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URL: http://www.bailii.org/ew/other/EWLC/2004/290(2).html
Cite as: [2004] EWLC 290(2)
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PART 2
THE SCOPE OF OUR CURRENT TERMS OF REFERENCE AND OF POSSIBLE FUTURE WORK
2.1 As we explained in Consultation Paper No 173[1] and as appears from our terms of reference[2] the scope of this project is limited to consideration of two of the existing partial defences to murder, provocation and diminished responsibility, and one possible additional partial defence, excessive use of force in self-defence. Our terms were not limited merely to considering reform of those two existing partial defences but, in addition, included consideration of their abolition. 2.2 In this report, we make specific recommendations in respect of each of the matters that were referred to us. We recommend no change to the law of diminished responsibility for the reasons that we explain in Part 5 of this report. We make recommendations for the reform of provocation in three ways:Introduction
(1) We recommend that it be extended so as potentially to be available to certain defendants who kill in response to fear of serious violence to themselves or another in circumstances in which such a partial defence might not be available to them upon a proper application of the present law.
(2) We recommend that the defence of provocation be more tightly drawn so as to prevent it being advanced in certain cases where presently it is available.
(3) We recommend an explicit power in the court to withdraw the issue of provocation from the jury. Currently the issue has to be left to the jury whenever a very low evidential hurdle is surmounted.2.3 We are not recommending any separate partial defence to murder based on the excessive use of force in self-defence. We believe that our recommendations for reformulating the defence of provocation will cater for those cases involving the use of force in self-defence where it would be appropriate for there to be a partial defence to murder. 2.4 We believe that our recommendations would be a significant improvement of the law. The partial defence of provocation would apply more accurately to provide a partial defence to murder for those who should have one and to deny it to those who should not. 2.5 We are well aware that the overwhelmingly important function of provocation has always been as a means to avoid a mandatory sentence (whether the death penalty or a penalty of life imprisonment) for cases in which the conduct and mental elements for murder are satisfied. It is for this reason that the law of provocation has been placed under increasing pressure to accommodate cases in which it may be considered that the mandatory life sentence is a disproportionate and blunt instrument. The present law reflects a fierce tension between two views. The first holds that:
Murder is a uniquely heinous crime and that a mandatory sentence of life imprisonment is a proper and justifiable expression of public repugnance towards anyone who has intentionally taken the life of another.[3]2.6 The other view rejects this, particularly as the law of murder is presently formulated:
Murder, as every practitioner of the law knows, though often described as one of the utmost heinousness, is not in fact necessarily so, but consists in a whole bundle of offences of vastly differing degrees of culpability, ranging from brutal cynical and repeated offences like the so called Moors murders to the almost venial, if objectively immoral, 'mercy killing' of a beloved partner.[4]2.7 In this Part we investigate the case for a thorough consideration of the law of murder and the sentencing regime which should apply to it. We first look at the way in which the consultees to Consultation Paper No 173 responded to our limited terms of reference. We then examine, in some detail, evidence of considered public attitudes towards the supposedly "uniquely heinous" offence of murder. We consider the ways in which that offence has varied in its content throughout history and across jurisdictions. Finally, we explore the difference that a conviction for murder or manslaughter on the grounds of provocation makes in practice to an individual defendant. 2.8 We conclude that there is a need for a thorough consideration of the constituent elements of murder and its sentencing regime. Furthermore, we have doubts as to whether the proposals that we make in this report for the reform of the law of provocation will achieve their purpose in the long term unless there is a re-examination of the surrounding law of murder. We are acutely aware of the history of section 3 of the Homicide Act 1957.[5] It has developed in ways which we do not believe were intended at the time of its enactment. It has been so subject to pressure to accommodate "hard" or "deserving" cases that in Smith (Morgan)[6] each of their Lordships cast doubt on the usefulness of the concept of "the reasonable man" which lies at its heart. Following this lead the current specimen direction on provocation suggested to trial judges by the Judicial Studies Board[7] contains no mention of that concept. Thus, the terms of section 3 are now, in large measure, effectively ignored and scarcely anyone has a good word for it. If the section is now amended in accordance with the principles that we recommend but there is no re-examination of the surrounding law of murder, there will be similar pressure to expand the reformed defence of provocation or the defence of diminished responsibility, or both. It may be possible to devise a formula that could withstand such pressure by making it highly prescriptive. However, we believe that such a formula would be too rigid and inflexible to be of use. Whilst we make our recommendations in the belief that the law will be greatly improved by their adoption, we do not envisage that alone they will make the law of murder in England and Wales satisfactory.
