Murder:The Need for Reform

In 2005, the Law Commission published a paper entitled "A new Homicide Act for England and Wales?" which proposed a sweeping reform of murder, voluntary and involuntary manslaughter and proposed a 3 tier structure for homicide offences. Many academics were broadly supportive of the three tier structure although there were some disagreements about the details.

The LC also published Murder, Manslaughter and Infanticide in 2006 and pointed out many problems concerning the law of murder. "The law governing homicide in England and Wales is a rickety structure set upon shaky foundations."

• They have been developed bit by bit in individual cases and is not entirely coherent. The meaning of 'intention' has developed in this way causing major interpretation problems. Intention is a concept which affects all specific intent offences but most of the cases heard by the HL have involved murder. Consider Moloney 1985 and Woolin 1998.
• Ds can be convicted of murder even though they only intended to cause serious harm.  LC pointed out that Parliament, in passing the Homicide Act 1957, never intended a killing to amount to murder unless D realised that his conduct might cause death. Th. present offence of murder is too wide and in some cases D might not even realise death could occur yet is still guilty of murder as the person who deliberately sets out to kill.
• Defence of duress is not available to murder/attempted murder. Sometimes unfair Wilson 2007.
• Mandatory life sentence does not allow sufficient differentiation to reflect varying levels of blameworthiness as a murder charge= mandatory life sentence. Those who are malevolent Bellfield 2008 are treated the same as those who are compassionate Cocker 1989. . However judge has discretion with attempted murder.

New three point test

• First degree murder (mandatory life)

Cover unlawful killings where D was proved to have intent to kill or intent to do serious injury and D was aware ther conduct involved a risk of causing death.

• Second degree murder (discretionary life)

All unlawful killings where D had the intent required for first degree but pleaded one of the partial defences, had the intent to cause serious harm, intend to cause some injury with the awarenesss of the risk of death. 

• Manslaughter (discretionary life)

Would cover Gross Neg and Criminal Act, where D only intended harm not serious harm.

2005 LC paper proposed a statutory definition of intention as:

"D acts intentionally with respect a consequence if he acts

• in order to bring about it; or
• knowing that it will be virtually certain to occur; or
• knowing that it would be virtually certain to occur if he or she were to succeed in his or her purpose of causing some other result."

This would equate foresight of virtually certain consequence with intention, as opposed to it being merely evidence of intention. However in 2006 the LC preferred an alternative model; the codification of Woollin 1998 which would mean that foresight of a virtually certain consequence would remain evidence of intention, allowing juries to 'find' it.

In 2005 the LC recommended that duress should become a new partial defence to first degree murder- available where D was threatened with 'death or life threatening harm.' By 2006, the LC's position had changed and they now recommended that duress should be a full defence to murder. This would mean Howe 1986 and Gotts 1992 would be overruled. The government's response to the proposals does not address either of these suggestions.

There was also a proposal to abolish the mandatory life sentence in order to deal with cases where the defences were being too leniently applied in order to give the judge discretion when sentencing the defendant. The government are reluctant to abolish the mandatory life sentence and this reform is unlikely to be implemented.

There have been calls for the abolition and replacement of the offence of murder and all forms of manslaughter. Advocates of the abolition would replace these with a single offence of "criminal homicide" or "unlawful homicide", the sentence for which would be completely dependent upon the circumstances of each case. All those who killed unlawfully would be guilty of the same offence and would bear the same label. However the LC said they would not make the proposal for the following reasons:

• There should by different offences to reflect the different circumstances and the culpability of those who kill unlawfully is not uniform.
• A person who has committed a wrong that is qualitatively different from a person who unintentionally but culpably kills another person.
• Issues that currently surface at the trial stage would emerge at the sentencing stage with the accused seeking to persuade the judge that a lower sentence should be passed.

Government issued a consultation paper "Murder, manslaughter and Infanticide:proposals for reform of the law" which did not rule out the reclassification of murder, but stated this idea "may be considered at a later state"- which perhaps means never.