphreys and its offices are at Conquest House, 37-38 John Street, Theobalds Road, London WC1N 2BQ.

This consultation paper, completed on 28 November 2005, is circulated for comment and criticism only. It does not represent the final views of the Law Commission.

The Law Commission would be grateful for comments on its proposals before 13 April 2006. Comments may be sent either –

By post to:

David Hughes Law Commission Conquest House 37-38 John Street Theobalds Road London WC1N 2BQ

Tel: 020-7453-1212 Fax: 020-7453-1297

By email to:

[email protected]

It would be helpful if, where possible, comments sent by post could also be sent on disk, or by email to the above address, in any commonly used format.

All responses will be treated as public documents in accordance with the Freedom of Information Act 2000, and may be made available to third parties.

This consultation paper is available free of charge on our website at:

http://www.lawcom.gov.uk/murder.htm

THE LAW COMMISSION

A NEW HOMICIDE ACT FOR ENGLAND AND WALES?

CONTENTS

PART 1: WHY IS A NEW HOMICIDE ACT NEEDED?	PART 1
The terms of reference for the Review of Murder	1
How is the Law Commission taking forward these terms of reference?	2
The existing law and the problems with it: a brief guide	3
Offences	4
Problems with these offences	5
Partial defences	6
Problems with these partial defences	7
Missing defences	8
Sentencing and reform of the law of murder	9
Our provisional proposals: an overview of the structure	10
Why is a new Homicide Act needed?	11
The definition of murder is badly out-of-date	12
Defences to murder lack coherence and are too wide or too narrow in scope	13
Provocation	14
Excessive force in self-defence	15
Duress	16
Suicide pacts and depressed carers who kill	17
Why can't the judges be left to make the necessary changes?	18
What has Parliament done up until now?	19
The Criminal Justice Act 2003 and the law of homicide	20
Our philosophy: promoting coherence in the law	21

PART 2: CHANGING THE STRUCTURE OF THE LAW OF HOMICIDE	PART 2
Questions and provisional proposals	1
Our provisional view of how the law of homicide should be restructured	2
Should murder remain a separate offence, or offences?	3
Some advantages of confining "first degree murder" to intent-to-kill cases	4
Keeping the offence of "murder": the proposals of the CLRC	5
The "sanctity of life" argument	6
The "sanctity of life" argument	6
The argument of Sir Louis Blom-Cooper and Professor Terence Morris	7
Should "first degree murder", and the mandatory penalty, be further restricted?	8
Premeditation	9
Should "first degree murder" extend beyond intent-to-kill cases?	10
Should there be a further category of murder? "Second degree murder"	11
A radical alternative: abolish all partial defences	12
There is no coherence to the way defences and partial defences interrelate	13
Defence rules have become over-complex and are applied inconsistently	14
Schedule 21 to section 269 of the Criminal Justice Act 2003	15
Fault elements and the structure of the law of homicide	16

PART 3: THE FAULT ELEMENT IN MURDER	PART 3
Questions and provisional proposals	1
An overview of the issues and our proposals	2
"First degree murder" and the intention to kill	3
"Second degree murder" and the intention to do serious harm	4
"Second degree murder" and reckless indifference	5
Summary	6
The "serious harm" rule and liability for reckless murder: a first look	7
The "serious harm" rule	8
Murder by reckless indifference	9
The two kinds of fault element in "second degree murder"	10
The serious ("grievous bodily") harm rule	11
Background considerations	12
The "wide" view of grievous bodily harm	13
The "ordinary meaning" view of serious harm	14
The "potentially lethal harm" view of serious harm	15
Defining serious harm	16
Previous recommendations: the "fully subjective" approach	17
The views of the Irish Law Reform Commission	18
Reforming the "serious harm" rule	19
A radical alternative categorisation?	20
Murder by reckless indifference to causing death	21
Supplementing the "serious harm" rule, within "second degree murder"	22
Alternatives to "reckless indifference"	23
Should killing by reckless indifference replace, or supplement, the "serious harm" rule?	24
Should the scope of murder though reckless indifference be further restricted?	25
Fault in manslaughter	26
Gross negligence manslaughter	26
Unlawful act manslaughter: the Government's proposals	27

PART 4: INTENTION	PART 4
Questions and provisional proposals	1
The First Model	2
The Second Model	3
Structure of this Part	4
Introduction	5
The First Model: previous Law Commission recommendations for a definition of "intentionally"	6
Clause 18(b) of the Draft Criminal Code (1989)	7
Shortcomings identified in relation to clause 18(b)(ii) of the Draft Code	8
Danger of blurring the distinction between "intention" and "recklessness"	9
The requirement that an event will occur in the ordinary course of events	10
A result which it is the actor's purpose to avoid	11
Doubts about the standard formulation	12
Our views about the shortcomings and doubts	13
Clause 1(a) of the Draft Criminal Law Bill	14
Shortcomings identified in respect of clause 1(a) of the draft Criminal Law Bill	15
Does the phrase "If he were to succeed in his purpose of causing some other result" make the definition of "intentionally" too narrow?	16
Is the word "purpose" unsuitable for a definition of an intentional result?	17
Our views about the shortcomings with clause 1(a) of the Criminal Law Bill	18
Scope of the definition	19
"Purpose"	20
Our views on the definition of "intentionally"	21
A new definition based on Clause 18(b)(ii) – "intentionally as to a result"	22
Is it just to equate foresight of a virtually certain result with intention?	23
A proviso to exclude counter-intuitive findings from the definition of "intentionally"	24
Other approaches to avoiding counter-intuitive outcomes	25
The phrase "would occur in the ordinary course of events"	26
Conclusion	27
The First Model: proposal based on Clause 18(b)(ii)	28
The Second Model: based on codification of the common law	29
Our views	30
The Second Model: proposal based on codification of the common law	31
Conclusion	32
The doctrine of double effect	33
The basis of this doctrine	34
The distinction between intended results and side-effects	35
The distinction between intention and emotional desire	36
A definition of murder suggested by Finnis, adopting a narrow meaning of intent	37
Adams	38
Glanville Williams	39
How should the law of murder address the doctrine of double effect?	40
Conclusion	41

PART 5: COMPLICITY IN "FIRST DEGREE MURDER"	PART 5
Questions and provisional proposals	1
Introduction	2
Secondary liability and murder at common law	3
D's conduct – the general rule	4
D's state of mind – the general rule	5
D's conduct and state of mind – joint enterprises	6
Secondary liability for murder – our proposals	7
A new doctrine of secondary liability	8
(a) D "intended" that "first degree murder" should be committed	9
(b) D and P were parties to a joint venture to commit "first degree murder"	10
(c) D and P were parties to a joint venture to commit another offence	11
"First degree murder" rather than "second degree murder"?	12
A special defence for secondary participants in murder?	13
A partial defence of duress for participants in murder?	14
A new homicide offence for some parties to a joint venture	15

PART 6: DIMINISHED RESPONSIBILITY AND PROVOCATION	PART 6
Questions and provisional proposals	1
Diminished responsibility	2
Introduction	3
Our previous position on whether diminished responsibility should be retained as a partial defence to murder	4
Our current position	5
A partial defence to "first degree murder"?	6
Should diminished responsibility reduce "first degree murder" to "second degree murder" or to manslaughter?	7
A partial defence to "second degree murder"?	8
Reformulating the definition of diminished responsibility	9
Our provisional proposal, and the New South Wales solution	10
Other reform options and alternative definitions of diminished responsibility	11
German law	12
The Mental Health Act 1983	13
Children who kill	14
Reform of the partial defence of diminished responsibility	15
An alternative solution?	16
The role of the expert witness	17
Procedure in diminished responsibility cases	18
General considerations	19
The 'Queensland' model	20
The relationship between insanity and diminished responsibility	21
Provocation and defensive homicide	22
Our previous proposals	23
The proposals of the Victorian Law Reform Commission	24
The relationship between provocation and diminished responsibility	25