The outcome of the consultation
2.9 Of necessity, consideration of the abolition of provocation and/or diminished responsibility also required us to have regard to the impact of the abolition of either of them on the continuation of the mandatory life sentence which presently applies on any conviction for murder. Accordingly, in Consultation Paper No 173, we posed certain general questions designed to encourage consultees to address the reform and the abolition options.[8] On provocation we invited them to consider: whether the present law was flawed and if so, whether it was beyond organic reform by the courts; whether it was so flawed that it should be abolished and whether that would need to be accompanied by abolition of the mandatory sentence for murder. For diminished responsibility we posed questions on similar issues.[9] 2.10 On provocation the response was overwhelming that the law was flawed to the extent that it was beyond reform by the courts. A small number of consultees favoured abolition of provocation regardless of the retention or abolition of the mandatory life sentence.[10] Approximately twice as many consultees favoured abolition but only if the mandatory life sentence were also abolished.[11] There was a third group, about equal in number to the second, who did not favour abolition but favoured reform.[12] 2.11 On diminished responsibility, only one respondent was in favour of its abolition regardless of the continuation of the mandatory life sentence. Twenty-five favoured its abolition in the event of the abolition of the mandatory life sentence.[13] Forty-four were in favour of its retention whether or not the mandatory sentence was abolished.[14]The questions we posed
2.12 By far the strongest message that emerged from the responses concerned matters which we had not addressed in Consultation Paper No 173 and upon which we had not posed any questions. Many consultees took the opportunity not only to address the questions which we had posed, but also to express in the clearest of terms their views on the matters which they felt lay at centre of the problems with the current partial defences, but which did not fall within our terms of reference. 2.13 Those matters were the pressing need for a review of the whole of the law of murder rather than merely some of the partial defences to murder and the question of the mandatory sentence of life imprisonment for every case of murder. 2.14 On the former, 38 consultees across the whole range of individuals and interest groups which responded[15] expressed the view that there should be a review of the law of murder and, in particular, the ambit of the offence. Many of them indicated the way in which they would wish the offence to be defined. Others indicated that, whatever may be the appropriate definition for the basic offence of murder, the offence should be subject to grading so as to mark off the most heinous examples of the offence for sentencing purposes. A small number of eminent consultees criticised us for having accepted limited terms of reference which they feared would result in an inadequate "patching" exercise. 2.15 On the latter, the response was even more compelling. Sixty-four consultees expressed the view that, whatever may or may not be done about the partial defences, the application of a mandatory life sentence to every case of murder was indefensible and should cease. These views were expressed across the full range of consultees.[16] 2.16 A point emphasised by some consultees was the difficulty of understanding the present law. In this respect our discussions with Victim Support and with Support after Murder and Manslaughter (SAMM) were of particular significance. They highlighted the situation where a defendant is charged with murder and is subsequently convicted of manslaughter, whether by jury verdict or after a plea has been accepted. There can be an acute sense of let down for the victim's relatives if, as Victim Support said was frequently the case, they are unable to understand the reason for such an outcome. Part of this concern might be addressed by a more careful explanation of the law and the reasons for the decision by the Crown Prosecution Service. Nonetheless we are in no doubt after our meetings with these bodies that much of the distress is caused by the complexity and lack of transparency in this area. If the law itself were coherent then decisions, which might be difficult both to take and to accept, would at least be capable of being understood and unnecessary distress avoided.Response to issues not raised by us
2.17 Caution must be exercised in drawing conclusions from these responses. They were unsolicited. We did not pose any questions or provide options so as to enable the views to be systematically collated or evaluated. For example, on the structure of homicide offences the responses expressed a wide range of views, and none on what specifically should be the definition or components of murder or on whether or not the offence should be graded. On the sentencing issue, it was not clear whether those who were against the mandatory sentence were against the concept, or the current broad application of it to cases which were, in relative terms, lacking in moral culpability. Similarly, although there was a very small minority of consultees who expressed reservations about a straightforward abolition of the mandatory life sentence,[17] it seems that they were not expressing support for the retention of the mandatory sentence for all cases of murder under the current law. 2.18 Nonetheless, and bearing in mind the above reservations, we do regard this strong expression of views by our consultees as salutary and influential upon our work in the following ways:Conclusions
(1) We acknowledge the breadth and the depth of discontent with the substantive law and sentencing regime.[18]
(2) In making our recommendations on provocation, diminished responsibility and excessive use of force in self-defence, we have been careful only to make those recommendations which we believe will significantly improve the law based on the current law of murder and sentencing regime.
2.19 There is no doubt that some cases of alleged murder arouse public passions to a far greater degree than any other offence. Public attention naturally tends to focus on the most lurid or shocking cases. 2.20 We have discovered in the course of this consultation that there is profound ignorance of the breadth of unlawful and lethal conduct which falls within the meaning of murder, and of the circumstances in which certain defences, such as self-defence, may succeed. This is unsurprising as the classic description of murder as "unlawful killing … with malice aforethought", which is the most resonant phrase associated with the offence, is completely misleading as to the range of conduct which may constitute the offence. A person may be guilty of murder even though he neither intended to kill nor acted in a premeditated way. 2.21 Given that public perceptions about what murder involves are inaccurate and unrealistic, we suspected that public debate about the appropriate sentencing regime for murder might be conducted in equally distorted and unrealistic terms. With a view to ascertaining what properly informed public reactions might be to a range of conduct which would be capable of constituting murder as the law presently stands, we commissioned Professor Barry Mitchell of Coventry University to undertake the qualitative public attitude research which forms Appendix C to this report. In this Part we draw certain conclusions from that research.Public perceptions of murder
2.22 Professor Mitchell presented his interviewees with 10 scenarios and with variations in respect of some of them. In each case the defendant could, presently, have been convicted of murder in which case he or she would have received a mandatory life sentence. It is clear that the interviewees considered these instances as representing a very wide spectrum of culpability.Conclusions to be drawn from Professor Mitchell's research
Can we ascertain any features which place an offence at the more heinous end of the spectrum?
2.23 One feature which seems to have been regarded as marking an offence out as more serious than others was that of premeditation. It is present in its unalloyed form in scenario E ("the contract killing").[19] It is also present in scenario H ("the jealous husband")[20] where the form of killing (by poisoning) seems to enhance its gravity. Similarly the two versions of scenario J ("the cuckolded husband" and "the taunted husband" respectively)[21] seem to bear out the impact of premeditation to aggravate and a spontaneous outburst to mitigate the gravity of the killing. The second variation in scenario C ("the attempted rape/burglary")[22] further confirms that premeditation is regarded by interviewees as an aggravating factor. This aggravating feature is also present in the responses to scenario D2 ("the noisy neighbour")[23] and scenario F ("the argument").[24] In these scenarios the carrying of a weapon evidences such aggravating premeditation. 2.24 Premeditation, however, does not always act as an aggravating feature.Premeditation
Scenario I ("the mercy killing")[25] is a case where there is not only an intention to kill but also where the killing is foreseen and, indeed, the subject of previous discussion. The decisive feature in persuading interviewees to regard this killing as by far the least blameworthy seems to be that the killing, deliberate and premeditated as it was, was in response to the victim's request to die.
