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You are here: BAILII >> Databases >> The Law Commission >> A New Homicide Act For England And Wales? (Consultation Paper) [2005] EWLC 177(2) (20 December 2005)
URL: http://www.bailii.org/ew/other/EWLC/2005/177(2).html
Cite as: [2005] EWLC 177(2)
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PART 2 CHANGING THE STRUCTURE OF THE LAW OF HOMICIDE
QUESTIONS AND PROVISIONAL PROPOSALS
2.1 We ask:
(1) Should "first degree murder" (and the mandatory life sentence) be confined to intentional killing?
[paragraph 2.12]
(2) If your answer to (1) is "yes", should the law go on to draw a distinction between "first degree murder" and "second degree murder"?
[paragraphs 2.51-2.54]
(3) Should "second degree murder" become the verdict when partial defence pleas, like diminished responsibility and provocation, are successful?
[paragraph 2.55]
(4) Should some or all partial defences be abolished, with the effect that they become simply mitigating circumstances affecting the recommended minimum period of the life sentence that the offender must spend in custody for murder?
[paragraphs 2.73-2.96]
(5) If your answer to (2) above is "yes", should killing with an intention to do serious harm become "second degree murder"?
[paragraph 2.55]
(6) If your answer to (2) above is "yes", should "second degree murder" also cover what we define as killing by reckless indifference?
[paragraph 2.55]
(7) If "second degree murder" should be introduced, should it have a discretionary life maximum penalty?
[paragraph 2.65]
(8) Should the law regard some partial defence pleas, like killing under diminished responsibility when the victim consented to be killed, as involving such limited culpability that they ought to reduce "first degree murder" to manslaughter (and not simply to "second degree murder")?
[paragraphs 2.69-2.72]
(9) Should the maximum sentence for manslaughter have a lower maximum sentence (such as 14 years' imprisonment) to reflect the difference between such an offence and "first degree murder" or "second degree murder"?
[paragraph 2.7(3)]
2.2 We provisionally propose that:
(1) The law draws a distinction between "first degree" and "second degree murder".
(2) "First degree murder" (and the mandatory life sentence) should be confined to intentional killing.
(3) "Second degree murder" should become the verdict when partial defence pleas, like diminished responsibility and provocation, are successful.
(4) Killing with an intention to do serious harm should be "second degree murder".
(5) "Second degree murder" should also cover what we define as killing by reckless indifference.
(6) If "second degree murder" is introduced, it should have a discretionary life maximum penalty.
(7) The maximum sentence for manslaughter should have a lower maximum sentence (such as 14 years' imprisonment) to reflect the difference between such an offence and "first degree murder" or "second degree murder".
OUR PROVISIONAL VIEW OF HOW THE LAW OF HOMICIDE SHOULD BE RESTRUCTURED
2.4 One of the many problems with the present law is that it does not respect the "ladder" principle. Manslaughter, for example, encompasses far too great a range of conduct causing death. At the lower end of the scale, it covers cases in which the defendant simply pushes someone in (say) a dispute over priority in a queue, and the victim falls over, hits his or her head, and dies.[1] At the other end of the scale, it must cover cases such as one in which (say) the defendant deliberately pushes a huge lump of concrete from a road bridge as a car is passing underneath, killing an occupant of the car;[2] times a bomb to go off an hour after a warning has been given that it will explode, killing the bomb disposal expert; or puts one bullet in a revolver, spins the barrel and fires the gun at someone's head, killing them when the gun goes off.[3]
2.7 In that regard, our provisionally preferred structure of homicide offences looks like this:
(1) "First degree murder" (mandatory life sentence):
(a) Intentional killing.
(2) "Second degree murder" (discretionary life sentence):
(a) Killing with intention to do serious harm;(b) Killing through reckless indifference to causing death;(c) Partial defences to intentional killing, such as diminished responsibility.
(3) Manslaughter (fixed term of years maximum sentence):
(a) Killing through gross negligence as to causing death; or(b) Killing through a criminal act which the offender intended to cause some injury or realised might cause some injury;[4]
(4) Other Offences:
(a) Infanticide (as amended); complicity in suicide etc.