PART 7: DURESS AS A DEFENCE TO MURDER	PART 7
Questions and provisional proposals	1
Introduction	2
Duress under common law	3
Duress by threats	4
Duress of circumstances	5
History of the Law Commission's view on duress and murder	6
The arguments of principle	7
Summary of the main arguments against extending the defence to cover murder	8
Summary of arguments in favour of extending duress to cover murder	9
The need for consultation	10
Our proposed framework	11
The position of duress within the overall structure of homicide	12
Provisional proposal that duress should be a partial defence to a charge of "first degree murder"	13
Duress and "second degree murder"	14
Duress as a partial defence compared with the other partial defences	15
The basis of a plea of duress	16
Characteristics of the defendant	17
Reasons for recommending that common law rule as to the defendant's characteristics should be altered	18
The need for the defendant's view of the nature of the threat to be objectively reasonable	19
The previous view of the Law Commission	20
The plea should be objectively based	21
Reconciling the need for reasonable grounds with the decision in Martin (David Paul)	22
Other requirements necessary in order to establish a plea of duress	23
The conduct of the defendant must be directly related to the threats	24
The rule in Safi and Ors 190 Official protection	25
Voluntary exposure to duress	26
The decision in Hasan	27
Duress and attempted murder	28
The requisite test as to characteristics of the defendant in cases of attempted murder	29
The burden of proof	30
Our former view	31
Additional reasons for making the defence available in some types of murder cases	32
Juveniles	33
Complicity	34

PART 8: KILLING WITH CONSENT AND DIMINISHED RESPONSIBILITY	PART 8
Questions and provisional proposals	1
Suicide pacts	2
Killing with consent, when the killer's responsibility is diminished	3
Our Terms of Reference and the scope of our consultation	4
How the argument proceeds	5
A brief introduction to the existing legal provisions	6
Should section 4 of the Homicide Act 1957 be retained?	7
'Mercy Killing': the proposals of the Criminal Law Revision Committee	8
'Mercy Killing': the Nathan Committee Report	9
Depressed carers who kill: some empirical evidence	10
Murder-suicide, suicide pacts and gender differences	11
Expanding section 2 of the Homicide Act 1957: our proposals	12
Joint suicide and complicity in suicide	13

PART 9: INFANTICIDE	PART 9
Questions and provisional proposals	1
Introduction: a unique offence	2
Historical background	3
Infanticide and diminished responsibility under section 2 of the Homicide Act 1957	4
Retaining but reforming the offence of infanticide: minimal, moderate and radical reform options	5
Criticisms of the offence	6
The psychiatric basis of the offence	7
The Act only applies to the biological mother	8
The age limit of the victim	9
The morally unsustainable mitigation of child killing	10
Degrees of child killing	11
Summary of previous proposals for reform	12
The common factors	13
The Butler Report	14
The Fourteenth Report of the CLRC	15
The Law Commission: Draft Code	16
The present legislative context: Domestic Violence, Crime and Victims Act 2004 237 Options for Reform	17
The abolitionist position	18
The minimal reform position	19
The moderate reform position	20
The radical expansionist position	21
Merger with diminished responsibility	22
Application to "first degree murder" and "second degree murder"	23
Charging and procedure at trial	24

PART 10: LIST OF PROVISIONAL PROPOSALS AND CONSULTATION QUESTIONS	PART 10
The structure of homicide offences	1
Provisional proposal	2
Questions	3
The general homicide offences that we are proposing	4
"First degree murder"	5
Provisional proposal	6
Questions	7
"Second degree murder"	8
Provisional proposals	9
Questions	10
Manslaughter	11
Provisional proposals	12
Questions	13
The meaning of intention	14
The First Model	15
The Second Model	16
Complicity in "first degree murder"	17
Provisional Proposals	18
Questions	19
The definition of the partial defence of diminished responsibility	20
Provisional proposal	21
Questions	22
The partial defence of provocation	23
Provisional proposal	24
Questions	25
Duress 255 Provisional proposal	26
Questions	27
Killing with consent and diminished responsibility	28
Provisional proposal	29
Questions	30
Infanticide	31
Provisional proposal	32
Questions	33

APPENDICES
APPENDIX A: REPORT ON PUBLIC SURVEY OF MURDER AND MANDATORY SENTENCING IN CRIMINAL HOMICIDES	APPENDIX A
APPENDIX B: SUMMARY FINDINGS OF SURVEY OF CROWN PROSECUTORS	APPENDIX B
APPENDIX C: SUBMISSIONS FROM JUDGES ON THE FAULT ELEMENT IN MURDER	APPENDIX C
APPENDIX D: THE LAW OF HOMICIDE IN OTHER JURISDICTIONS	APPENDIX D
APPENDIX E: ANALYSIS OF "LIFER" CASES	APPENDIX E
APPENDIX F: A CASE STUDY	APPENDIX F
APPENDIX G: BACKGROUND INFORMATION ABOUT MURDER AND HOMICIDE	APPENDIX G
APPENDIX H: ALTERNATIVE VERDICTS IN HOMICIDE CASES	APPENDIX H
APPENDIX I: PERSONS AND ORGANISATIONS	APPENDIX I

PART 1

WHY IS A NEW HOMICIDE ACT NEEDED?

THE TERMS OF REFERENCE FOR THE REVIEW OF MURDER

1.1 In July 2005, the Government announced a review of the law of murder in England and Wales, with the following terms of reference:

(1) To review the various elements of murder, including the defences and partial defences to it, and the relationship between the law of murder and the law relating to homicide (in particular manslaughter). The review will make recommendations that:

(a) take account of the continuing existence of the mandatory life sentence for murder;

(b) provide coherent and clear offences which protect individuals and society;

(c) enable those convicted to be appropriately punished; and

(d) be fair and non-discriminatory in accordance with the European Convention of Human Rights and the Human Rights Act 1998.

(2) The process used will be open, inclusive and evidence-based and will involve:

(a) a review structure that will look to include key stakeholders;

(b) consultation with the public, criminal justice practitioners, academics, those who work with victims' families, parliamentarians, faith groups;

(c) looking at evidence from research and from the experiences of other countries in reforming their law.

(3) The review structure will include consideration of areas such as culpability, intention, secondary participation etc inasmuch as they apply to murder. The review will only consider the areas of euthanasia and suicide inasmuch as they form part of the law of murder, not the more fundamental issues involved which would need separate debate. For the same reason abortion will not be part of the review.

How is the Law Commission taking forward these terms of reference?

1.2 We will not be reviewing every issue that could, in theory, be regarded as falling within the scope of the review. The areas of law that seem to us to give rise to real difficulty or anomalies have guided us in our focus. Even within those areas, we will not be addressing issues best left to a wider review of other areas of the law, issues that cannot be adequately considered and consulted on in the time available or issues that are too close to one falling outside the scope of the review (child destruction, for example, being too close to abortion).

1.3 Issues we will not be addressing include:

(1) Justifications for killing: abortion, necessity and self-defence.

(2) The prohibited conduct element: causation, the legal criteria governing when life begins and when life ends and child destruction (the offence of killing a child in the womb capable of being born alive).

(3) The defences of insanity and intoxication.

(4) Aggravating features of a murder, such as an especially evil motive or the fact that a child or law officer on duty was intentionally targeted. We have also left these out of consideration as we regard them as having been adequately addressed by Parliament through the guidance that it has recently given on sentencing in murder cases (see paragraphs 1.27-1.29 and 1.104-1.123 below).

THE EXISTING LAW AND THE PROBLEMS WITH IT: A BRIEF GUIDE

1.4 The law governing homicide in England and Wales is a rickety structure set upon shaky foundations. Some of its rules have been unaltered since the seventeenth century, even though it has long been acknowledged that they are in dire need of reform. Other rules are of uncertain content or have been constantly changed, so that the law cannot be stated with certainty or clarity. Certain reforms effected by Parliament that were valuable at the time are beginning to show their age or have been overtaken by other legal changes and yet left unreformed.

1.5 This state of affairs should not continue. The sentencing guidelines that Parliament has recently issued for cases where someone has been convicted of murder ^[1] presuppose that murder has a rational structure, a structure that properly reflects degrees of fault and provides defences of the right kind and with the right scope. Unfortunately, the law does not have, and never has had, such a structure. Putting that right is an essential task for criminal law reform.