2.25 This is not directly addressed in the scenarios and so we are cautious about drawing any firm conclusions about this factor.[26] The use of a lethal weapon, namely a firearm, discussed under scenario F and present in scenario G ("the bailiff homicide"),[27] is likely to be an aggravating feature. It is not clear whether this goes to an intention to kill, or to the violence being premeditated. Conversely, in scenario F the interviewees responded to the possibility that the frenzied nature of the attack, involving multiple stab wounds, evidenced an intention to kill which, if present, would have made that scenario more grave.Intention to kill
2.26 When a direct comparison is drawn, as in scenario C, between a killing in response to an attempted rape, and killing in response to a burglary, it is clear that the latter killing is regarded as more blameworthy. Those who kill in response to such a serious and degrading personal attack as rape are regarded with a great deal more sympathy than those who respond to an attack on their property. On the other hand, in scenario G, the fact that the killer was responding to a threat to his property was regarded as a matter of some limited mitigation.Defence of property as opposed to the person
2.27 The response to scenario D ("the baby killing")[28] seems to indicate that killing a child, in particular a helpless baby, involves a breach of trust regarded as particularly grave. However, counteracting that element of gravity, there is a degree of sympathy for the young inexperienced parent who is driven, apparently on one occasion, to act in desperation.[29] 2.28 In scenario G the fact that the victim is an innocent person trying to do his job by enforcing the law is regarded as aggravating, though other factors personal to the defendant operate in the contrary direction.The vulnerability of the victim
2.29 Whilst we can identify aggravating factors which interviewees are generally agreed upon, it is rare that such a factor will be treated alone as determinative of the perceived level of gravity of the offence. It is much more likely that other circumstances, which operate as mitigating factors, will also inform the assessment of gravity, making the overall perception a matter of balance and nuance. 2.30 It is, in our view, clear that informed public reaction recognises that conduct, which falls within the present offence of murder, encompasses a wide range of culpability.Conclusions
2.31 Each of the scenarios was drawn so as to illustrate a case in which a conviction for murder would be proper under the present law. Accordingly, for each of the scenarios a mandatory sentence of life imprisonment might properly arise. 2.32 When asked the simple question whether there should be a mandatory penalty for what they regarded as the most serious criminal homicides, a substantial majority (62.9%) said no. Although the number questioned was small, their responses when asked to consider a range of scenarios covering a wide range of cases which could give rise to murder convictions tend to point against their being a popular mandate for the present mandatory sentence. 2.33 Furthermore, this overall response accords with what emerged when the interviewees were asked to ascribe a level of sentence for each of the scenarios and their variants. As can be seen from Appendix III to Professor Mitchell's report, in no case other than that of scenario E ("the contract killer") would a majority of interviewees have imposed a life sentence.[30] At the high end of the perception of culpability were the cases of the jealous husband who poisoned his wife, and the husband who premeditatedly killed his cheating wife. The percentages favouring a life sentence were 44% and 38% respectively. In the case of the husband who hunted down and killed his daughter's rapist the percentage was 33.3%, and in the case of the baby killer the figure was 32.2%. 2.34 In the case of scenario I ("the mercy killing") almost 60% would not have prosecuted at all and 77% would either not have prosecuted or would have given a non-custodial disposal or a sentence of less than two years imprisonment. At present, in such cases a conviction for murder, with consequent mandatory life sentence, can only be avoided by a "benign conspiracy" between psychiatrist, defence, prosecution and the court to bring them within diminished responsibility. From the evidence of this study, this is an eminently just and humane outcome that accords with the informed views of the public. It is, however, a blight on our law that such an outcome has to be connived at rather than arising openly and directly from the law.Can we discern anything about the public perception of the need for a mandatory life sentence?
2.35 The notion that all murders, as the law is presently framed, represent instances of a uniquely heinous offence for which a single uniquely severe penalty is justified does not reflect the views of a cross section of the public when asked to reflect on particular cases.Conclusions
2.36 The law of murder in England and Wales has changed regularly over the last 50 years and is still not in a state of rest. Furthermore, the law in England and Wales is not the same as the law of Scotland and there is no unanimity elsewhere in the common law world. Nor is there any discernible commonality in continental jurisdictions. In this section we examine briefly the changes in the domestic law and the differences with other jurisdictions.The shifting sands of the law of murder
2.37 The foundation of the offence of murder has for centuries been the concept of 'malice aforethought'. Sir Edward Coke expressed it thus:Malice aforethought
Murder is when a man … unlawfully killeth … any reasonable creature in rerum natura under the king's peace, with malice aforethought, either expressed by the party, or implied by law, so as the party wounded, or hurt, etc. die of the wound, or hurt, etc. within a year and a day after the same.
2.38 The phrase has such a persistent popular resonance that modern textbooks still feel obliged to open their treatment of murder by invoking it even though they quickly go on to explain that, though this is a traditional formulation, it is a technical term with a technical meaning.[32] One of the classic texts on the subject described it as:Its presence or absence is the distinction between murder and involuntary manslaughter: "Murder is unlawful homicide with malice aforethought. Manslaughter is unlawful homicide without malice aforethought".[31]
a term of art if not a term of deception. Murder does not require either spite or premeditation. Mercy killing can be murder, so can a killing where the intent is conceived on the instant.[33]2.39 It has been said to be "a mere arbitrary symbol … for the 'malice' may have in it nothing really malicious; and need never be really 'aforethought'".[34] It has been criticised as "anachronistic and ripe for abolition".[35] It has been said that
"the expression 'malice aforethought' in whatever tongue expressed, is unfortunate, since neither the word 'malice' nor the word 'aforethought' is construed in its ordinary sense."[36]2.40 As recently as 1997 the following judicial criticism of the law of homicide was made:
the law of homicide is permeated by anomaly, fiction, misnomer and obsolete reasoning. One conspicuous anomaly is the rule which identifies the 'malice aforethought' (a doubly misleading expression) required for the crime of murder not only with a conscious intention to kill but also with an intention to cause grievous bodily harm. It is, therefore, possible to commit a murder not only without wishing the death of the victim but also without the least thought that this might be the result of the assault. Many would doubt the justice of this rule, which is not the popular conception of murder and (as I shall suggest) no longer rests on any intellectual foundation. The law of Scotland does very well without it, and England could perhaps do the same.[37]
2.41 Not only is the accuracy and utility of the fundamental expression of the essence of the offence problematic, but the substantive rules which underlie it have been shifting throughout the past 50 years and are still the subject of intense debate. 2.42 Until 1957 "malice aforethought mean[t] any one or more of the following states of mind preceding or co-existing with the act or omission … [whether or not premeditated]The shifting sands beneath the problematic foundation
(1) an intention to cause the death of, or grievous bodily harm to, any person whether such person is the person actually killed or not;