2.10 It may be helpful to set out various alternatives to our provisionally preferred option.
(1) "First degree murder":
(a) Intentional killing;(b) Killing with intention to do serious harm, where 'serious' harm is restricted to the most severe injuries.
(2) "Second degree murder":
(a) Selected partial defences to murder[5] only; or(b) Killing with intention to do serious harm; and(c) Killing through reckless indifference; and(d) Selected partial defences to murder.
(3) Manslaughter:
(a) Killing with the intention to do serious harm;(b) Killing through recklessness, gross negligence or an unlawful and dangerous act;[6] or(c) Possibly some partial defences to intentional killing where the mitigating circumstances were exceptionally strong. An example is diminished responsibility coupled with the victim's consent to be killed. [Question 8]
SHOULD MURDER REMAIN A SEPARATE OFFENCE, OR OFFENCES?
Some advantages of confining "first degree murder" to intent-to-kill cases
2.13 We believe that confining "first degree murder" (and the mandatory life sentence) to intentional killing will bring the law of murder more into line with public opinion. The public opinion survey carried out by Professor Barry Mitchell[7] shows a very high level of agreement that an intent to kill is (subject to considerations of excusable motive) an indication that the crime was especially serious.
2.15 At a stroke, it would also consign to history a persistent problem that has arisen in the law governing the liability of accomplices to murder. At present, an accomplice can be guilty of murder (and will receive the mandatory life sentence) even when he or she was at cross-purposes with the actual perpetrator of murder. This can happen when the accomplice gives the perpetrator help, believing that the perpetrator will or may inflict only what the law regards as serious harm, but the latter secretly intends to and does kill. In this example the accomplice had the fault element for murder (an awareness that the perpetrator might act on an intention to do serious harm), just like the perpetrator, even though their intentions were different.[8] Under our provisional proposals, to be convicted of "first degree murder", the accomplice would have to have been aware that the perpetrator might kill intentionally.
Keeping the offence of "murder": the proposals of the CLRC
There does not appear to be any good reason why the crimes of murder and manslaughter should not both be abolished, and the single crime of unlawful homicide substituted; one case will differ from another in gravity, and that can be taken care of by variation of sentences downwards from life imprisonment.[9]
In modern English usage the word "murderer" expresses the revulsion which ordinary people feel for anyone who deliberately kills another human being. The phrase "the sanctity of life" is not a cliché. For many it has its foundations in religion – and not only in the Christian religion. The present is not, in our opinion, a time for change in this respect.[10]
2.19 Secondly, the Committee went on to say that:
If we were to propose the abolition of the separate crime of murder and its incorporation in a wider offence of unlawful homicide, many people … would be likely to think that the law no longer regarded the intentional taking of another's life as being especially grave.[11]
The "sanctity of life" argument
2.20 The notion of "sanctity of life" can be given a religious basis. As Professor John Kleinig puts it:
For some, the appeal to life's sanctity is intended to mark it out as something set apart for or consecrated to God. It is seen as God's special possession, as something over which God has jurisdiction.[12]
2.21 Closely associated with, although distinct from, this account of the sanctity of life is an account more consistent with a secular outlook, which is the view, quite simply, that, as Kleinig puts it, "life is … morally secured against (certain kinds of) interference."[13] We take no stand on which of these understandings of the "sanctity of life" is to be preferred to the other, if any preference is appropriate.
the teamwork of surgeons and the whole network of supporting staff, ancillary services, medical schools etc.; road safety laws and programmes; famine relief expeditions; farming and rearing and fishing; food marketing; the resuscitation of suicides; watching out as one steps off the curb.[14]
The norm excluding intentional killing of the innocent is the core of one of the Ten Commandments: 'Do no murder' [Exod. 20:2-17 at v.13]. In the Jewish and Christian scriptures, and the common morality of our civilisation, this ban did not mean 'Do not kill unless killing is necessary to secure some great(er) good.' Rather, it meant that the killing of human beings is excluded save where divinely authorised … while the precept also condemns some forms of reckless homicide, its core is the more specific norm: It is always wrong deliberately to kill the innocent.[15] [Emphasis added.]