1.6 We will propose that, for the first time, the general law of homicide be rationalised through legislation. Offences and defences must take their place within a readily comprehensible and fair legal structure. That structure must be set out with clarity, in a way that will promote certainty in the future and in a way that non-lawyers can understand and accept.

1.7 We will be going into these matters in much greater depth but, in brief, what is the existing law and what are its problems?

Offences

1.8 Two general offences of homicide, murder and manslaughter, are employed to accommodate the majority of ways in which someone might be at fault in killing. We say "the majority" because there are a number of specific homicide offences, for example, infanticide and causing death by dangerous driving.

1.9 Murder, which carries a mandatory life sentence, is committed when someone unlawfully kills another person ('V') with an intention to kill V or an intention to do V serious harm.

1.10 Manslaughter can be committed in one of four ways:

(1) Conduct that the defendant knew involved a risk of killing, and did kill, is manslaughter ("reckless manslaughter");

(2) Conduct that was grossly negligent given the risk of killing, and did kill, is manslaughter ("gross negligence manslaughter");

(3) Conduct, taking the form of an unlawful act involving a danger of some harm, that killed, is manslaughter ("unlawful and dangerous act manslaughter");

(4) Killing with the intent for murder but where a partial defence applies.

The term "involuntary manslaughter" is used to describe a manslaughter falling within (1) – (3) while (4) is referred to as "voluntary manslaughter".

Problems with these offences

1.11 The current definitions of these offences are largely the product of judicial law making in individual cases over hundreds of years. They are not the products of legislation enacted after wide consultation and research into alternative possibilities. Moreover, from time to time the definitions have been altered by the courts,^[2] each new case sometimes generating further case law to resolve ambiguities left behind by the last one.

1.12 The inclusion within murder of cases in which the defendant killed, but intended only harm that the jury regards as serious, is highly controversial.^[3] On this basis, even someone who positively believed both that no one would be killed by their conduct and that the harm they were inflicting was not serious, can find themselves bracketed with the "contract" or serial killer as a "murderer".

1.13 If murder can be too broad, so can manslaughter. It probably covers as large a range of forms of culpability as any crime in English law.

1.14 At the most serious end of the involuntary manslaughter spectrum, the law may be too generous to defendants who kill by reckless conduct. The worst kinds of reckless killer may deserve to be convicted of murder.^[4]

1.15 At the less serious end of the involuntary manslaughter spectrum, the law may be too harsh on defendants who kill as a result of an unlawful and dangerous act The risk of harshness arises when defendants do not realise that the act may cause harm:

EXAMPLE 1: D is seeking to steal a large book from the fourth floor of a library whose windows face on to a busy street. Seeing the librarian coming towards him, D quickly drops the book out of the window. It lands on V's head as she walks underneath the window, killing her.

1.16 D's theft of the book should not be sufficient to convict D of the manslaughter of V even though, in the circumstances, there was an obvious risk of some harm arising from D's action. The need to narrow the crime of involuntary manslaughter has already been accepted by Government.^[5]

1.17 In paragraphs 1.30-1.48, and in more detail in Part 2, we set out some possible solutions to these problems. These solutions include a distinction between "first degree murder" and "second degree murder" that, amongst other things reflects the distinction in degrees of fault between intending to kill and intending to do serious harm.

1.18 Further, we provisionally propose that the worst kinds of reckless killing become "second degree murder", thereby restricting the scope of involuntary manslaughter at the serious end. At the less serious end of involuntary manslaughter, we adopt, with some minor amendments, the Government's previous proposals to restrict the scope of unlawful and dangerous act manslaughter to cases where the defendant killed the victim through an criminal act intended to cause injury or involving recklessness as to causing injury.

1.19 These changes would provide a proper structure for the law of homicide, with offences on an ascending ladder of seriousness according to the degree of fault, from manslaughter through "second degree murder" to "first degree murder".

Partial defences

1.20 In this review, we are mainly concerned with partial defences, for example provocation, rather than with complete defences, for example self-defence. Currently, there are generally acknowledged to be three partial defences to murder: provocation, diminished responsibility and killing in pursuance of a suicide pact. If successfully pleaded, they do not result in a complete acquittal but in a conviction of manslaughter rather than murder.

1.21 However, there are also what might be called "concealed" partial defences, created by legislation as specific offences. Examples are the offences of infanticide (Infanticide Act 1938), when a mother whose mind is disturbed kills her baby who is less than 12 months old, and complicity in suicide (Suicide Act 1961) where someone assists or encourages another person to commit suicide.

Problems with these partial defences

1.22 The partial defence of provocation is a confusing mixture of judge-made law and legislative provision. The basic rule has been clear enough for a long time: it is manslaughter, not murder, if the defendant, having been provoked, lost his or her self-control and killed in circumstances in which a reasonable person might also have done so. However, the highest courts have disagreed with one another on a number of occasions about the scope of the defence. Consequently, not only has its scope been left unclear, but there is no end in sight to the disagreement. In 2004 we recommended reform of the partial defence of provocation and we set out how we thought the defence should be reformed.^[6] We return to this topic in Part 6.

1.23 The diminished responsibility defence was a welcome reform when it was introduced in 1957. However, medical science has moved on considerably since then and the definition is now badly outdated. The same is true of infanticide. Further, the statutory provision that makes the survivor of a suicide pact guilty of manslaughter was meant to reflect pity on those desperate enough to seek to take their own lives along with that of another person. Unfortunately, the relationship between manslaughter by virtue of killing pursuant to a suicide pact and the offence of complicity in suicide -created a few years later and in theory a less serious offence than manslaughter - was not fully thought through. Moreover, the scope of the partial defence, exclusively concerned with death occurring through suicide pacts, is unduly narrow.

Missing defences

1.24 Whereas there has recently been controversy over whether provocation should continue to be a partial defence to murder, other strong claims for mitigation of the offence of murder have failed to gain legal recognition. Judges have decided that they would prefer Parliament to decide whether there should be new defences to murder but Parliament has not had the time to consider the matter.

1.25 One such claim arises when the defendant, fearing serious violence from an aggressor, goes too far in deliberately killing the aggressor in order to repel the feared attack. We have already recommended that the defendant's fear of serious violence should be the basis for a partial defence to murder, through reform of the provocation defence.^[7]

1.26 Another such claim is "duress". This is where the defendant becomes involved in the killing of an innocent person but only because the defendant is being threatened him or herself with death or with a life-threatening injury if he or she does not participate in the killing. At the very least, a claim of duress should reduce what would under our proposals otherwise be "first degree murder" to a lesser homicide offence.

Sentencing and reform of the law of murder

1.27 All persons convicted of murder are sentenced to imprisonment for life. The sentence comprises three periods, one of which is the minimum term. This is the period that the offender must spend in prison before he or she is eligible for release. The length of the minimum term is set by the trial judge. In deciding upon the length, he or she must refer to guidelines that Parliament provided in the Criminal Justice Act 2003 ("the 2003 Act"). Under the guidelines, the length of the minimum term will depend on the gravity of the murder. For example, suppose the defendant takes part in a plan to murder two (or more) persons and then participates in their murders. If the defendant is aged 21 or over, that should ordinarily be met with a sentence indicating that the defendant must spend the rest of his or her life in prison.^[8] The setting down of such recommended minimum terms makes the argument for reform of the law of murder very strong.

1.28 For example, what if the defendant participated in the murders just mentioned (perhaps by providing no more than some minor act of assistance) only because he or she, or his or her family, had been threatened with death? The 2003 Act makes no mention that this is to be a factor mitigating the punishment. Arguably, the defendant should not be guilty of murder, in any event, but of a lesser offence of homicide. We consider this issue in Part 7.

1.29 The 2003 Act also says that if a killing comes about through an intention to do only serious harm, the fact that there was no intention to kill is a 'mitigating factor'. That approach is necessary, given the law as it stands, but the important question is, should killings that come about only through an intention to do serious harm be governed by the 2003 Act at all? In other words, should the 2003 Act apply only when there was an intentional killing? Our provisional view is that the answer to this last question should be "yes".