(2) knowledge that the act … will probably cause the death of or grievous bodily harm to, some person … although such knowledge is accompanied by indifference whether death or grievous bodily harm is caused or not, or by a wish that it may not be caused;
(3) an intent to commit any felony whatever; …
(4) an intent to oppose by force any officer of justice … in … the execution of [his duty] provided the offender has notice that the person killed is such an officer so employed."[38]2.43 The felony murder rule, as encapsulated in (3) and (4) above, was considered a species of "constructive malice" and was abolished in 1957.[39] This left two bases for the operation of malice, namely express and implied. The law as described by Stephen took recklessness as sufficient provided only that the killer knew of the probability that his act would cause death or grievous bodily harm. 2.44 For a short period of time the law changed so that subjective intent or recklessness was not necessary. It was sufficient if an objective test were satisfied. In DPP v. Smith[40] the House of Lords decided that a defendant could be presumed to have intended to cause death or grievous bodily harm to his victim if a reasonable person, placed in the same situation as the defendant and with his knowledge of the surrounding circumstances, would have foreseen the causing of death or grievous bodily harm as a natural and probable consequence of his conduct. 2.45 This state of affairs ceased in practice with the passage of section 8 of the Criminal Justice Act 1967.[41] The Act did not directly address the question of the mental element for murder in the sense of what was meant by intention or foresight, but concerned proof of intention and foresight. Nonetheless, appellate courts regarded DPP v. Smith as overturned.[42] The Privy Council in Frankland v The Queen[43] explicitly stated that DPP v Smith was based on a misunderstanding of the common law and should not be followed. 2.46 Notwithstanding the re-establishment of a subjective standard, the level of awareness required to satisfy that standard has continued to shift. For some time a subjective form of recklessness based on probability was sufficient. In DPP v Hyam[44] all five of their Lordships agreed that a person could be guilty of murder if he caused death as a result of consciously taking a specified degree of risk, though differing views were expressed as to the precise rule of law. The expressions varied from "serious risk"[45] to "highly probable",[46] which in each of these cases applied to the risk of death or grievous bodily harm. The minority[47] on this issue expressed their test in terms of the knowledge that death was likely. 2.47 The test, based on reckless risk-taking, did not survive long. In a series of cases[48] the House of Lords and the Court of Appeal have formulated a test which abandons the notion that recklessness is sufficient, instead focusing on the meaning of "intention". Murder is committed when the defendant unlawfully kills the victim in circumstances where he intends either to kill him or cause him grievous (i.e. really serious) bodily harm. The defendant intends to kill or cause grievous bodily harm when it is his purpose to cause it. In addition, however, a court or a jury may also find that a result is intended, though it is not the actor's purpose to cause it, when, (a) the result is a virtual certainty (barring some unforeseen intervention) as a result of the defendant's actions and (b) that the defendant appreciated that such was the case. 2.48 Even though this is now fairly well settled, it is not without controversy. In particular there is criticism of the fact that the second limb of the test is not expressed as a clear rule of law. The final question, whether a defendant had the requisite intent, does not follow as a matter of law from the jury's conclusion that it is sure of (a) and (b). In such circumstances the jury "may" find intention but it is implicit that it need not if it were to conclude that the defendant did not have the intention required for murder. This has been criticised as envisaging "that there is some ineffable, apparently indefinable notion of intent locked in the breast of jurors."[49] Other commentators have urged the courts to read the cases as if a rule of law, rather than a rule of evidence, has been established.[50] Commentators have also pointed out that it is an anomaly, when considering the state of mind required for murder, that the law focuses in part on whether, as a fact, death or serious injury was a virtual certainty rather than focussing exclusively on the defendant's belief that it was.[51] 2.49 Conversely, other critics have complained that the extension of "intention," beyond its primary meaning of generating a result as the purpose of an action, gives the word an unnatural meaning with which the jury must contend and that this is highly undesirable in such an important context.[52] Furthermore, the exclusion of any form of recklessness, as distinct from intention, from the requirements for murder has been a cause for concern for some critics. They cite, as an example, the terrorist who plants a bomb in a shopping centre, gives a warning, but kills a person who does not hear of the warning and is caught in the blast. Such a defendant would not be guilty of murder under the present law if the jury thought that, by reason of the evidence of the warning, he might neither have had the purpose of killing or causing grievous bodily harm nor have had the necessary foresight to satisfy the requirement of "oblique intent". The concern of these critics is that the terrorist is morally, and should in law be, guilty of murder. They point out that such a person would be guilty of murder in Scotland. The consequence is that in England and Wales the proper verdict may only be achievable were the jury to "cheat".[53] 2.50 As we have seen, the "intention" required may either be to kill or to cause grievous bodily harm. This was finally settled by the House of Lords in Cunningham.[54] 2.51 There is no requirement that the harm be obviously life threatening. Thus, a person may be guilty of murder if he intends to do serious harm but in a way which he does not, or even could not, foresee would result in the victim's death. This may be because the victim is unlucky in terms of the medical treatment received or other complications, or intrinsic weaknesses. Nonetheless, it follows from this formulation that the "uniquely heinous" crime of murder may be committed by a person who neither intends death, nor foresees it, nor ought to have foreseen its possibility. 2.52 This position has been the subject of repeated judicial criticism. Lord Edmund Davies in Cunningham 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.[55]
It has been described as a "conspicuous anomaly" and an example of "constructive crime resulting in defendants being classified as murderers who are not in truth murderers".[56]
2.53 There is no unanimity of approach in the common law world or beyond. A very brief survey of some jurisdictions reveals a range of approaches. In Scotland a person is guilty of murder if he intends to kill or acts with "wicked recklessness". In the United States Section 210.2 of the Model Penal Code includes within murder those reckless killings, which manifest "extreme indifference to the value of human life". It supplements this bare provision with a number of circumstances, which may involve extreme indifference. The practice in the individual states does not necessarily accord with this model. For example in Connecticut, Delaware, Kentucky, New York and Oregon an intention to cause death is required.[57] In Montana the mental element is with intent or knowingly.[58] In Canada a person commits murder if he causes the death of another and meant to cause death or bodily harm knowing that death was likely and being reckless as to whether it ensued.[59] 2.54 The Nathan Committee[60] took steps to inform itself on the law of homicide across the member states of the Council of Europe.[61] We give very brief summaries below of the basic definitions of murder and the sentencing regimes which applied then. We also include summaries of the relevant law in France and Germany, taken from expositions gratefully received from consultees:Other jurisdictions
(1) Cyprus distinguishes between premeditated murder and homicide. Premeditation differs from 'malice aforethought'. It is essential to show an intention to cause death, which was formed, and continued to exist, before the time of the act and at the time of acting, despite the opportunity to reflect and desist. There is a mandatory life sentence for premeditated murder.
