Reforms - murder

The "too narrow" "too broad" debate.

Mens rea for murder narrow or broad?

Intention to kill or for other offences?

Until 1957 murder included killing during the commission of a felony, such as burglary or rape, and the mens rea required was for the ulterior offence.

This was known as constructive malice rule and there was no requirement to prove intention to kill.

It is now limited to those who intend to kill (or cause GBH) or foresee death as a virtual certainty.

Murder is a Common Law offence and has never been defined by Parliament. Consequently what constitutes murder has changed overtime.

The legislature has not been involved since 1957 and 1965, but a committee of the House of Lords reviewed the law in 1989. It consisted of 11 members of the House of Lords, with two specialist advisers, and it produced the Report of the Select Committee on Murder and Life Imprisonment (The Nathan Report).

Definition of murder is too broad

A person who kills but only intending to cause serious bodily harm - but not to kill - and who may not even foresee the possibility of death occurring can be convicted of murder.

Definition of murder is too narrow

It does not cover recklessness so a terrorist who gives a warning of a bomb but people are nevertheless killed can escape a conviction for murder.

Oblique/indirect intent has narrowed from the "natural consequence" to the "virtual certainty"

At the moment intention requires intent to kill or intent to commit GBH.

So it is possible to be convicted of murder even when there was no intention to kill.

R v Cunningham (1982) Lord Edmund Davies said

"I find it passing strange that a person can be convicted of murder if death results from, say, his intentional breaking of another’s arm, an action which, while undoubtedly involving the infliction of ‘really serious harm’ and, as such, calling for severe punishment, would in most cases be unlikely to kill. And yet, for the lesser offence of attempted murder, nothing less than an intent to kill will suffice. But I recognise the force of the contrary view that the outcome of intentionally inflicting serious harm can be so unpredictable that anyone prepared to act so wickedly has little ground for complaint if, where death results, he is convicted and punished as severely as one who intended to kill."

Law Commission Draft Criminal Code proposes new mental element

The new mental element should be:

a) intending to cause death or

b) intending to cause serious injury and being aware he may cause death.

The accused who intended GBH but was not aware he may cause death would be liable to be convicted of manslaughter instead.

Foresight of harm to equal intention

At this point it should be remembered that the law of oblique intention is law of evidence not the substantive law.

The Law Commission in common with a House of Lords Select Committee recommends that foresight of a virtual certainty should amount to intention.

This would mean that foresight would again be part of the substantive law, not merely part of the evidence.

At present, a person who kills foreseeing death or grievous bodily harm as virtually certain may be convicted of murder; under the reformed scheme such a person would be convicted of murder.

The House of Lords judgment in Woollin goes someway to achieving this reform, but the jury is still only 'entitled' to find intention and the matter is still a question of all the evidence.

Lord Bridge in R v Moloney made it clear that foresight was not intention in law; he drew a distinction between intention and recklessness. While foresight can amount to recklessness in law, in homicide cases foresight was only evidence of intention.

Only foresight of virtual certainty of death or GBH will suffice for intention, while a lesser degree of foresight will suffice for recklessness.

'Conditional' intent

A "result" may be said to be conditionally intended where it was not the actor's purpose, but was a condition of achieving that purpose.

Smith and Hogan suggest that a consequence should only be considered to have been intended if it was either the defendant's purpose, or a result which he or she knew or believed had to take place if that purpose was to be achieved.

Anything less certain than this represents a difficult boundary between intention and recklessness.

Mens rea to include recklessness

In addition to terrorists, the owners of companies who breach health and safety laws sometimes cause death(s).

The individuals responsible are rarely prosecuted, because the Health and Safety Executive prefers a persuasive approach.

It is difficult to prove who within a company had the requisite intention and corporate manslaughter cases are very seldom seen.

More here.

The law of murder is fundamentally a question of classification

At present there are two categories in English law, murder and manslaughter, and the Committee's terms of reference prevented them from proposing their amalgamation into a single category.

Their main concern, therefore, was to reconsider the murder/manslaughter boundary: is it in the right place?

A single offence of homicide or a system of classifications?

On the one hand a single offence of homicide, or unlawful killing could exist.

The state of mind or intent of the accused being relevant only to punishment.

Such a suggestion raises the question of the role of the jury, and would put more power in the hands of the judges.

On the other hand homicide could be classified introducing an offence of degrees of murder, where the prosecution are unable to establish intention in a statutory definition, but D was aware of the risk of death.