OUR PROVISIONAL PROPOSALS: AN OVERVIEW OF THE STRUCTURE

1.30 We propose that there should be a new Homicide Act for England and Wales. The new Act should replace the Homicide Act 1957 ("the 1957 Act"). The new Act should (for the first time) provide clear definitions of murder, and of the partial defences to murder. Ideally, the Act should also define manslaughter so that the general offences of homicide are largely dealt with within a single piece of legislation.

1.31 How do we propose that the new Homicide Act should define murder, manslaughter and partial defences to murder? We have been guided by a key principle. This is what can be called the "ladder" principle.

1.32 Individual offences of homicide, and partial defences to murder, should exist within a graduated system or hierarchy of offences. This system or hierarchy should reflect degrees of seriousness (of offence) and degrees of mitigation (in partial defences). Individual offences should not be so wide that they cover conduct varying very greatly in terms of its gravity. Individual partial defences should reduce the level of seriousness of a crime to the extent warranted by the degree of mitigation involved.

1.33 For example, we will be suggesting that murder should be divided into "first degree murder" (attracting the mandatory life sentence), and "second degree murder" (with a discretionary life sentence maximum).

1.34 We will also be asking the question whether manslaughter should continue to be such a broad crime. Should it really continue to cover not only what would be murder but for the effect of partial defences but also all culpable unlawful killing, from a trivial assault that unexpectedly causes death to killing through a very high degree of recklessness?

1.35 With regard to partial defences, we will be asking whether, for example, a successful plea of diminished responsibility should in all instances reduce "first degree murder" to "second degree murder". Is there a case for providing that where, in addition, the victim consented to being killed, the combined effect of diminished responsibility and the victim's consent should be to reduce the offence from "first degree murder" to manslaughter? We will also be asking whether duress should reduce "first degree murder" to "second degree murder" and whether it should be a complete defence to a charge of "second degree murder".

1.36 The "ladder" principle also applies to punishments for offences. The mandatory life sentence for murder should be confined to the most serious kind of killing. A discretionary life sentence should be available for less serious (but still highly blameworthy) killings. A fixed term of years maximum should be sufficient to deal justly with those homicides where the offender's degree of fault was lower or where there were quite exceptional mitigating circumstances.

1.37 We set out below a structure that we believe would, in accordance with the "ladder" principle, make the law of homicide more coherent and comprehensible. We invite comment on it. There are many alternatives and consultees should feel free to suggest their own preferences in that regard.

1.38 "First degree murder" (mandatory life penalty):

(1) Intentional killing.

1.39 "Second degree murder" (discretionary life maximum penalty):

(1) Killing where the offender did not intend to kill but did intend to do serious harm.

(2) Recklessly indifferent killing, where the offender realised that his or her conduct involved an unjustified risk of killing, but pressed on with that conduct without caring whether or not death would result.

(3) Cases in which there is a partial defence to what would otherwise be "first degree murder".

1.40 Manslaughter (fixed term of years maximum penalty):

(1) Killing through gross negligence;

(2) Killing through an intentional act intended to cause injury or involving recklessness as to causing injury.

1.41 Other offences:

(1) Infanticide; complicity in suicide.

1.42 Defences reducing "first degree murder" to "second degree murder":^[9]

(1) Provocation (gross provocation or fear of serious violence).

(2) Diminished responsibility.

(3) Duress (threat of death or of life-threatening injury).

1.43 We would also like to receive views on other questions, such as whether first degree murder should include some instances of killing through an intention to do serious harm, if the 'serious harm' that must be intended can be clearly restricted to very grave harms. These other questions can be found in Part 10.

1.44 We are also concerned with the question of how the terms used in this revised structure are to be defined. What is "recklessness", for the purposes of a "second degree murder" conviction? How are provocation and diminished responsibility to be defined? What kinds of consensual killing are worthy of being treated as lesser offences of homicide? All of these questions are addressed in the Parts that follow.

1.45 We will also be concerned with other general principles that run alongside the "ladder" principle. One such is the "fair labelling" principle.^[10] Offenders should not be labelled as guilty of murder, or of manslaughter, unless their conduct is sufficiently blameworthy to deserve that label. For example, we will be raising the question whether someone who killed when they intended to do only what the law regards as serious harm, and did not intend to kill, is fairly labelled as a 'murderer'. Is it right that such a person is regarded as a murderer, but someone provoked into killing intentionally by (say) his or her partner's unfaithfulness can be convicted only of manslaughter?

1.46 People's views on fair labelling questions will understandably differ very widely. Important though the fair labelling principle is, we would not want our analysis to become bogged down in questions concerning the appropriateness of particular labels for particular offences. It is more important that we set to rights the structure, or ladder, of offences.

1.47 For now, what we have done is to set out the kind of structure that we regard as appropriate for a modern, fair and comprehensible law of homicide. It is our belief that the new structure respects the "ladder" principle in a way that those guided and governed by the law are entitled to expect.

1.48 We must now turn to the justifications for these changes.

WHY IS A NEW HOMICIDE ACT NEEDED?

The definition of murder is badly out-of-date

1.49 Few non-lawyers are likely to know that the starting point in any analysis of the law of murder is not an Act of Parliament. It is a definition of murder laid down by a judge, Lord Chief Justice Coke, in a book on criminal law that he completed in the early part of the seventeenth century.

1.50 Even though he successfully prosecuted the gunpowder plotters, Lord Coke's knowledge of the criminal law was patchy and his account of murder contained some bad errors. One such error was the assertion that killing in the course of any unlawful act was murder.

1.51 Although they knew that this assertion was wrong, such was later judges' high regard for Lord Coke that they did not use their powers to correct the error. Lord Coke's word subsequently became law in the criminal codes of most states in the United States of America (USA), where it remains in a modified form to the present day. It was not finally erased from English law until 1957 when Parliament intervened.^[11] Over the centuries, the error must have led to the execution of hundreds of people in England and Wales and across the USA who should really have been convicted of manslaughter.

1.52 This is how Lord Coke defined murder:

Murder is where a man of sound memory, and of the age of discretion, unlawfully killeth within any country of the realm any reasonable creature in rerum natura under the King's peace, with malice aforethought, either expressed by the party or implied by law, so that the party wounded, or hurt, etc die of the wound or hurt, etc within a year and a day after the same.^[12]

1.53 Of course, this wording is no longer used when, for example, judges direct juries on the law. Even now, however, his definition is still regarded as having what lawyers call great "persuasive" authority. That means judges still look to Lord Coke's definition for guidance.

1.54 They did this, for example, in the recent case in which the Court of Appeal ordered that conjoined twins could be separated to save the life of the stronger twin, even though that would mean the weaker twin died.^[13] The question was whether the weaker twin was a "reasonable creature", protected by the law of murder, as defined by Lord Coke.

1.55 Even if it was broadly accurate at the time it was given, however, Lord Coke's definition is now seriously misleading and out-of-date in a number of respects.^[14]

1.56 The ancient distinction between express and implied malice, although (we suggest, wrongly) preserved by the 1957 Act, is obscure, liable to mislead even judges and performs no useful function. The jury decides what the defendant's intention was by considering all the evidence. "Malice" is not now, even if it once was, "implied by law".

1.57 Furthermore, the use of the term "malice aforethought" to express the culpability element in murder has come in for judicial criticism for more than 300 years.

1.58 First, it suggests a need for literal premeditation that, in fact, is unnecessary to secure a conviction for murder, and has been unnecessary for a long time.

1.59 Secondly, "malice" is in itself a term of very uncertain scope. Even as recently as the 1970s, judges disagreed over whether, for the purposes of the law of murder, it included causing death through some kinds of reckless conduct.^[15] Finally, in 1985 they agreed that it was confined to cases where the offender "intended" to do the relevant harm.^[16] Yet what was the relevant harm? The answer to this question turned on the meaning of "acting 'maliciously' in causing another's death". Surprisingly, the judges held that it was not confined to death or the risk of killing.