2.29 It is, then, the prohibition on intentional or deliberate killing that best expresses the ideal of the sanctity of life, the idea that life must be, to recall Kleinig's discussion of the secular understanding, "morally secured against (certain kinds of) interference" [emphasis added].[16]
The argument of Sir Louis Blom-Cooper and Professor Terence Morris
2.32 Sir Louis Blom-Cooper and Professor Terence Morris have recently argued in favour of the abolition of the crime of murder.[17] The importance of their argument, and the influence that it has had, warrants special attention here. In their view, there should be a single offence of "criminal homicide". Matters such as provocation, diminished responsibility, and other mitigating factors, should be dealt with through the nature and degree of severity of the sentence given, not through a rigid structure of grades of offence and discrete (partial) defences, with all their complex restricting conditions.
2.33 There is powerful force in this argument. An argument for a single offence of unlawful homicide is also put forward by Victim Support.[18] They see virtue in ridding the law of the adversarial dimension to trials generated by the natural desire of defendants to see their crime reduced from murder to manslaughter. This, says Victim Support, often entails blaming the victim as part of the defence to the murder charge, a feature of trials they would like to reduce or eliminate. It may be, however, that reform of the doctrine of provocation as a partial defence to murder will address these concerns to some degree.[19]
2.34 Even if it were within our terms of reference to consider it, however, we do not agree that it is the right course to recommend the creation of a single offence of unlawful killing. If, for Blom-Cooper and Morris, fault is merely a factor to reflect in sentence, then that could logically be said to be true of the outcome (the victim's death) as well. Why single out unlawful killing for separate treatment, when it may purely have been chance that the victim died, and the result could have been more or less serious bodily harm done?[20] Let us consider this point further.
2.35 Professor Paul Robinson, has argued that causing death can, like the more culpable of the mental elements (intention/recklessness), be regarded as simply a matter of grading.[21] On his account, the rule one violates in homicide cases can be said to be a rule prohibiting unjustifiably harming someone simpliciter. On this view, the fact that one caused death is simply an aggravating factor, a possible ground for increasing the sentence.[22] It is not the basis for a separate offence.
2.36 We take it that Blom-Cooper and Morris would not wish to endorse this line of argument, if it led to the conclusion that there should be no separate offence focused on the fact that the defendant has committed "homicide".[23] In our view, though, if the fact that death has been caused can provide sufficient justification for the creation of a distinct offence worthy of special categorisation, so can the mental element with which it was caused.
Should "first degree murder", and the mandatory penalty, be further restricted?
(1) "First degree murder" could be confined to premeditated killings, as in France and in the criminal codes of some American states.
(2) Alternatively, it could be confined to the killing of a restricted range of victims, such as children, law enforcement personnel on duty, and so on.
(3) Finally, murder could be restricted by reference to the way in which it was done, by shooting, setting off an explosion, torturing someone to death, or the like.
2.40 We have not found any of these possible further ways of restricting murder attractive. To begin with, Parliament has already recently indicated how such factors are to influence the amount of time that an offender is to spend in custody for murder.[24] The great advantage of this 'guideline' approach is that it avoids too much pure 'legalism' creeping in to the question of whether someone is guilty of murder.
Premeditation
2.42 So far as premeditation is concerned, we note that Professor Mitchell's public opinion research indicates that premeditation may often be equated in people's minds with an intention to kill.[25] To that extent, our first proposal already accommodates the idea of premeditation.
2.43 It may be, however, that some people would support a distinction between literal premeditation – involving some element of planning beforehand – and a spontaneously formed intention to kill, as the legal basis for distinguishing "first degree murder" from "second degree murder".[26] We believe that this change would introduce intractable problems of proof, and would not create a fairer system.
2.44 Some killings may be premeditated only because the offender (an abused woman, say) rightly fears what the victim of the killing (the violent abuser) will do to her by way of revenge if he is in a position to repel the attack. It is not at all clear that the element of premeditation in such a case, motivated by fear, aggravates the offence. Similarly, the killing of a terminally ill spouse by a depressed carer is also likely to be to some degree premeditated, but should surely not for that reason be regarded as unworthy of mitigation. By way of contrast, it could not be proved that Ian Huntley premeditated the killing of Holly Wells and Jessica Chapman.[27] Yet we believe almost everybody would find it wholly unacceptable that he should not be found guilty of "first degree murder" for that reason.