Classification

Andrew Ashworth in "Reforming the Law of Murder" [1990] Crim LR 75

The declaration principle requires that a person who has committed murder rather than manslaughter is labelled as one of the most heinous offenders against social norms.

This public process of labelling may be regarded as having a symbolic effect in society: the criminal law performs a function of social reinforcement, and it achieves this not amply by convicting offenders but by labelling them proportionately to the gravity of their wrongdoing.

The main practical effect of classifying an offence as murder is the mandatory life sentence. This means imprisonment for so long as the Home Office, on the advice of the trial judge and Lord Chief Justice, thinks fit.

The practical consequence of classifying an offence as murder rather than manslaughter is that the length of the offender's sentence is determined, not in open court by a judge subject to appeal, but in private by civil servants and a junior minister.

Abolish the mandatory life sentence

Motive is not normally relevant to murder (but see Airedale NHS Trust v Bland [1993] HL), and euthanasia (mercy killing) is still murder and carries the same sentence as terrorism, because of the mandatory sentence, so in mercy killing cases resort is made to the specific and partial defence of diminished responsibility.

The specific and partial defences available under the Homicide Act 1957 are claimed to provide what is seen by some groups as a licence to kill; for example battered women who kill their abusive partners.

The House of Lords Select Committee Murder and Life Imprisonment (1989) (The Report) recommended the abolition of the mandatory sentence for murder. So did an independent committee chaired by Lord Lane, the former Lord Chief Justice, in 1993.

The sentence would then be at the discretion of the judge, perhaps assisted by the jury classifying the offence in order of seriousness.

Lord Irvine, the former Lord Chancellor said that the mandatory life sentence for murder was "inappropriate", since "murder embraces such a multitude of diverse sins". Lord Bingham, former Lord Chief Justice argued that abolishing the mandatory life sentence would allow judges to sentence more leniently where there was "excessive response to a personal threat".

The Report (House of Lords Select Committee Murder and Life Imprisonment (1989)) also recommended the creation of a new defence where the defendant used excessive force while believing that what he did was reasonable. If that defence succeeded, it would reduce a murder charge to manslaughter, leaving the judge free to sentence according to the circumstances. An attempt was made by Private Lee Clegg to allow this defence in the Appellate Committee of the House of Lords in 1995 but it failed.

The opinion of many judges is encapsulated by the words of Lord Chief Justice Phillips in March 2007 when he questioned the logic of keeping "geriatric lifers" behind bars, or, as he put it, “paying £40,000 a year to detain in prison old men who have served most of their lives there and who no longer pose a danger to the public.”

The sentence for murder

The power to recommend a minimum period of detention has been exercised only in about 10 per cent of murder cases and "with little apparent consistency," (The Report, Para 146) betraying its origins in a parliamentary compromise. (The Report, Para 102)

Life imprisonment would be reserved

(a) for "particularly outrageous murders," and

(b) for offenders who fulfil the general criteria for the discretionary life sentence laid down in R v Hodgson, which apply to cases of mental disturbance, instability of character and unpredictability of risk.

The Tony Martin debate

The Norfolk farmer Tony Martin who shot dead a burglar and was convicted of murder (later reduced to manslaughter) marked a major development in Conservative party policy on crime. The then leader William Hague claimed that public confidence in the criminal justice system was close to collapse and pledged a series of policy changes.

Mr Hague

"But there is all the difference in the world between the career criminal who sets out deliberately to burgle a house and the terrified homeowner who acts to protect himself and his home. Unless our laws reflect natural justice, then they fall into disrepute."

"The next Conservative government will overhaul the law with a strong presumption that, in future, the state will be on the side of people who protect their homes and their families against criminals."

The current law provides substantial protection to people who kill or inflict harm while defending themselves, their property or other people, or to prevent a crime. If a defendant argues, as Tony Martin did at his trial, that he was acting in self-defence, the jury must acquit him of any crime if it believes the force he used was reasonable in the circumstances.

The onus is on the prosecution to convince the jury that the force used went beyond what was reasonable.
"Reasonable force" is not defined in law but is left to the common sense of the jury.

Making the presumption that the defendant acted in self-defence any stronger would mean sanctioning a disproportionate response, encouraging householders to use guns, electric fences and rottweilers.

It might also fall foul of the right to life guarantee in the Human Rights Act.