1.60 Instead, acting "maliciously", in causing another's death has been held to cover not only those who intend to kill, but also those who kill when only intending to do harm the jury regards as serious.^[17] This remains the law to the present day. So, in the following example D is guilty of murder because he acts "with malice aforethought":

EXAMPLE 2: D and V have been arguing over access to a parking space. V blocks D's way as D is trying to drive into the space in his large van. In order to get into the space, D drives over V's foot knowing he will break it in so doing. Complications set in when V is being treated in hospital for his broken foot, leading to his death.

1.61 There is little or no doubt that a broken foot is "serious harm", and it is that harm that, in the eye of the law, D intentionally inflicts on V.^[18] As V dies in consequence, D may be convicted of murder. If convicted, D will receive the mandatory life sentence. In our view, this is the wrong result. D should be guilty of, at most, what we will call "second degree murder", and is probably better regarded as having committed manslaughter.^[19]

1.62 Most lawyers agree that it is time to confine Lord Coke's definition to the history books. England and Wales need and deserve a modern definition of murder, set down by Parliament.

Defences to murder lack coherence and are too wide or too narrow in scope

1.63 Given that conviction for murder carries with it a mandatory life sentence, it is hard to over-state the importance of a coherent and fair structure of defences to murder. Currently, however, defences to murder are little more than a hotchpotch of uncertain and ever-changing judge-made law, and ageing statutory provision. There is no overall sense of purpose in the design.

Provocation^[20]

1.64 Provocation provides an example of continuing uncertainty in the law. The partial defence of provocation can reduce murder to manslaughter, thereby setting the judge free to pass such sentence as seems appropriate. The essential ingredients of the defence were settled by the end of the seventeenth century. At the time of the killing, a defendant must have lost self-control following provocation and it must be possible to say that a reasonable person similarly provoked might also have lost self-control and killed.

1.65 However, the exact scope of the defence is still a matter of great controversy. Decisions of the two highest judicial bodies in England and Wales, the House of Lords and the Privy Council, are – not for the first time – currently in conflict over a key element of the defence.^[21] This is the question whether all, or only some, of a person's individual characteristics should be taken into account in judging whether their reaction to the provocation might have been a reaction of a reasonable person. That a disagreement between these judicial bodies over the scope of the defence (a dispute that might seem arcane to many) still rumbles on after four centuries of legal development shows the law up in a poor light.

1.66 Moreover, a defendant can avail him or herself of the defence in wholly unmeritorious cases. Possibly as a result of Parliamentary oversight when the law was partially reformed in 1957, a judge became obliged to put the defence to the jury as one to be considered even when the evidence that the defendant had been provoked was unpersuasive, and the matter was not even raised by defence counsel. We have already recommended changes to these rules in our Report, Partial Defences to Murder.^[22]

Excessive force in self-defence^[23]3

1.67 A lack of coherence in the overall design of defences to murder is illustrated by the law governing the use of defensive force intended to kill or cause serious harm. Self-defence is a complete defence to murder if the only realistic way of repelling a potentially lethal attack was to meet the attack with equally lethal force. If self-defence is successfully pleaded, the result is acquittal of both murder and manslaughter.

1.68 To be successful in the plea, however, the defendant must (amongst other things) have used no more than "reasonable force". If the jury find that the force used was unreasonable, because it was excessive, the defence fails altogether. In that event, there is unlikely to be any other defence available and he or she will be convicted of murder.^[24] In law, there is no legal "halfway house" for those who over-react, even when they are facing a threat of serious violence. There is, in other words, no legal basis for convicting of manslaughter in such cases.

1.69 The House of Lords has passed up opportunities to develop the law in that direction, preferring to call for Parliamentary intervention. So, at present, the jury faces a stark choice in such cases between convicting of murder and acquitting altogether. This shows up a lack of adequate design in the law governing defences to murder.

1.70 If a plea of provocation can reduce murder to manslaughter (the "half-way house"), then it should be possible to reach this result when a jury decides that there has been an excessive, but not greatly excessive, reaction to a threat of serious, unlawful force. This is what we recommended as part of our recommendations for reform of the provocation defence.^[25]

Duress^[26]

1.72 The defence of duress does not, however, currently apply to murder or to attempted murder, even if the threat from which someone sought to escape was in fact one of imminent death (and not merely one of serious harm). This can give rise to unfairness in a number of situations and the younger the person threatened the greater the unfairness

1.73 A defendant's contribution to a murder or attempted murder may have been minimal, as when they helped someone else to commit a murder, rather than perpetrating it themselves, as in the following example:

EXAMPLE 3: P threatens D with death unless D immediately drives P to a house that P wishes to burgle. D, knowing that P is capable of violence, realises that P may kill if P encounters a householder, V, during the burglary. D drives P to the house, and then speeds off. D kills V during the burglary.

1.74 In example 3, D's awareness, at the time of driving P to the scene, of what P might do during the burglary, means that D is complicit with P in the murder of V and has no defence of duress. D's complicity means that D will be convicted of murder and will receive the mandatory life sentence along with P. Given that duress is no defence to attempted murder, D would also have no defence of duress to complicity in that offence even if P only tried and failed to kill the householder.

1.75 The courts have resisted the application of a defence of duress to such cases on the grounds that, in some instances, a form of secondary participation in a crime can be more blameworthy than the actual killing.^[27] This might be the case, say, where D (under threat of death from another) orders one of his or her sons to kill another person, which the son does. What the courts overlook is that, in such cases, the jury is not obliged to accept that the defence excuses D's involvement in his or her son's offence. The jury should be trusted to accept or reject the defence on the merits of the individual case.

1.76 It is a legal requirement that, for the defence to be successful, a person of ordinary courage and self-restraint might have done as the person acting under duress did.^[28] The jury is perfectly entitled to take the view that the greater someone's involvement in murder, the less persuasive the case for permitting the defence to succeed.

1.77 This point should also defeat the courts' argument that duress should be no defence to attempted murder because some attempts to kill are as blameworthy as some actual killings. Perhaps they can be as blameworthy, but in such cases the jury can simply reject the defence on the grounds that a person of ordinary courage and self-restraint would not have done as the defendant did.

1.78 The lack of a defence of duress in murder cases is especially harsh when the person forced by threats to participate in a killing is a juvenile or young person. Criminal responsibility in England and Wales begins at 10 years of age. The assumption is that, at that age, children understand enough about the moral and legal significance of their crimes to make it fair to convict them. However, that does not mean that it can also be assumed that children will be as resistant to "commit-a-crime-or-else" threats as an older person should be. The younger a defendant, the less reasonable it may be to expect them to resist threats of death, even when escaping the threat entails becoming involved in committing the gravest of crimes.

EXAMPLE 4: A psychopathic father compels his eleven-year-old son through threats of death to participate in the murder of one of the father's rivals.

1.79 It seems to be nothing less than an affront to justice that the father may be convicted only of manslaughter, on the grounds of diminished responsibility (due to his psychopathic disorder), but his son must be convicted of murder if his participation involved knowingly taking part in the killing.

1.80 One reason the courts may have been resistant to permitting duress to be a defence to murder is that, once again, there seems to be a "design" problem with the application of the defence to murder. Historically, there has never been a "half-way house" possibility of conviction for a lesser homicide offence. The courts have refused to introduce this possibility themselves, saying that it is a matter for Parliament.

1.81 It is an anomaly that the defence must be denied in all murder cases, for fear of complete acquittals in some (undeserving) cases, when there is the possible option of conviction for manslaughter. The jury could simply be trusted to reject unmeritorious claims.

Suicide pacts and depressed carers who kill^[29]

1.82 Finally, an example of the narrowness of existing defences concerns the much debated case of killing by consent. "Euthanasia" is, in law, murder. Even so, if someone kills another person as part of a suicide pact, but then does not (for whatever reason) kill themselves, they are only guilty of manslaughter.^[30] If they simply helped the other person to die they may be convicted of the lesser offence of "assisting suicide", contrary to section 2 of the Suicide Act 1961.

1.83 In some instances, it is hard to see why there should be any mitigation of the offence just because the killing was in pursuance of a suicide pact:

EXAMPLE 5: D and V are terrorists trapped in a building during a shoot-out with the police. Seeing that their position is hopeless, D and V agree that D will blow them both up as the building is stormed, 'to take some police with us'. D detonates the bomb as the building is stormed but it kills only V.