As much cruelty, as much indifference to the life of others, a disposition at least as dangerous to society, probably even more dangerous, is shown by sudden as by premeditated murders. The following cases appear to me to set this in a clear light. … A man makes advances to a girl who repels him. He deliberately but instantly cuts her throat. A man civilly asked to pay a just debt pretends to get the money, loads a rifle and blows out his creditor's brains. In none of these cases is there premeditation unless the word is used in a sense as unnatural, as 'aforethought' in 'malice aforethought' but each represents even more diabolical cruelty and ferocity than that which is involved in murders premeditated in the natural sense of the word. [28]
Should "first degree murder" extend beyond intent-to-kill cases?
2.46 It is clear that prosecutors prefer the law as it stands, with conviction for murder extending beyond intent-to-kill cases, to cases in which someone has intended to do serious harm, and killed.[29] That preference is entirely understandable. It would be right to say, however, that the present law has a continuing potential to work injustice, because the notion of "serious harm" is vague. As one High Court Judge indicated to us:
Although inflicting grievous bodily harm with intent is often (or usually) serious, on occasion it can be committed in circumstances where death was highly unlikely, in the sense that the injury was not obviously life-threatening. Murder, in these circumstances, as the charge, is inappropriate.[30]
2.49 Our provisional proposal is that "first degree murder" should not encompass killing with intent to do serious harm, but if there turns out to be widespread disagreement with this, the definition of "serious harm" must be tightened up.[31]
2.50 In the past we have sought to address this problem by recommending that, other than in cases where there was an intention to kill, someone should not be convicted of murder unless they intended to do serious harm while being aware of a risk of causing death.[32] This option was overwhelmingly rejected by prosecutors.[33] They thought that such awareness would be unnecessarily difficult to prove in practice, and added little to the already existing need to prove an intention to do serious harm. We are not proposing it now, for reasons given in Part 3.
Should there be a further category of murder? "Second degree murder"
2.52 To reduce this tension, our provisional proposal is that murder should be divided into "first degree murder" and "second degree murder". These crimes would take their place in a hierarchy of general crimes of homicide, above the existing crime of manslaughter:[34]
(1) "First degree murder" (mandatory life sentence)
(2) "Second degree murder" (discretionary life sentence)
(3) Manslaughter (fixed term of years maximum penalty)
(1) the defendant had the intent to do serious harm to the victim; [Question 5]
(2) the defendant killed the victim through reckless indifference to causing death; [Question 6]
(3) the defendant killed the victim intentionally but has a partial defence. [Question 3]
2.67 Often, when a defendant has intentionally killed the victim[35] it has proved understandably difficult for prosecutors to explain to the victim's family that the offender's diminished responsibility means that he or she is not guilty of murder. This creates a sense of injustice, especially where the defence of provocation – which mostly involves 'blaming' the victim – is run alongside the diminished responsibility defence.
2.68 It is partly for these reasons that we are provisionally proposing that partial defences should have the effect in homicide cases of reducing "first degree murder" only to "second degree murder". We are also provisionally proposing that partial defences such as diminished responsibility would not be available in a prima facie case of "second degree murder" (that is, where the defendant killed with an intention to do serious harm or through reckless indifference). Rather, the relevant circumstances would be determined at a hearing to decide on sentence, in the way that Victim Support, for example, would prefer.[36]
2.69 Of course, not all actual or potential partial defences are equally mitigating. In principle, at least, some circumstances give rise to more compelling mitigation than provocation or diminished responsibility. There is an argument that such cases should not end in convictions for "second degree murder". Infanticide, the killing of an infant by his or her mother whilst the balance of the mother's mind was disturbed, provides an existing example.[37] Infanticide is a specific, lesser offence of homicide. Conviction for infanticide is usually followed by a non-custodial sentence. That contrasts with conviction for manslaughter by reason of provocation or diminished responsibility, when prison sentences of seven years and upwards are common.
