21st CENTURY HOMICIDE
Murder, Manslaughter and Infanticide
On the 29 November 2006 the Law Commission published it’s proposals for modernising homicide – it’s the first such report for over 50 years.
Professor Jeremy Horder, the Commissioner who led the project, said:
“The Law Commission has previously said that the law of murder is in a mess. The law can be unclear, unfair, or too generous to killers. Juries have too few choices between verdicts to reflect how blameworthy the offender really was. This frequently leads to judges having an inadequate basis on which to sentence offenders. Victims’ families also rightly object to the excessive breadth of the different kinds of manslaughter, as compared with the single offence of murder.“The overwhelming majority of our consultees favoured restructuring the law so as to address these serious and persistent problems. We believe that our recommendations, and in particular our recommendation for clearly defined offences of first degree and second degree murder, will go a long way to putting right these injustices and inadequacies in the law.”
The Law Commission’s recent proposals for reform of the Law of Murder is a fairly radical set of proposals. The most significant of these reforms is the decision to create a new framework of first degree and second degree murder alongside a revised definition of manslaughter in addition to the desire to implement a three tier structure of homicide. This essay will consider the various provisions made by the Commission , evaluating whether they will improve the gaps in the current law or conversely simply exacerbate them.
Amongst the several proposals, is the recommendation for the inclusion of a new Homicide Act for England and Wales replacing the Homicide Act 1957. The mistake is that the sentencing guidelines assume that murder has a clear structure which mirrors the degree of fault, providing the necessary defences. The problem with the homicide offences stems from the fact that the existing offences of murder and manslaughter are too broad. Under the current law, one can be liable for murder not only if he or she intentionally kills, but also if he or she kills whilst intentionally inflicting harm which the jury deems to be serious (R. v. Buzzanga & Durocher.) This would result in prosecuting somebody who reasonably believed that nobody would be killed by their conduct and that the harm they were intentionally inflicting was not serious by placing them in the same offence category as a serial killer. Thus the Law Commission seeks to rationalise homicide through legislation. This new act would provide clear and coherent definitions of the homicide offences. Indeed at present the structure of offences consists of two general homicide offences; murder and manslaughter it accommodates the changing nature of criminal fault and the inclusion of new partial defences.
The proposed remedy is to bring greater order, fairness and clarity to the law of homicide by implementing a three tier structure of general homicide. The aim is to create "a ladder of offences". There would be three tiers. The top level would comprise murderers who intended to kill. This tier would retain the life sentence, but only because ministers insisted when setting up their review, that the mandatory sentence must be retained for the most serious level. A discretionary life sentence will still be possible in the second tier, involving killings where there was no intent but "reckless indifference". This category will include cases involving the defence of provocation, diminished responsibility and duress. The commissioners produced a succinct defence for this second level offence: "Taking a risk, even a high risk, of killing someone is recklessness and is very serious but it is not the same as the deliberate taking of life." This separation is in line with polling evidence, which showed the public already incorrectly believed that the offence of murder was restricted to an intention to kill. The third tier (manslaughter) would involve killing through gross negligence or intention to cause harm, but not serious harm. In light of these proposals an intention to commit grievous bodily harm would no longer attract a life sentence, under this proposal, fewer charges of murder will be made and this may not be viewed as a positive indicator due to the significant rise in crime over the past few years. In addition to the three tier system, the Law Commission is eager to proceed with a fair labelling system which will be divided into two principles; namely the correspondence principle and the moral equivalent principle. The fault element here must correspond to the prohibited conduct thus promoting fairness. The latter will however make sure that offences in the same tier are equivalent no only to the punishment but also in terms of moral severity. Again, such a principle can only improve the current system by tightening it and thus eliminating any existing flaws. It should be noted that the reclassification is not, as Victims of Crime suggested, "a licence to murder". Some defendants currently charged with manslaughter would, under this plan, face the more serious charge of second-degree murder. Other defendants, who are charged with murder but found not guilty because of the seriousness of the charge, would be caught by the second-tier murder charge. Thus it does appear to be the case that the Law Commission has made significant efforts to make sure that the gaps in the law are filled in through the correct amount of deterrence for offenders. On the other hand, it should be made clear that the creation of a further tiers or specific offences will be undesirable because of the ensuing complexity associated when there are a myriad of defendants potentially making conflicting claims, in addition to threats to the jury-unanimity.