1.84 In fact, many suicide pacts are entered into by older couples both of whom are likely to be mentally and physically ill. Quite frequently, the burden that one partner has had to endure caring for the other leads to the couple agreeing to enter the pact. Any "mercy" being shown is perceived as being shown as much by the victim to the carer, in relieving him or her of caring duties and hence the cause of the continuing stress, as by the carer to the victim in killing him or her. For that reason, more generally, we will not be using the term "mercy" killings as a category of killing.

1.85 In killings of this general type, whether or not the killing was preceded by a suicide "pact" may be a matter of chance.

EXAMPLE 6: D agrees with V that he will kill V. D conceals from V his intention to kill himself immediately thereafter, because he knows V very much wants him to make a new life for himself when she is gone. D kills V, then tries to kill himself but fails.

1.86 D is guilty of murder in this example, whether or not the person who was killed consented. This is because there was no suicide "pact" preceding the killing. It is, though, hard to see that there is any substantial moral difference between such a case and one in which the killing is preceded by a suicide pact. In some circumstances, it should be a lesser offence of homicide on both sets of facts.

1.87 By focusing on the presence or absence of a suicide pact, it is arguable that the law is focusing on the wrong issue. It is cases where severe depression leads the defendant to accede to the victim's request to die (perhaps insisting that this happens by the defendant's hand alone), when the defendant would not otherwise agree to do this, that should be the focus in point of mitigation. The issues are:

(1) Is the defence of diminished responsibility currently wide enough to capture cases where D is moved to act through depression?

(2) Should the fact that the victim also consented in such cases be regarded as providing an element of double mitigation, so that the offence should now be lower down the ladder of offences than it would be if diminished responsibility was the only mitigating factor?

Why can't the judges be left to make the necessary changes?

1.88 Judges do not have the power to create entirely new criminal offences, although they have limited powers to interpret existing crimes in ways that expand their scope. In theory, judges may create new defences to crimes, but in practice they do not do this, confining themselves to making revisions to existing defences. Judges believe significant reform of the criminal law is a matter for Parliament. The House of Lords has set out the following restrictive principles for development of the criminal law by the judiciary:

(1) If the solution is doubtful, the judges should beware of imposing their own remedy;

(2) Caution should prevail if Parliament has rejected opportunities for clearing up a known difficulty, or has legislated leaving the difficulty untouched;

(3) Disputed matters of social policy are less suitable areas for judicial intervention than purely legal problems;

(4) Fundamental legal doctrine should not lightly be set aside; and

(5) Judges should not make a change unless they can achieve finality and certainty.^[31]

1.89 There are good reasons for adopting this very cautious approach to law making in the courts. Judges have very limited opportunities to reform the criminal law. They can only do so when the particular case to be decided is one in which an important point of law arises. That may happen only very rarely, if at all, in some areas of law.

1.90 Even when a case does arise that provides an opportunity to reform the law, judges are limited in what reforms they can make. Judges cannot change any aspect of the law of murder, however much it is in need of reform, unless it is raised by the facts of the case before them. Even in those limited circumstances where judges may be able to make a change in the law, they cannot make any legally decisive consequential reforms that may be necessary or desirable.

1.91 Finally, the development of the criminal law raises many policy issues that require extensive consultation with interested groups and broad-ranging debate if they are to be properly addressed. Judges are not in a position to conduct such consultation exercises or to organise such debate on the back of an individual case.

What has Parliament done up until now?

1.92 Parliament has, in fact, quite often changed particular aspects of the law of homicide. What it has never done, however, is provide a statutory definition of murder or set out a coherent structure of full and partial defences to murder. In this section, we provide some examples of how Parliament over the centuries has changed the law of homicide, including murder. What the changes show is that Parliament, when it has legislated in this area of the law, has tended to respond to particular pressures and has only relatively recently (from the mid twentieth century) begun to take an interest in rationalising the law of homicide.

1.93 In the fourteenth, fifteenth and sixteenth centuries, Parliament intervened to restrict the scope of the King's power to grant pardons for homicide. It sought to exclude that power when homicide was committed "of malice aforethought", the probable beginning of the association of that legal term with premeditated murder. In 1604, the so-called "Statute of Stabbing" was passed. It sought to prevent lenient treatment of killings by "stab or thrust" of someone unprepared for the attack. The measure seems to have been a response to fatal arguments then breaking out between English courtiers and newly-arrived Scottish courtiers.

1.94 In 1752, under pressure from anatomists, the Murder Act was passed "as an object of further terror for better preventing the horrid crime of murder". Replacing the wasteful practice of leaving the body of an executed murderer on the gibbet until decomposition had taken place, science would now benefit from a requirement that the body be subjected to dissection and anatomy. In 1828 Parliament altered the punishment for manslaughter, and abolished the higher category of murder known as "petty treason" (which was subject to different trial procedures and harsher punishment). A Homicide Bill that would have rationalised the definition of murder failed in 1873-74 and failed again in 1878-79 despite having reached a second reading.

1.95 In 1922, the Infanticide Act was passed. The Act created the offence/defence of infanticide which was committed by new mothers who, whilst the balance of their mind was disturbed due to the effects of giving birth, killed their newly born infant. The offence was punishable by a maximum term of life imprisonment.

1.96 In 1929, the Infant Life (Preservation) Act was passed. This Act created a specific offence, with a maximum penalty of imprisonment for life, of "child destruction", which means killing a foetus while it is still inside the womb (as by deliberately kicking a pregnant woman in the stomach).

1.97 The Road Traffic Act 1956 created the offence of causing death by reckless or dangerous driving. The offence was introduced because juries had proved unwilling to convict defendants of manslaughter when the killing took place through a driving offence. Until that point, the law had concentrated on penalising driving according to its manner rather than focusing on the result of bad driving.

1.98 In 1957, Parliament passed the Homicide Act. This Act made several important changes to the law of murder:

(1) It substantially narrowed the scope of the death penalty in murder cases (the death penalty was abolished entirely for murder in 1965).

(2) It abolished the arbitrary rule that someone is automatically guilty of murder whenever they kill – even accidentally – in the course of a "felony" (a more serious kind of criminal offence).

(3) It created the partial defences to murder of "diminished responsibility", and of killing in the course of a suicide pact.

(4) It also broadened the defence of provocation to cover provocation by words (as well as by blows or the threat of violence).

1.99 As a response to public pressure, the Suicide Act 1961 abolished the rule making it, in theory, attempted self-murder to attempt suicide. The Act also created the offence of complicity in suicide. In 1996, the Law Reform (Year and a Day Rule) Act was passed. This Act rid the law of the requirement that death must occur within a year and a day of the mortal wound for the defendant to be liable to conviction for murder.

1.100 In 2003, Parliament passed the Criminal Justice Act. The Act sets out the principles governing how a judge should determine the length of the period that a convicted murderer must spend in prison before he or she is eligible for release on licence. It does so by providing three recommended "starting points" for particular kinds of cases, and then listing aggravating and mitigating features which may result in the starting point being adjusted either upwards or downwards. The aggravating features bear some resemblance to the cases for which the death penalty was preserved between 1957 and 1965.

1.101 The Domestic Violence, Crime and Victims Act 2004 created a new homicide offence of causing the non-accidental death of a child or vulnerable adult.

1.102 Having come about over a long period of time, as a response to what appeared to be pressing contemporary problems, these developments do not add up to a coherent law of homicide. There might, for example, have been no need for the creation of the offence of infanticide in 1922, had the partial defence of diminished responsibility – not introduced until 1957 – already existed as a basis for addressing the problems posed by mothers who kill their infant children. Had the crime of complicity in suicide already existed in 1957, rather than having to await creation in 1961, at least some killings in the course of a suicide pact might have been treated in law as assisted suicides, rather than as the much more serious offence of manslaughter.

1.103 The 2003 Act seeks to address some of these issues through its list of mitigating features (the mitigating features largely reflect current sentencing practice). The 2003 Act mentions, for example, that it is to count as a mitigating feature that the offender "suffered from mental disorder or disability which lowered his degree of culpability", and that the offender acted on a "belief ... that the murder was an act of mercy". In such cases, however, it can become hard intelligibly to relate the mitigating feature to the starting point that the Act would otherwise suggest is appropriate in such a case. We explain why in the next sub-section.