2.70 In that regard, we can see a case for saying that when someone suffering from diminished responsibility killed with the victim's consent, this should result in conviction for, at most, manslaughter.[38] We believe that, as in the case of infanticide, the circumstances of mitigation are, at least in principle, more compelling than in provocation or diminished responsibility cases. As in infanticide cases, what makes the circumstances of mitigation in consensual 'mercy' killing cases more compelling, at least in principle, is that there is a special relationship or bond between offender and victim that is at the root of the offence (mother-child; killer-victim who has requested to be killed by the killer), as well as evidence of mental disturbance. That is not necessarily so in provocation, diminished responsibility or duress cases, where the victim may just have unluckily been in the wrong place at the wrong time.
A RADICAL ALTERNATIVE: ABOLISH ALL PARTIAL DEFENCES
There is no coherence to the way defences and partial defences interrelate
A threatens B that he will kill B unless B takes part with him in a burglary at V's house. B complies through fear although, knowing what A is like, he realises that A might kill V if V resists the burglary. They both enter V's house as trespassers and, whilst B looks for something worth stealing downstairs, A goes upstairs. Unseen and unheard by B, A kills V in a fit of temper in V's upstairs bedroom, when V seeks to eject him.
2.74 B can plead duress as a defence to his involvement in the attempted robbery. B must, however, be convicted of the murder of V, because duress is no defence to murder.[39]
2.75 This is an odd result: in relation to the same act (knowing entry as a trespasser), B can plead duress as a complete defence to the crime in which he was actually a perpetrator (burglary), but he cannot plead it, even as a partial defence, to the crime in which he was only complicit and not an actual perpetrator (murder).[40]
2.76 What is also odd about the conclusion is that there is, in theory at any rate, a partial defence of provocation available to A, even though he was the actual perpetrator of the murder. The fact that V may in law have been entitled to eject A from the house does not change the fact that A can plead provocation taking the form of V's resistance.[41]
2.77 Finally, consider this variation on the facts. As is well-known, if V were deliberately to kill A or B, candidly admitting that this was because A or B had entered the house as a trespasser, V would almost certainly have no defence to murder. Rather V's conduct would most probably be regarded as falling outside the scope of what it was reasonable to do in prevention of crime, even in the heat of the moment. By way of contrast, if V claimed to have been provoked to kill A or B because V was incensed by the presence of an intruder, the defence of provocation would be available, and there would be a very good prospect of success. There is obviously a sound moral distinction, in theory, between these two claims that V might make. The first involves a mistake of law as to the limits of a justification (permissible force in prevention of crime), whereas the second involves a largely excusatory claim (anger at a violation of property). However, the absence of any partial excuse of excessive-force-in-defence gives V an incentive to lie about his motives for acting. This threatens to bring the criminal justice system into disrepute.[42] There is, moreover, no burden of proof on V to show that his claim lies in provocation rather than prevention of crime. Once raised, provocation must be disproved beyond reasonable doubt by the prosecution.
Defence rules have become over-complex and are applied inconsistently
2.78 Success or failure in a provocation plea, and hence whether or not the defendant receives the mandatory life sentence, may often turn on one or more of a whole range of finely-judged matters.[43] These include whether the defendant's reaction was influenced wholly or partly by self-induced intoxication; whether a characteristic affected the defendant's level of self-control as well as the gravity of the provocation; and (possibly) whether there were reasonable grounds for thinking the victim had made a remark in a particularly provocative way.
2.79 This is also true of duress cases, where the requirements that the defendant must meet to plead the defence, even in principle, have become ever more complex. These requirements, too, have been the subject of numerous appeals, leading to decisions that remain in conflict.[44] The availability of the defence of duress can turn on such finely judged questions as whether an opportunity to escape the threat was not reasonably perceived or whether it was unreasonably spurned, or on whether a non-existent threat was reasonably believed to exist.