(2) In Denmark there is a fundamental distinction between intentional homicide and causing another person's death because of negligence. Intentional killing is divided into four categories: a general category, paedocide, homicide committed on request (euthanasia or mercy killing) and genocide. The sentence is between 5 years and life, though a lesser sentence than 5 years can be imposed in extenuating circumstances. The average sentence falls within the 8 to 16 year bracket but there is a small number of life sentences passed each year.
(3) France: We are indebted to Professor John Spencer of the University of Cambridge for his account of the law of France which we briefly summarise. Meurtre is limited to homicide carried out with the intention of causing death. It does not carry a mandatory life sentence. Intention for this purpose carries broadly the same meaning as intention now carries in English law. There are aggravated forms of murder which carry a mandatory life penalty. They are where the murder is connected with another crime or wrong, or where it is carried out with premeditation, or where the victim falls within a range of specified victims such as relatives, minors, public officials or where the killing was a "hate crime" based on racism or homophobia.
(4) Germany: We are indebted to Antje Pedain of the University of Cambridge for giving us an account of German law which we summarise briefly. The basic homicide offence is killing intentionally (with an intention to kill or cause grievous bodily harm). It carries a sentence ranging from 5 years to life. Murder is defined very narrowly as an intended killing (where there is an intention to cause death) "out of a lust for killing, [or] in order to satisfy his sexual desires, [or] motivated by greed or other despicable reasons, [or] deviously or cruelly or with means capable of causing widespread mayhem or in order to enable or to cover-up the commission of another crime." This offence carries a mandatory life sentence.
(5) Italy has an offence of simple intentional homicide supplemented by certain identified aggravating circumstances. The difference between the basic and the aggravated offence is the different minimum lengths of a fixed term of imprisonment. In every case the term is a maximum of 30 years.
(6) In Luxembourg there is a distinction between voluntary and involuntary homicide. Within voluntary homicide, meurtre requires an intention to kill whereas homicide voluntaire does not. Where there is both an intention to kill and premeditation the offence is assassination. There are also distinctions based on the means of killing, the circumstances of the killing and the status of the victim. The sentencing structure operates by specifying a particular sentence for a type of crime but it can be reduced either compulsorily, where certain extenuating circumstances are established, or at the judge's discretion for other extenuating circumstances.
(7) In Malta there is a distinction between wilful, justifiable and involuntary homicide. "Wilful" homicide requires malice and an intent to kill or to put the life of the other in manifest jeopardy. It carries a mandatory life sentence.
(8) In the Netherlands there is a distinction between intentionally taking a person's life and causing the death of another. Within each of these divisions there are subcategories. Within the former there are distinctions between:
(a) a person who acts with full knowledge;
(b) a person who must have foreseen that the primary though undesired result (death) was inevitable; and
(c) a person who is indifferent whether the primary, though undesired, result (death) will follow or not.
The sentence is at large.
(9) In Norway the main criterion for distinguishing is between negligence, intent or premeditation. The main use of this distinction is for sentencing. The sentence for murder ranges from a minimum of 6 months to 21 years. Sentences for premeditated killing are on average 15.2 years and for intentional killings, 7.3 years.
(10) In Spain there are three categories of intentional homicide: Parricide, where the victim is a blood or marriage relative, carries a penalty of between 20 and 30 years. Murder, where the death of the person falls within one of the following circumstances (1) by treachery, (2) for a price, (3) by means of inundation, fire, poison or explosive, (4) with proved premeditation, (5) by aggravated brutality, deliberately and cruelly increasing the pain of the victim, carries a penalty between 26 and 30 years. Homicide where none of these elements are present, carries a penalty between 12 and 20 years. There are also three levels of non-intentional homicide which range from recklessness (penalty six months to six years), to negligence without breaking any rules, for which the penalty is a fine or reprimand.
(11) In Sweden there is a distinction between murder and manslaughter. The distinction seems to be a matter for the judge in each case, depending on intentions, motives and the way the defendant acted. The sentence is at large including a discretionary life sentence.
(12) In Switzerland the basic offence of meurtre is for intentional killing and carries a sentence of at least 5 years, up to a maximum of 20. There is an aggravated offence of assassination which is meurtre plus one of a number of aggravating features: premeditation, depravity, where the defendant is particularly dangerous by reference to the means used, the level of cruelty or treachery, the motives, relationship with the deceased, or the presence or absence of remorse. This offence carries a presumptive life sentence subject to extenuating circumstances.
(13) In Turkey homicide requires intent to kill, defined as a willing and conscious desire to commit homicide and to expect its consequences. The penalty for the basic offence is 24-30 years. The offence can be aggravated based on the identity of the victim: family, or member of the National Assembly or civil servant on duty and the motive (premeditation in pursuit of or avoiding detection of crime)[62]. Matters such as provocation are taken into account in deciding punishment.
2.55 The Criminal Law Revision Committee considered the law of murder in 1980.[63] It concluded that it should be murder (a) if a person with the intent to kill causes death; or (b) if a person causes death by an unlawful act intended to cause serious injury and known to him to involve a risk of causing death. They also included as an optional additional basis for the offence, which would cover the terrorist case referred to above, that it should be murder if a person causes death by an unlawful act intended to cause fear (of death or serious injury), and known to the defendant to involve a risk of causing death. 2.56 The Law Commission, in the Draft Criminal Code of 1989,[64] defined murder in clause 54(1) as follows:Previous attempts at reform
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, unless sections 56, 58, 59, 62 or 64 applies.[65]2.57 It defined "intention" for the purposes of the Code in clause 18(b) in the following terms: "A person acts 'intentionally' with respect to … a result when he acts either in order to bring it about or being aware that it will occur in the ordinary course of events." 2.58 We have already referred to the Nathan Committee Report.[66] They concluded that the offence of murder should be defined by statute and that the basis should be the recommendations of the Law Commission in the Draft Criminal Code, both in terms of the definition of murder and in the definition of intention. That report was the subject of a lengthy debate[67] in the House of Lords at the end of which the House "took note" of it. The record of that debate is, in its own right, a rich source of wisdom and of a range of views both on the definition of the offence of murder and on the case for and against the mandatory life sentence for murder.