The Home Office has stipulated a condition; that they must not intervene with issues relating to mandatory life sentence. In appraising the report, it can be said that the Law Commission has successfully dealt with this condition. Although The Law Commission argues that there is a significant moral distinction between the person who kills having intended to kill and the person who kills having intended grievous bodily harm, it makes it clear that the mandatory life sentence should in theory be reserved for the former. Indeed this issue has caused much controversy with many organisations who dispute this to a great extent. For instance, the Conservatives’ stance has been “murder should mean life.” This can be corroborated due to Shadow Attorney General Dominic Grieve’s statement: “… we feel the taking off human life by murder is an extremely serious matter and that usual sentence should be one of life imprisonment in such cases…” Similarly The Association of Chief Police Officers declared that it would not support any “diminution of offences of murder.” The Support After Murder and Manslaughter charity also feel very strongly about this issue, stating that “If it’s murder, whether it’s murder one or murder two, it should be a mandatory life sentence.”
Currently there are three partial defences to murder: provocation, diminished responsibility and killing in pursuance of a suicide pact. If one is acquitted successfully the result would be manslaughter and not murder. The predicament which stems from the issue of provocation is that this partial defence consists of a mixture of both law approved by judges and legislative provision. A particular discrepancy for the Law Commission which arises out of the current law, is that one is entitled to have evidence that he or she was provoked to lose self-control put before the jury, but not be allowed to have a defence to murder at all if the killing was a fear induced reaction to a threat of future violence. In Doughty, the judge refused to leave it to the jury to decide whether there was provocation. The Law Commission’s reform tackles to prevent this from occurring again. With a successful plea, the charge is reduced from first degree murder to second degree murder. At present, according to research by Professor Barry Mitchell and Dr Sally Cunningham provocation is the “second most popular plea in the sample of murder cases.” The fact that public surveys were undertaken is an indicator that the Law Commission understands that it is ultimately the people who are bound by the law and hence it is vital to hear from them. The narrowing of the fault element for first degree murder will mean that the provocation defence will be used in fewer cases, thus preventing those offenders who seek to use it in dubious circumstances to avoid the mandatory life penalty. It can be argued that such a reform will have a positive impact, especially in cases concerning minors. For example in the case of Camplin , the defendant was a fifteen year old boy who argued that he was provoked to lose self-control killing a man who had raped him. Thus in such a case there would be no purpose in passing a mandatory life penalty for first degree murder.
A further grave problem which stems from murder cases is the issue of complicity. The law currently requires the jury to ask itself whether there was an awareness of those involved yet who did not actually conduct the act itself; if there was a fundamental difference then those who were for instances acquaintances of the offender will not be guilty of the homicide offence although most likely be guilty of assault. The Law Commission however identifies this as a gap in the law as it should be made possible to convict a person who knew from the inception of the joint criminal venture that the person who committed the act was armed. Therefore the fact that they did not foresee the act from happening should not absolve them from assuming responsibility at all. The Law Commission proposes that one should be guilty of manslaughter if they were involved in a joint criminal venture with the attacker and that it should be obvious to them that the attacker may commit first or second degree murder in the course of the venture. This will thus make it increasingly difficult for one shirk responsibility for the homicide simply by denying that they knew the offender may commit murder if it was made clear to them. In appraising this provision, it appears to be the case that this solution will seek to fill the gap in the current law which allows a number of those who were complicit in the act to be absolved from responsibility.
Analogous to the problems concerning the partial defence of provocation, are problems associated with the partial defence of diminished responsibility. At the moment, the definition of ‘diminished responsibility’ lacks clarity and does not accommodate recent developments in medical knowledge and practice. The Commission seeks to improve this by modernising the definition thus making it clearer. In addition, it will have the effect of reducing first degree murder to second degree murder if the person in question is substantially impaired by an abnormality of mental function rendering it impossible for them to form a rational judgement, to understand the nature of their conduct or to control themselves at all. Although this provision is likely to be for the better, there is cause for concern that this defence could be manipulated and used by one whom intentionally tries to present themselves as having a diminished responsibility. Consultation with the Royal Society of Psychologists took place and a very thorough and careful definition of diminished responsibility has been developed thus attributing to the reports accurateness and strengths in dealing with the existing problems.