The Law Commission looked at parents who kill where each blames the other

When a child dies and each parent blames the other the prosecution fails.

Allan Levy QC calculates that there is only a 27% conviction rate in such cases.

The Law Commission rejected creating an offence of failing to provide an explanation of the child's death, or changes to the rules of evidence, but proposed changes to the law of manslaughter to cover such events.

A new offence to cover this situation "familial homicide" was introduced in the Domestic Violence Crime and Victims Act 2004

See here

Proposals in brief:

House of Lords Select Committee on Murder and life imprisonment.

Nathan, Lord

The main conclusions were

Judges should have discretion to treat each case according to its circumstance;
the offence of murder should be defined by statute in England and Wales;
a murder should be deemed to have occurred if the perpetrator intends to cause death, or serious personal harm which may cause death;
reckless killings can be dealt with by the law of manslaughter;
reducing murder to manslaughter in cases where death was caused by excessive force in self-defence would align the law in England and Wales to that in Scotland;
the mandatory life sentence for murder should be abolished, leading to longer sentences for worse cases;
parole should apply for life sentences as well as determinate sentences;
the decision to release a prisoner should be made by a tribunal and their decision should be final; and
families of murder victims should be kept informed of the release and resettlement plans of offenders.

The Committee also considered the defences of provocation, diminished responsibility, the offence of infanticide and mercy killings but makes no recommendations to change the law.

The Criminal Law Revision Committee in its Draft Code in 1980 proposed reforms

“a person is guilty of murder if he causes the death of another

a) intending to cause death; or

b) intending to cause serious personal harm and being aware that he may cause death.”

Home Secretary's announcement in 1983

The Home Secretary announced that he would exercise his discretion so as to ensure that certain murderers (e.g. terrorists, sexual and sadistic murderers of children, murderers of police and prison officers) would serve at least 20 years in custody.

The Divisional Court decided R v Handscomb (1987) on the role of the trial judge in fixing the time to be served by a lifer.

What killing should be included as murder?

Reckless Killing?

Intention or recklessness is found in many serious crimes such as rape, arson, assault and so on. Murder is different, since there is the offence of manslaughter with its maximum of life imprisonment to deal with reckless killings, as there is with section 18 of the Offences against the Person Act 1861 is confined to wounding or GBH "with intent," and the reckless infliction of those harms amounts to the lesser section 20 offence.

The most frequent example used of reckless killing is the terrorist bomber who places a bomb and then gives a warning, despite which death is caused by the ensuing explosion. It was this example and a number of actual cases which led Lord Goff to advocate the adoption in English law of the Scots definition of murder, which goes beyond an intention to kill and labels as murder a killing which displays "such wicked recklessness as to imply a disposition depraved enough to be regardless of the consequences."

Glanville Williams has disputed whether all the cases used by Lord Goff would be regarded as "wickedly reckless."

Its vagueness is such as to transfer too much power to the jury. It is less a rule of law than a rule permitting juries to respond to what they see as the equity of the case. As Sheriff Gordon has written in relation to Scots law: "to say that 'A is guilty of murder when he kills with wicked recklessness' means only 'A is guilty of murder when he kills with such recklessness that he deserves to be treated as a murderer.'."

What killing should be excluded from murder?

The Report sets out the argument that, once the mandatory penalty is abolished, the primary functions of qualified defences such as provocation and diminished responsibility in giving the judge a sentencing discretion fall away.

The jury's verdict would assist the judge in sentencing; and that if juries were directed not to take account of, say, provocation by reducing the offence to manslaughter they might ignore the law and even acquit entirely (The Report, Para 81-83).

The Law Commission said that an urgent review was needed because of "the breadth and depth of discontent" with the current law

Some 64 respondents out of the 146, which included 21 judges, believed a mandatory life sentence for every case of murder was "indefensible and should cease", the Commission said.

"The present law of murder in England and Wales is mess" ...

"There is both a great need to review the law of murder and every reason to believe that a comprehensive consideration of the offence and the sentencing regime could yield rational and sensible conclusions about a number of issues."

The research found that the law dealing with provocation was now

"effectively ignored and scarcely anyone has a good word for it".

The Commission acknowledged that "for a long time" it was "pessimistic about the possibility of devising a formulation for the reform of provocation" that would significantly improve the law. "…

[We] were unconvinced that there was any need for such a partial defence other than as a buffer against the harsh effect of the mandatory life sentence".

Manslaughter