The impact of the mandatory sentence
2.59 Throughout the responses to Consultation Paper No 173 there was a single, prominent and endless refrain: the partial defences of provocation and diminished responsibility have as their origin and main purpose the protection of the defendant from the mandatory death/life sentence for murder. The huge discrepancy in sentence for a person who succeeds, or fails, in those defences has generated pressures to expand those defences. 2.60 Even before the passage into law of the Criminal Justice Act 2003 ("the 2003 Act"), the discrepancy in the sentence a person would expect to receive depending on whether they fell one or other side of the line was massive. 2.61 A life sentence for murder comprises three elements. The first element is a minimum term during which the convicted murderer must be detained for the purposes of retribution without any prospect of release. The second, which starts on the expiry of the first, runs until the parole board decides that the person safely may be released on licence. The third period runs for the remainder of the convicted person's life. During that period the convicted person may be recalled to prison by administrative act and will be detained there until a decision is taken that it is safe to release him again on licence. This third element is an onerous burden placed on a lifer and does, in a real sense, amount to a life sentence. 2.62 The initial retributive term has recently, and prior to the 2003 Act, been fixed by the Lord Chief Justice after a report prepared by the trial judge which concluded with a recommendation of a minimum term. Prior to the coming into effect of the 2003 Act[68] the trial judge's recommendation was, in turn, informed by a practice statement[69] issued following advice tendered to the Court of Appeal by the Sentencing Advisory Panel. It provided for two starting points for the minimum term: 15/16 years, where culpability was exceptionally high or the victim was particularly vulnerable, and 12 years where the killing arose from a quarrel or loss of temper between two people known to each other. There were potential aggravating factors: planning, firearms, advanced preparation, the culmination of cruel and violent behaviour over a period of time. 2.63 The 2003 Act provides that the minimum term is stated by the trial judge in open court.[70] The determination of the length of the minimum term is governed by a complex and sophisticated set of provisions.[71] They require the judge to determine the minimum term by reference to one of three starting points. Those are: whole life, 30 years and 15 years. A case falls within one or other of these categories depending upon whether it is of "exceptionally high seriousness", "particularly high seriousness", or neither of the other two. For the first two categories the statute provides a list of elements which would normally result in the case falling within one or the other. Once the starting point has been chosen, the court has to take into account any aggravating or mitigating factors that it has not allowed for in its choice of starting point. The statute provides a list of potential aggravating factors and mitigating factors. 2.64 The effect of this statutory scheme is that the lowest starting point provided for is 15 years as opposed to 12 years under the practice direction, and the starting point for particularly serious cases is raised from 15/16 years to a minimum of 30 years or whole life for cases of exceptional seriousness. 2.65 These minimum terms are the actual number of years which must be served in custody before there can be any release on licence. 2.66 Where a person is convicted of manslaughter on the basis of provocation there are certain established patterns of sentence.[72] There is a clear difference between cases which are "domestic" and those which are "non-domestic".[73] The level of sentencing for domestic incidents is on the whole lower than for non-domestic incidents. The majority of those convicted for domestic manslaughter receive a sentence of 5 years or less whereas those convicted for manslaughter in a non-domestic setting generally receive higher sentences. 2.67 Where the killing is by a firearm carried and used after provocation, the sentence is generally around 12 years. Where a knife is carried and used or there is great brutality the range of sentence is between 10 and 12 years. Where there is moderate provocation and sudden retaliation, a sentence of the order of 7 years is the normal. In contrast, a high level of provocation leading to sudden retaliation with strong mitigation may attract a sentence of 5 years. Where there has been a very high level of provocation including violent attack, or a level of terror evoking extreme passion, a sentence of less than 3 years may be expected. Where manslaughter is committed under provocation arising out of possessiveness or jealousy or unfaithfulness, the ordinary sentencing range lies between 5 and 7 years. 2.68 When it is recalled that determinate sentences mean that a person may be released on licence after serving half the term, and must be released on licence after serving two thirds of the sentence, in each case including time spent on remand awaiting trial, and that the licence period does not normally extend beyond the end of the nominal sentence, the gulf in penalty following a conviction for manslaughter or for murder is apparent. In those circumstances, it is no surprise that great efforts are made to secure a manslaughter conviction and for that purpose there is the greatest of pressure to distort the concepts of provocation and diminished responsibility to accommodate deserving or hard cases. This pressure will continue for as long as each case of murder carries the mandatory life sentence. 2.69 There has been controversy over Schedule 21 of the Criminal Justice Act 2003, which contains the provisions concerning the determination of the minimum term for a mandatory life sentence. Much of the discussion has focussed on the number of years which constitute the various starting points. There has been less comment on the fact that the schedule provides a detailed description of circumstances which will raise the level of seriousness of an instance of murder and identifies and describes a large number of second tier, aggravating or mitigating, factors. This is a form of statutory recognition that within murder there are gradations of gravity, but all attract an indeterminate sentence.The difference between a murder and a manslaughter conviction
2.70 Our terms of reference made no specific mention of the special position of children who kill. It became apparent from the comments of a small number of consultees that this subject deserves separate and full consideration. Of particular importance are the responses of those from outside the legal professions: Professor Susan Bailey, whose views were endorsed by the Royal College of Psychiatrists, Dr Eileen Vizard, whose views were submitted as those of the NSPCC, and NACRO. 2.71 We discuss the particular problems of the law of provocation and diminished responsibility in relation to children who kill in later Parts of this report.[74] 2.72 Furthermore, the law and practice concerning the detention of children who have been convicted of homicide offences is hugely complex and problematic and has been recently criticised as such by the Master of the Rolls.[75] He said:The position of children
An outstanding issue of principle may remain in relation to the anomaly identified in the difference in treatment of young persons sentenced to be detained during Her Majesty's Pleasure and young persons sentenced to determinate sentences. Further legislation may well prove necessary. It is certainly desirable. The legislative history that we have outlined has culminated in a maze of statutory provisions that are almost impenetrable.2.73 There is, in our view, a particular need for a review of the law of murder as it applies to children who kill.
2.74 The present law of murder in England and Wales is a 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. These could include the elements which should comprise the substantive offence; what elements, if any, should elevate or reduce the level of culpability; and what should be the appropriate sentencing regime. We recommend that the Law Commission be asked to conduct a review of the law of murder with a view to:Conclusion and recommendations
(1) considering the definition of the offence, together with any specific complete or partial defences which may seem appropriate.