The area of infanticide is another area where the Law Commission hopes to provide a remedy. At present, it is the procedure for ensuring that evidence of the mother’s mental disturbance is heard at the trial which is causing difficulty as she may be unwilling to a subject to psychiatric evaluation. This was certainly evident in the case of Kai-Whitewind where the defendant denied killing her youngest child and refused to submit to medical examination. The solution put forward by the Law Commission is the adoption of a post-trial procedure and for the trial judge to have the power to order a medical examination of the defendant with a view to establishing whether or not there is evidence that a murder has taken place. Nevertheless the method used to obtain such an examination could be against the Human Rights Act as the defendant has not willingly subjected herself to examination.
At present, duress is no defence to murder: Howe V Gotts. This should not be the case as blame should not be attached to one’s decisions to partake in a killing under a significant amount of duress. Under the existing law the person would be complicit in the act of killing and thus would be convicted of murder. This is incorrect as he will have to receive a mandatory life penalty. Therefore the Law Commission is entirely accurate in its decision to allow for duress to become a defence to murder in some manner or form. Contained within the Homicide Act would be the extension of the full defence of duress to offences of first, second degree and attempted murder. Almost all of the consultees agreed that duress should be a full defence to the above three, though specific conditions will have to be satisfied before the defence can prevail. The burden of proof will be on the defendant to show that he or she was threatened with death or life threatening harm to carry out the act and had no possibility of seeking police protection. In the case of R. v. Carker it was made clear that duress only applies when the accused is under threats of “immediate death” or “immediate grievous bodily harm” from a person that is in the immediate presence of the accused. Indeed, this proposal should be executed as it would not be fair for one to be convicted of murder in such circumstances.
Under the proposals intent-to-do serious-injury cases should be divided into two. Cases where one not only intended to do serious injury but also was aware that his or her conduct posed a serious risk of death should continue to fall within the highest category offence. This would be justified due to the utter disregard for human life that such people possess. In addition cases where one intended to do serious injury yet was unaware of a serious risk of killing should fall along a middle tier. However, such a provision would not take into account the fact that most offenders will state in their defence that they may have intended to do serious injury while being unaware that their conduct could result in death in order to minimise their sentence. Thus the category of two-category structure of the general law of homicide is no longer fit for purpose. According to the consultees the implementation of a three-tier structure would be the best option as it is deemed better equipped in dealing with the stresses and strains on the law.
There is much controversy surrounding euthanasia; one of the leading academics David Ormerond argues that since everyone must die sooner or later “every killing is merely an acceleration of death and it makes no difference for this purpose that the victim is already suffering from a fatal disease or injury...” Therefore in Adams the presiding judge Devlin J gathered that there is no special defence justifying a doctor giving drugs which would shorten life in the case of severe pain. In R v Cox , in order to end the suffering of his patient, Dr Cox administered a drug to prevent her heart from beating. As it was not possible to prove the actual cause of death, he could not be charged with murder and instead a charge of attempted murder was instituted. It was argued that he would have been found innocent has he administered a large dose of sedative causing her to lapse into a coma even though it would have also shortened her life. The Law Commissions’ response to this issue especially in light of the Cox case has been to recommend that the Government should undertake a public consultation on whether the law should or should not recognise an offence of “mercy” killing or a partial defence of “mercy killing.” It is submitted that any such discussion must be underpinned by Article 2 of the Human Rights Act; the right to life.
Overall, it appears to be the case that the Law Commissions report will help to improve issues relating to a lack of clarity which the existing law has failed to provide. For example this is true of homicide offences of murder and manslaughter which at present are too broad. The proposed remedy of a three tier structure can indeed help to provide a coherent structure, outlining the different offences and the imprisonment duration. The fair labelling system will help to tighten the current law, making sure that offenders are given the appropriate penalty. Also, the regular consultation of members of the public and key organisations such as the Royal Society of Psychologists is evidence enough to highlight the Law Commission’s desire to implement an accurate definition of key terms such as diminished responsibility. On the other hand it must be contended that there are particular areas where further classification would be desired. This is certainly true of cases involving euthanasia and infanticide. Whether these recommendations are actually adopted will of course depend on the political climate, pressure from the media, the government of the day and the timing of the election.