The Law Commission

PART 10 LIST OF PROVISIONAL PROPOSALS AND CONSULTATION QUESTIONS

THE STRUCTURE OF HOMICIDE OFFENCES

Provisional proposal

(1) "first degree murder" (mandatory life sentence);

(2) "second degree murder" (discretionary life sentence);

(3) manslaughter (fixed term of years maximum sentence); and

(4) specific homicide offences, such as assisting suicide and infanticide (fixed term of years maximum sentence).

[paragraph 2.7]

Questions

(1) do respondents believe that there is a better framework than the one that we are proposing?

(2) If so, what would that framework be?

THE GENERAL HOMICIDE OFFENCES THAT WE ARE PROPOSING

"First degree murder"

Provisional proposal

[paragraph 2.2(2)]

The sentence for the offence should be imprisonment for life.

Questions

10.6 We ask consultees whether they agree that:

(1) "first degree murder" (and the mandatory life sentence) should be confined to unlawful killings committed with an intention to kill;

(2) an unlawful killing committed with an intention to kill should be "first degree murder" irrespective of whether the killing was premeditated;

(3) an unlawful killing committed with an intention to kill should be "first degree murder" irrespective of the status of the victim.

"Second degree murder"

Provisional proposals

10.7 We provisionally propose that:

(1) all unlawful killings committed with an intention to cause serious harm should be "second degree murder";

[paragraph 3.2(2)]

(2) all unlawful killings committed with reckless indifference to causing death should be "second degree murder";

[paragraph 3.2(3)]

(3) all unlawful killings committed with an intention to kill should be "second degree murder" if the defendant has a partial defence, namely provocation, diminished responsibility or duress.

[paragraphs 6.2(1) and (3) and paragraphs 7.1(1)(a)(ii)]

The maximum sentence for the offence should be imprisonment for life.

Questions

10.8 We ask whether consultees agree that:

(1) the law should draw a distinction between "first degree murder" and second degree murder";

(2) an unlawful killing committed with an intention to cause serious harm, but without an intention to endanger life, is sufficiently blameworthy to be "second degree murder";

(3) an unlawful killing committed with reckless indifference to causing death is sufficiently blameworthy to be "second degree murder";

(4) provocation and diminished responsibility should have the same effect, namely to reduce "first degree murder" to the same lesser offence of "second degree murder", so that the jury is not forced to choose between them when they are pleaded together;

(5) provocation and diminished responsibility should reduce "first degree murder" to "second degree murder" rather than manslaughter;

(6) provocation and diminished responsibility should not be partial defences to "second degree murder";

(7) the maximum sentence for "second degree murder" should be life imprisonment.

Harm is not to be regarded as serious unless it is harm of such a nature as to endanger life or to cause, or to be likely to cause, permanent or long term damage to a significant aspect of physical integrity or mental functioning.

Manslaughter

Provisional proposals

[paragraph 3.2(4)]

[paragraph 3.2(4)]

Questions

(1) killing through gross negligence should result in a conviction of manslaughter;

(2) manslaughter through gross negligence should be confined to cases where the defendant's conduct involved an obvious risk of death (as opposed to serious harm);

(3) killing through "reckless stupidity" should result in a conviction of manslaughter rather than "second degree murder";

(4) it should be manslaughter to cause death by a criminal act intended to cause some, but not serious, physical harm;

(5) it should be manslaughter to cause death by a criminal act foreseen as involving the risk of causing some harm even if the harm foreseen was not serious and death was neither foreseen nor could have been foreseen.

THE MEANING OF INTENTION

The First Model

(1) Subject to the proviso set out below:

(a) A person acts "intentionally" with respect to a result when he or she acts either:

(i) in order to bring it about, or

(ii) knowing that it will be virtually certain to occur; or

(iii) 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.

(2) Proviso: a person is not to be deemed to have intended any result, which it was his or her specific purpose to avoid.

The Second Model

(1) A person is to be regarded as acting intentionally with respect to a result when he or she acts in order to bring it about.

(2) In the rare case where the simple direction in clause (1) is not enough, the jury should be directed that:

they are not entitled to find the necessary intention with regard to a result unless they are sure that the result was a virtual certainty (barring some unforeseen intervention) as a result of the defendant's actions and that the defendant appreciated that such was the case.

(3) In any case where the defendant's chance of success in his or her purpose of causing some other result is relevant, the direction in clause (2) may be expanded by the addition of the following phrase at the end of the clause (2) direction:

or that it would be if he or she were to succeed in his or her purpose of causing some other result, and that the defendant appreciated that such was the case.

COMPLICITY IN "FIRST DEGREE" MURDER

Provisional proposals

(1) D intended that "first degree murder" should be committed;

(2) D was a party to a joint venture with P to commit "first degree murder"; or

(3) D was a party to a joint venture with P to commit another crime and D foresaw that P might commit "first degree murder" in the course of that venture.