(2) considering whether the offence of murder should be further categorised on grounds of aggravation and/or mitigation and if so what those categories should comprise.
(3) in the light of (1) and (2), considering the application of a mandatory life sentence to the offence of murder or to any specific categories of murder
(4) Examining how each of (1), (2) and (3) may differently be addressed where the offender is a child.
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Note 1 Paras 1.4 - 1.5. [Back] Note 2 Ibid, at para 1.2. [Back] Note 3 Earl Ferrers opening for the Government in the debate on the Nathan Committee Report Hansard (HL) 6 November 1989, vol 512, col 455. [Back] Note 4 R. v. Howe [1987] 1 AC 417, 433, per Lord Hailsham of St Marylebone. [Back] Note 5 Section 3 states: “Where on a charge of murder there is evidence on which the jury can find that the person charged was provoked (whether by things done or by things said or by both together) to lose his self-control, the question whether the provocation was enough to make a reasonable man do as he did shall be left to be determined by the jury; and in determining that question, the jury shall take into account everything both done and said according to the effect which, in their opinion, it would have on a reasonable man.” [Back] Note 6 [2001] 1 AC 146. [Back] Note 7 Specimen Direction No 51. [Back] Note 8 Part XIII, questions 1 and 3. [Back] Note 9 Part XIII, question 10. [Back] Note 10 1 lay person, 4 judges, 2 individual members of the legal profession, 4 academics, 1 organisation within the criminal justice system and 2 non-governmental organisations (NGOs). [Back] Note 11 16 judges, 1 individual member of the legal profession, 9 academics, 4 professional bodies in the criminal justice system, 1 NGO, and 1 psychiatrist. [Back] Note 12 2 lay persons, 10 judges, 3 individual members of the legal profession, 10 academics, 5 professional bodies within the criminal justice system and 3 NGOs. [Back] Note 13 13 judges, 3 individual members of the legal profession, 5 academics, 3 professional bodies (including the Royal College of Psychiatrists) and 1 individual psychiatrist. [Back] Note 14 1 lay person, 16 judges, 2 individual members of the legal profession, 13 academics, 9 professional bodies within the criminal justice system, and 8 NGOs. [Back] Note 15 5 judges, 10 practitioners in the criminal justice system (including 1 psychiatrist and one senior police officer), 6 professional bodies involved in the criminal justice system (including the Rose Committee of senior judges, the CPS, the London Criminal Solicitors Association and the Royal College of Psychiatrists), 15 academics and 2 NGOs (JUSTICE and Victim Support). [Back] Note 16 21 judges, 9 individual practitioners (including 2 psychiatrists), 7 professional bodies (including the Rose Committee, the Police Federation of England and Wales, the Royal College of Psychiatrists and the Association of Women Barristers) 20 academics, 5 NGOs (NACRO, JUSTICE, Rights of Women, Southall Black Sisters, Refuge and Victim Support). The only lay person to comment on these issues was in favour of abolition. [Back] Note 17 1 judge, 2 NGOs and 2 professional bodies. [Back] Note 18 The dissatisfaction emanates from all shades of opinion, including lawyers and victim groups. It was particularly articulated in the scathing comments made by Victim Support in their oral and written responses and by SAMM in the course of a very helpful meeting we had with their officers. [Back] Note 19 A man agreed to kill his victim for £5,000, and carried out his part of that agreement two days later. (Payment of the £5,000 was the only reason for the killing.) [Back] Note 20 A man was told by his wife that as soon as their children had left home she would leave him and live with another man whom she’d known for many years. He brooded on this for four weeks and then killed her by poisoning her tea. He said he couldn’t bear the thought of her being with another man, and psychiatrists reported that he suffered from an extreme form of jealousy. [Back] Note 21 Cuckolded: A man whose wife had had a series of affairs with other men, decided to kill her if she had another affair. Soon afterwards, he discovered she was having a further affair and he strangled her to death. Psychiatrists reported that he was not mentally ill.
Taunted: Suppose instead that when he discovered she was having an affair he confronted her and she taunted him about his sexual inadequacy – whereupon he lost his temper and killed her. [Back] Note 22 Standard version: An Asian woman returned home to find two white men attempting to rape her 15-year old daughter. She got a knife from the kitchen. The men shouted racist abuse at her and started to run away. She chased after them and stabbed one of them several times in the back, killing him.
Second variation: Suppose instead that when the men were attempting to rape the daughter, rather than chase them the woman waited for her husband to return home and told him what had happened. He realised who the men were. (1) He took a knife, went to the home of one of the men and stabbed him to death. Or (2) A week later he saw the other man in the street and deliberately ran him down in his car, killing him. [Back] Note 23 Suppose instead that the young man was kept awake by his neighbour constantly playing loud music throughout the night. He had repeatedly asked the neighbour to keep the noise down. The night before the interview the music started at midnight. He got up, got a knife from the kitchen, went to the neighbour’s flat and asked him to lower the music. But the neighbour laughed and the man fatally stabbed him. [Back] Note 24 There was an argument between two men and when one man began punching and kicking him, the other pulled out a knife and fatally stabbed his attacker with it. [Back] Note 25 A man had nursed his terminally-ill wife for several years but eventually gave in to her regular requests that he should “put her out of it”, and he smothered her with a pillow. [Back] Note 26 They were drawn up to examine factors which may illuminate cases which may or may not attract the partial defence of provocation. [Back] Note 27 A man with a wife and three children of school age had been served with an eviction notice. The house had been his home for 20 years. He had lost his job and fell into substantial rent arrears. The loss of his job together with the eviction notice made him depressed. The bailiff arrived to enforce the notice but when he tried to enter the house the man shot him with