The Criminal Justice Act 2003 and the law of homicide

1.104 Section 269 of the 2003 Act is concerned with the determination of the minimum term that a convicted murderer must spend in prison before he or she is eligible for release on licence. It requires the trial judge to set a minimum term that reflects the seriousness of the murder or (where applicable) the seriousness of the murder and any other offences that the murderer has also committed. When the offender is over 21 years of age, the section confers a power on the trial judge to stipulate that the murder is so serious that the offender should never be considered for release on licence.

1.105 Section 269 further provides that the "seriousness" of the offence is to be determined by having regard to the principles set out in schedule 21. These principles are very important and receive detailed consideration here. The principles require the trial judge to adopt a two-stage approach. Guided by the principles, he or she first identifies what the "starting point" of the minimum term should be. Having identified the starting point, the judge, again guided by the principles, identifies any aggravating and mitigating features of the murder. Finally, the judge decides whether, and how much, to depart from the starting point.

1.106 According to the schedule, some cases of murder are ones in which the trial judge should recommend that the offender serve at least thirty years in prison or even the whole of the rest of his or her life ("whole life" minimum term). Broadly speaking, these cases encompass those that would still have attracted the death penalty after the 1957 Act until 1965 when the death penalty was finally abolished.

1.107 Amongst the cases identified for "whole life" minimum terms are the murder of two or more people (if this involved premeditation, abduction, or sadistic or sexual conduct) or the murder of a child (if this involved abduction, or sexual or sadistic motivation). Amongst the cases that should attract a recommended minimum term of at least 30 years' imprisonment, are the murder of a police or prison officer acting in the course of his or her duty, murder involving a firearm or explosive and murder committed for gain. In other cases of murder, the offender should serve at least 15 years in prison subject to adjustment for any aggravating or mitigating features of the case.

1.108 For example, the starting point for a murder involving a firearm is 30 years' imprisonment. A significant degree of planning is mentioned as an aggravating factor that would warrant moving above this starting point. The fact that the offender was suffering from a mental disorder or was provoked, albeit not having a partial defence on these grounds, are mentioned as mitigating features that would warrant dropping below this starting point.

1.109 The approach adopted in schedule 21 has advantages over comparable provisions in the USA. Like schedule 21, it is common in states in the USA to identify for especially severe treatment "worst case" murders, such as the murder of a child, a judge or a police or prison officer. However, many states in the USA do this by dividing murder into a number of categories defined by law as separate offences for the purpose of justifying especially severe (or, indeed, lenient) treatment.^[32] In contrast, the categories in schedule 21 only apply to sentencing.

1.110 The use of different categories of offences in some states in the USA can too often lead to a situation in which an answer to the question whether an offender is eligible for the severe treatment reserved for a particular category of murder depends on legal niceties.

1.111 The 2003 Act avoids the prospect that eligibility for particular (severe) sentences will become dependent on legal niceties by avoiding the proliferation of legally defined categories of "worst case" murder. Instead, the 2003 Act adopts a more flexible approach. As indicated above, it simply has different starting points for fixing the minimum custodial element which can then be adjusted according to any aggravating and mitigating features that are present.

1.112 As we noted in paragraph 1.3, we will not be giving further consideration to 'aggravating' features of murder. There are, though, some serious drawbacks to the way the guidelines of the 2003 Act relate starting points to mitigating factors. Without reform of the law of murder, it will be almost impossible to rid the law of these drawbacks. The problem is that the suggested starting points sit very uncomfortably alongside the mitigating features. Here are some examples.

1.113 The Act provides for a 30-year starting point for murders where firearms are used. The lawful ownership of shotguns is not unusual amongst farmers. So, if a farmer were to kill his terminally ill wife, with her consent, by shooting her, the starting point for sentencing would be 30 years' imprisonment, subject to the mitigating feature that the farmer believed the killing to be an act of mercy. Indeed, if there was planning or premeditation (which there almost certainly will have been) that is, according to the Act, an aggravating feature that should raise the starting point to a "whole life" sentence.

1.114 Yet, had the farmer killed his wife as part of a suicide pact, his crime would have been manslaughter and he could have expected a sentence ranging from a non-custodial penalty to, perhaps, three years' imprisonment. The problem in such a case, then, is that under the 2003 Act this kind of murder – deliberate and with a firearm – has a starting point of 30 years' minimum imprisonment or more. On these kinds of facts, however, the mitigating feature – that the farmer and his wife believed the killing to be one of mercy – is liable to bring the recommended minimum down by something like 80% if normal sentencing practice is maintained. This being the case, we ought to look hard at whether such a mitigating feature should take the crime outside the scope of murder altogether and into manslaughter instead.

1.116 Under the 2003 Act, however, the starting point for the killing of a child is fifteen years' imprisonment, and the fact that the child was in the killer's care is listed as an aggravating factor. Suppose a mother suffering from post-natal depression kills her infant when the infant is just over one-year old. This starting point (and the aggravating factor) will govern the killing, unless she can show that the depression substantially diminished her mental responsibility, and hence come within the partial defence of diminished responsibility that will reduce her offence to manslaughter.

1.117 Once again, the problem is that the starting point of the minimum term in such a case (perhaps, 20 years' imprisonment) is, under normal sentencing practice, liable to something like a 90% discount in the light of the mitigating feature (that the offender killed her infant whilst suffering from post-natal depression). So, again, it makes sense to consider whether such cases should be taken outside the scope of murder altogether by reforming the offence of infanticide.

1.118 A further point needs to be made about the way in which the 2003 Act relates to the law of homicide. It does not adequately address the most controversial of the remaining judge-made aspects of the law of murder. For example, the 2003 Act does not seek to change the definition of "murder", even though, for certain types of murder, it introduces such high starting points for fixing the minimum term of the life sentence. At common law, however, murder is committed not only when there was an intention to kill but also when there was an intention to do only serious harm to the victim.^[33] It is inappropriate to treat someone who did not intend to kill, say, a child or a police officer in the same way as someone who did intend to kill such a person when deciding how long they should spend in prison before being eligible for release. This is so even if a very serious crime is committed in both cases. Consequently, the 2003 Act treats the fact that there was only an intention to do serious harm as a "mitigating factor" which can justify setting a lower minimum term.

1.119 Yet, it seems that it was only a misunderstanding between Parliament and the judiciary, prior to the passing of the 1957 Act, that resulted in an intention to do serious harm ("grievous bodily harm", as it is sometimes known) remaining an element of culpability sufficient to convict of murder when death resulted. The Royal Commission on Capital Punishment 1949-1953 ("the Royal Commission"), whose recommendations in 1953 formed the basis for the reforms in the1957 Act, was strongly influenced by evidence about the fault element of murder that it received from the then Lord Chief Justice. The Lord Chief Justice told the Royal Commission that to be guilty of murder in law, "a person who wittingly inflicts grievous bodily harm must know that he is endangering life" (our emphasis). He assured the Royal Commission he would direct a jury to that effect.^[34]

1.120 Accordingly, the Royal Commission explicitly declined to make any recommendation for change to the mental element in murder, believing it to be satisfactory. However, shortly after the passing of the 1957 Act, the Lord Chief Justice himself gave the leading judgment in a case, Vickers,^[35] which was at odds with what he had told the Royal Commission. The judgment in that case authoritatively established that murder is committed when a defendant who has killed intended to inflict serious harm, even in the absence of knowledge or belief that the victim's life would be endangered by his or her actions.

1.121 Within a month of the judgment in Vickers, there was further debate on the issue in Parliament, some of it acrimonious. The opposition claimed to have been misled in Parliament by the Attorney-General into thinking that murder was restricted to instances where there was at least foresight on the defendant's part that life would be endangered by his or her action.