[Paragraph 5.1(1)]

[Paragraph 5.1(3)]

(1) was a party to a joint venture with P to commit a crime;

(2) D intended or foresaw that harm (or the fear of harm) might be caused by a party to the venture; and

(3) it would have been obvious to a reasonable person in D's position that someone might be killed as a result of the venture.

[Paragraph 5.1(4)]

Questions

(1) D should be guilty of "first degree murder" if D was a party to a joint venture with P and D foresaw that P might commit "first degree murder";

(2) D should not have a partial defence to "first degree murder" simply on the basis that he played a peripheral role in the murder;

(3) D should be able to rely on duress as a partial defence to "first degree murder"; and

(4) D should be guilty some form of homicide offence instead of "first degree murder" if D was a party to a joint venture with P to commit a crime, D intended or foresaw that harm (or the fear of harm) might be caused by a party to the venture and it would have been obvious to a person in D's position that someone might be killed as a result of the venture.

(5) If so, whether it be labelled "complicity in unlawful killing" or manslaughter.

THE DEFINITION OF THE PARTIAL DEFENCE OF DIMINISHED RESPONSIBILITY

Provisional proposal

(1) A person who would otherwise be guilty of "first degree murder" is not guilty of "first degree murder" if, at the time of the act or omission causing death, that person's capacity to

(a) understand events; or

(b) judge whether his or her actions were right or wrong; or

(c) control him or herself

was substantially impaired by an abnormality of mental functioning arising from an underlying condition or developmental immaturity, or both; and

(2) the abnormality of mental functioning or the developmental immaturity or the combination of both was a significant cause of the defendant's conduct in carrying out the killing.

(3) "Underlying condition" means a pre-existing mental or physiological condition.

[paragraph 6.2(2)]

Questions

(1) whether the current definition of diminished responsibility in section 2 of the Homicide Act 1957 should be replaced;

(2) if so, whether it should be replaced by the definition that we are provisionally proposing or by a different definition;

(3) whether, if the definition was to remain broadly as it is under section 2, it should at least be reformed to the extent of removing the need to show that an abnormality of mind had to arise from one of the causes stipulated in the section;

(4) whether, whatever the definition, "developmental immaturity" should be added as a possible source of diminished responsibility, irrespective of whether the accused's development was "arrested or retarded";

(5) if so, whether "developmental immaturity" should be confined to persons under a particular age at the date of committing the offence and, if so, what the age limit should be;

(6) whether the expert evidence provided in diminished responsibility cases is satisfactory and, if not, whether the system for providing it can be improved.

THE PARTIAL DEFENCE OF PROVOCATION

Provisional proposal

Questions

DURESS

Provisional proposal

[paragraph 7.3]

Questions

(1) duress should be a defence to "first degree murder";

(2) if the answer to (1) is "yes", that it should be a partial but not a full defence;

(3) if the answer to (2) is "yes", that it should reduce "first degree murder" to "second degree murder" rather than manslaughter

(1) whether duress should be a defence to "second degree murder" and attempted murder; and

(2) if so, whether should it be a full or a partial defence;

(3) whether duress if successfully pleaded as a defence to "first degree murder" by a child or young person should result in more lenient treatment than it would for an adult.

KILLING WITH CONSENT AND DIMINISHED RESPONSIBILITY

Provisional proposal

[paragraph 8.2]

Questions

(1) killing in pursuance of a suicide pact should not in itself justify conviction of a lesser offence than "first degree murder" and that accordingly section 4 of the Homicide Act 1957 should be repealed;

(2) killing in pursuance of a suicide pact or, if there is no suicide pact, killing the victim with his or her consent, should only result in conviction of a lesser offence than "first degree murder" if the defendant at the time of the killing was suffering from an abnormality of mental functioning which was a significant cause of his or her conduct in carrying out the killing;

(3) if so, the lesser offence should be "second degree murder";

(4) our proposed reformulation of the definition of the partial defence of diminished responsibility will cater adequately for the deserving cases that currently fall within section 4 of the Homicide Act 1957 and will exclude undeserving cases that currently fall within section 4.

INFANTICIDE

Provisional proposal

(1) to delete any reference to the "effect of lactation consequent upon the birth of the child", and

(2) to substitute two years for 12 months (the relevant age of the child).

[paragraph 9.1(2)(a)]

Questions

(1) the offence/defence of infanticide should be retained;

(2) it should be reformed in the way that we propose.

(1) If the offence/defence of infanticide were to be abolished, infanticide cases should be subsumed within a reformed defence of diminished responsibility;

(2) if a biological mother of a child of one year or less is convicted of murdering that child and at trial did not raise the defence of infanticide, the trial judge should be empowered to order a psychiatric report on the mother with a view to establishing whether or not there is evidence that at the time of the killing the requisite elements of a charge of infanticide were present;

(3) the trial judge on receipt of the psychiatric report (assuming the report reveals evidence capable of supporting a verdict of infanticide) be able to postpone sentence and certify the conviction for appeal on the grounds of fresh evidence;