a gun he was lawfully entitled to keep. [Back] Note 28 A 19-year old man was the father of a young baby who constantly cried. One night the man, who had an important job interview the next day, was kept awake by the baby crying. He went into her bedroom and violently shook her and hit her. The baby died. [Back] Note 29 The facts of this scenario are similar to the case of Michael Bennett [2004] 1 Cr App R (S) 65. He was convicted by a jury, on a charge of murder, of the manslaughter of his young son (3 ½ months old) on the grounds of provocation caused by frustration at the child’s crying. The Court of Appeal upheld his sentence of 9 years imprisonment. [Back] Note 30 In that scenario 79% would have. It is noteworthy that consultees were offered on each scenario a choice that included both a life sentence with release on licence and a “natural” life sentence. [Back] Note 31 R v Doherty (1887) 16 Cox CC 304, 307 per Stephen J. [Back] Note 32 For example, Smith and Hogan, Criminal Law (10th ed 2002) p 359, A P Simester and G R Sullivan, Criminal Law: Theory and doctrine (2nd ed 2003) p 334. [Back] Note 33 G Williams, Textbook of Criminal Law (2nd ed 1983) para 11.2. [Back] Note 34 Kenny Outlines (15th ed) 153 cited by Smith and Hogan, Criminal Law (10th ed 2002) p 359. [Back] Note 35 Hyam v. DPP [1975] AC 55, 66, per Lord Hailsham of St Marylebone; R v Moloney [1985] AC 905, 920, per Lord Bridge of Harwich. [Back] Note 36 R v Cunningham [1982] AC 566, 575, per Lord Hailsham of St Marylebone. See also, Carter & Harrison, Offences of Violence (2nd ed 1997) at paras 4-061 to 4-065. [Back] Note 37 Attorney General’s Reference (No. 3 of 1994) [1998] AC 245, 250, per Lord Mustill. [Back] Note 38 J F Stephen A digest of the criminal law (Indictable offences) (9th ed 1950) article 264, p 211. [Back] Note 39 Homicide Act 1957, s 1. [Back] Note 41 This enacted part of the recommendations contained in Law Com No 10: Imported Criminal Intent (DPP v. Smith) 1967. [Back] Note 42 For example, see Wallett [1968] 2 QB 367. [Back] Note 45 Ibid, at 65 per Lord Hailsham of Marylebone. [Back] Note 46 Ibid, at 80 per Viscount Dilhorne. [Back] Note 47 Lords Diplock and Kilbrandon. See for example, ibid, at 98 per Lord Kilbrandon:
if murder is to be found proved in the absence of an intention to kill, the jury must be satisfied from the nature of the act itself or from other evidence that the accused knew that death was a likely consequence of the act and was indifferent whether that consequence followed or not. [Back] Note 48 Moloney [1985] AC 905; Hancock & Shankland [1986] AC 455; Nedrick [1986] 1WLR 1025; Walker & Hayles (1990) 90 Cr App R 226; Woollin [1999] AC 82; Matthew & Alleyne [2003] 2 Cr App R 30. [Back] Note 49 Smith and Hogan, Criminal Law (10th ed 2002) p 72. [Back] Note 50 A P Simester and G R Sullivan, Criminal Law: Theory and doctrine (2nd ed 2003) p 337. [Back] Note 51 Smith and Hogan, Criminal Law (10th ed 2002) p 71. The academic literature on “intention” is vast. [Back] Note 52 See for example, Lord Goff of Chieveley, “The mental element in the crime of murder”[1988] LQR 30, repeated by him in the debate on the Report of the Select Committee on Murder and Life Imprisonment, Hansard (HL) 7 November 1989, vol 512, col 467-8. See the contrary view of Professor G Williams, “The mens rea for murder: leave it alone” [1989] LQR 387. [Back] Note 53 Lord Goff of Chieveley, Hansard, ibid, at col 468. Such “under inclusiveness” might be said to arise in a case such as Hyam. In such a case the defendant might not know there was anyone in the house which she was firebombing so as to have a belief that grievous bodily harm was virtually inevitable but may only think there was a risk that someone was. In law that person would not be guilty of murder as recklessness, even as to the risk of what is obviously life threatening harm, is not enough. [Back] Note 56 Attorney-General’s Reference (No 3 of 1994) [1998] AC 245, 250, per Lord Mustill; Powell and Daniels, English [1999] 1 AC 1, 12-13 per Lord Steyn. [Back] Note 57 CT ST section 53a-54a; DE ST TI 11 section 632; KY ST S 507.020; NY PENAL section 125.20; OR ST S 163.115. [Back] Note 59 Canadian Criminal Code ss 222(1) and 229(a). [Back] Note 60 Report of the Select Committee on Murder and Life Imprisonment, (1988-89) HL 78-I. [Back] Note 61 Ibid, Appendix 5. [Back] Note 62 When the Nathan Committee reported, the death penalty was in force in Turkey for certain aggravated murders – if the victim was a member of the National Assembly or civil servant on duty and if the murder was premeditated or committed in pursuit of or avoiding detection of crime. Since then, Turkey has abolished the death penalty for all offences. See further R Badinter, “Moving towards universal abolition of the death penalty” in Death Penalty – Beyond Abolition (2004) p 7 at p 9. [Back] Note 63 Fourteenth Report: Offences Against the Person (1980) Cmnd 7844. [Back] Note 64 A Criminal Code for England and Wales (1989) Law Com No 177, vol 1. [Back] Note 65 These sections set out the partial defences contained in the code of diminished responsibility, provocation, use of excessive force, suicide pact killing and infanticide. [Back] Note 66 Report of the Select Committee on Murder and Life Imprisonment (1988-9) HL 78-I. [Back] Note 67 Hansard (HL) 6 November 1989, vol 512, cols 448-530. [Back] Note 68 On 16 December 2003. [Back] Note 69 Practice Statement: Minimum Periods (Life Imprisonment) [2002] 1 WLR 1789. [Back] Note 70 As such it is subject to appeal under the Criminal Justice Act 2003, s 271. [Back] Note 71 Criminal Justice Act 2003, sched 21. [Back] Note 72 The following details are extracted from the Sentencing Advisory Panel’s Consultation Paper, “Sentencing of manslaughter by reason of provocation” (11 March 2004), available at www.sentencing-guidelines.gov.uk. [Back] Note 73 “Domestic” is defined by the Sentencing Advisory Panel, ibid, at para 3, as:
Any criminal offence arising out of physical, sexual, psychological, emotional or financial abuse by one person against a current or former partner in a close relationship, or against a current or former family member.
This is the same definition as that used by the Crown Prosecution Service. [Back] Note 74 See Part 3, paras 3.131 – 3.134 and Part 5, paras 5.102 – 5.105. [Back] Note 75 R (on the application of Smith) v Secretary of State for the Home Department; R (on the application of Dudson) v Secretary of State for the Home Department [2004] EWCA Civ 99, para 110. [Back]
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