1.122 As in Lord Coke's day, then, a highly controversial piece of judicial law making was causing problems within the law of murder. Subsequently, judges fully acknowledged that there was a discrepancy between what the Lord Chief Justice had told the Royal Commission the fault element in murder was and what he had said it was in Vickers. However, as with Lord Coke's fatal error, later judges did not change the law to make it consonant with what had been the Royal Commission's and Parliament's understanding, even when the opportunity to do so arose.^[36]

1.123 Had the misunderstanding between the Royal Commission and the Lord Chief Justice not occurred, a conviction for manslaughter would have been the result when there had been an intention to do no more than serious harm. In consequence, cases in which a killing was the result of such an intention would not have fallen within the reach of the 2003 Act at all. They would have been dealt with as bad cases of manslaughter, doubtless warranting a long custodial sentence, but not as cases of murder. We are provisionally proposing recommending that they are treated as instances of "second-degree murder" and, therefore, outside the scope of Schedule 21 of the 2003 Act.

OUR PHILOSOPHY: PROMOTING COHERENCE IN THE LAW

1.124 A key theme of our reform proposals will be the need to provide solid foundations for the main legislative pillar of the law of homicide, and for its other supporting structures. The main pillar is the 2003 Act whilst supporting structures include the Infanticide Act 1938 and the Suicide Act 1961. In essence, our view is that the earlier twentieth century Acts need thorough modernisation or refurbishment if they are to continue to stand effectively alongside the 2003 Act. More generally, the foundations we seek to provide will consist of a replacement for the 1957 Act, in the form of a new legal structure – a new Homicide Act – on the lines set out above.

1.125 At the time the 1957 Act was enacted, it was the most significant reform of the law of murder ever undertaken by Parliament. The 1957 Act confined the sentence of death to the more serious instances of murder. It also made some important changes both to the definition of murder, and to the partial defences for murder (defences that reduce the crime to the lesser offence of manslaughter).

1.126 The 2003 Act is one of the most important pieces of legislation in the history of criminal justice reform. The Act made many radical and far-reaching changes to the law of criminal evidence and procedure; but it also made perhaps the most important legislative changes to the law of murder since the final abolition of the death penalty in 1965. It brought in a new sentencing regime for murder, as discussed in paragraphs 1.104-1.123.

1.127 The radical reforms effected by 2003 Act presuppose clear and coherent definitions of murder and of the partial defences to murder. According to the 2003 Act, only those who have committed "murder" will be eligible for the severe sentences the Act recommends for the worst cases. For example, the manslaughter of a police officer, although a serious offence, is not governed by the 2003 Act and would not necessarily be approached in the same way for the purposes of sentencing.

1.128 Unfortunately, although twentieth century legislation on murder brought in many valuable reforms, the definitions of murder and of the partial defences remain misleading, out-of-date, or both. They are, quite simply, not up to the task of providing the kind of robust legal support on which the viability of the 2003 Act depends.

1.129 It is worth noting that the problems we discuss were identified by a Parliamentary Select Committee as long ago as 1874. The Committee said:

If there is any case in which the law should speak plainly, without sophism or evasion, it is where life is at stake; and it is on this very occasion that the law is most evasive and most sophistical.^[37]

1.130 A few years later, former Prime Minister W E Gladstone indicated his willingness to promote the enactment of a Homicide Act, based on what the Criminal Law Commissioners had proposed, to rationalise the law; but nothing was done.^[38] That led one criminal lawyer to remark, at the beginning of the twentieth century, that a belief that a criminal code would be passed in the House of Commons was as naïve as "expecting to find milk in a male tiger".^[39]

1.131 We hope that, at the beginning of the twenty-first century, an expectation that the law of homicide should be rationalised by statute is not quite that naïve.

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Note 1   Criminal Justice Act 2003, s 269, sched 21.    [Back]

Note 2   Eg, on murder see, Woollin [1999] 1 AC 82 (HL); and on manslaughter see, Adomako [1995] 1 AC 171 (HL); (Morgan) Smith [2001] 1 AC 290 (HL).    [Back]

Note 3   See Part 3.    [Back]

Note 4   See Part 3.    [Back]

Note 5   Home Office, Reforming the Law on Involuntary Manslaughter: The Government’s Proposals (2000). Example 1 is not discussed in those proposals. It is based on Franklin (1883) 15 Cox CC 163.    [Back]

Note 6   Partial Defences to Murder (2004) Law Com No 290, para 3.168.    [Back]

Note 7   Ibid. See Part 6.    [Back]

Note 8   Criminal Justice Act 2003, s 269, sched 21, para 4(2)(a).    [Back]

Note 9   For simplicity’s sake, we are provisionally of the view that the partial defences should all reduce “first degree murder” to the same lesser crime: either “second degree murder”, or manslaughter. Making a distinction between defences that reduce “first degree murder” to “second degree murder” and defences that reduce “first degree murder” to manslaughter would require the jury, in cases where more than one defence is pleaded, to agree which defence has been successfully pleaded. This is highly undesirable because a jury may agree that the crime should not be “first degree murder”, but may disagree on the reason (some jurors favouring, say, diminished responsibility, and other jurors favouring provocation). In such cases, the verdict should be the same whichever defence is successful, so that such disagreements do not result in an inability to reach a verdict. See Appendix H.    [Back]

Note 10   See A Ashworth, “The Elasticity of Mens Rea” in C Tapper (ed), Crime, Proof and Punishment (1981).    [Back]

Note 11   Homicide Act 1957, s 1.    [Back]

Note 12   3 Co Inst 47.    [Back]

Note 13   Re A [2001] Fam 147 (CA).    [Back]

Note 14   Eg, the rule that death from a wound must occur within a year and a day was abolished by the Law Reform (Year and a Day Rule) Act 1996.    [Back]

Note 15   Hyam [1975] AC 55 (HL).    [Back]

Note 16   Moloney [1985] AC 905 (HL),    [Back]

Note 17   For detailed consideration, see Part 3.    [Back]

Note 18   For a discussion of “intention”, see Part 4.    [Back]

Note 19   See the discussion in Part 2.    [Back]

Note 20   See Partial Defences to Murder (2004) Law Com No 290, Part 3; and Part 6 below.    [Back]

Note 21   A-G for Jersey v Holley [2005] UKPC 23, 3 WLR 29; (Morgan) Smith [2001] 1 AC 146 (HL).    [Back]

Note 22   Partial Defences to Murder (2004) Law Com No 290, Part 3.    [Back]

Note 23   Ibid, Part 4; and Part 6 below.    [Back]

Note 24   Clegg [1995] 1 AC 482.    [Back]

Note 25   Partial Defences to Murder (2004) Law Com No 290, Parts 3 and 4.    [Back]

Note 26   See Part 7.    [Back]

Note 27   Howe [1987] AC 417 (HL).    [Back]

Note 28   Graham [1982] 1 WLR 294 (CA); Howe [1987] AC 417 (HL).    [Back]

Note 29   Homicide Act 1957, s 4.     [Back]

Note 30   See Part 8.    [Back]

Note 31   C v DPP (1996) AC 1, 28, per Lord Lowry.    [Back]

Note 32   A summary of Professor Claire Finkelstein’s analysis of American law is in Appendix D. We intend to publish the full analysis on our website shortly, together with other comparative law papers.    [Back]

Note 33   As indicated when discussing Lord Coke’s definition of murder, in paras 1.49-1.62.    [Back]

Note 34   Royal Commission on Capital Punishment, Royal Commission on Capital Punishment 1949-1954: Report (1953) Cmnd 8932, paras 106/472.    [Back]

Note 35   [1957] 2 QB 664.    [Back]

Note 36   Hyam v DPP [1975] AC 55; Cunningham [1982] AC 566.    [Back]

Note 37   Special Report from the Committee on Homicide Law Amendment Bill (1874) 314.    [Back]

Note 38   See K J M Smith, Lawyers, Legislators and Theorists: Developments in English Criminal Jurisprudence 1800-1957 (1998) 149.    [Back]

Note 39   Ibid.    [Back]

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You are here: BAILII >> Databases >> The Law Commission >> A New Homicide Act For England And Wales? (Consultation Paper) [2005] EWLC 177 (20 December 2005) URL: http://www.bailii.org/ew/other/EWLC/2005/177.html Cite as: [2005] EWLC 177