2.80 As in provocation cases, there are complex rules for duress concerning the relevance of an individual's characteristics to the question of whether a reasonable person in his or her situation might have reacted in a similar way.[45] It remains hard to say to what extent, if at all, there can or should be consistency in the way that these rules are devised, as between provocation, duress and, for that matter, self-defence. The Court in Graham (a duress case)[46] thought there was an analogy with the provocation defence, and that the rules in each defence should run on parallel lines. It has proved impossible for the courts to ensure that this happens. That is likely to prove a considerable embarrassment, should the defence of duress be extended in any form to murder.
2.81 Further, if provocation is run alongside self-defence, yet more subtle differences between the applicable rules will arise. On the one hand, in self-defence cases, a threat need only honestly be believed to exist.[47] On the other hand, in duress, and probably by analogy in provocation cases, a belief that a threat or provocation has been made or given must be based on reasonable grounds.[48] So, an unreasonable belief that a threat has been made will suffice to ground a plea of self-defence, although it would be insufficient to ground a provocation plea in the very same case.
2.82 By way of contrast, whereas evidence of mental instability in relation to the subjective condition can be given in provocation cases to show that the defendant had in fact lost his or her self-control upon provocation,[49] it seems that such evidence will be of much more restricted relevance in self-defence cases. Such evidence is relevant to whether or not the defendant perceived a threat, but not to be taken into account in assessing the degree of danger thought to be posed by the threat.[50]
2.83 Problems with the complexity of legal rules designed to help juries reach morally defensible verdicts may be found even in simpler cases, such as excessive-force-in-defence. We have recommended that it should be a lesser offence of homicide when the defendant, in killing through an over-reaction, was reacting to a fear of serious violence.[51] 1 Even in such cases, there would inevitably be considerable variation over the seriousness of the threatened violence that juries regarded as justifying a verdict of "second degree murder", when the defendant had killed intentionally in response to it.
2.84 In Smith (Morgan),[52] an attempt was made by the House of Lords to make inroads on the complexity of the rules, in so far as they govern provocation cases. The House of Lords sought to give the jury the power to decide when it would be just to take the defendant's individual characteristics into account, in assessing the level of self-control to be expected, rather than relying on legal rules to decide that question. The decision has, however, been condemned in academic literature, and rejected by the Privy Council.[53] It seems unlikely that such an attempt will succeed again.
2.85 An important question must be asked, then, of provocation, excessive-force-in-defence, and duress, as they bear on murder cases. Would it not be better to make any provocation received, duress applied, or threat responded to, relevant only to the length of the recommended custodial part of sentencing under the aegis of the mandatory sentence? This would in effect dispense with a whole body of complex legal rules whose main function is to guide a jury to a morally defensible verdict when a defence has been pleaded.[54] [Question 4]
2.87 The rigidity of English law, in this respect, contrasts with the position in French law. In French law, in respect of any crime, where the defendant's understanding or control of his or her actions is impeded by a mental disorder, the action remains punishable but "the court shall take this [the mental disorder] into account when it decides the penalty and determines its regime."[55] In German law, someone who commits homicide but is found to be suffering from diminished responsibility must be sentenced to a term of imprisonment of no less than three years.[56]
Schedule 21 to section 269 of the Criminal Justice Act 2003
2.90 It would be possible to create a 'mirror' schedule dealing with recommended minimum periods for the custodial part of the sentence in cases of "mitigated" murder. So, it could be made clear that, for example, evidence of gross provocation warranted a seven year starting point; evidence of substantial duress or threat of violent attack warranted a three year starting point, or that evidence of the circumstances of what is now infanticide warranted a starting assumption that the appropriate order is a non-custodial psychiatric order. The evidence in question would be given at a suitably modified post-trial Newton[57] hearing, where the factual basis for sentencing is established.
2.95 Further, there would be a serious drawback about this radical approach, so far as the consequences for sentencing are concerned. A small proportion of those sentenced to murder are released from the custodial part of the sentence within a ten year period. When we examined a recent sample of these cases, we found that there was almost always some evidence of provocation or mental disorder, or an element of self-defence.[58] These offenders, who were sometimes relatively young at the time of the offence, stood to spend perhaps 30 to 40 more years out on licence, liable to be recalled to prison.
FAULT ELEMENTS AND THE STRUCTURE OF THE LAW OF HOMICIDE
2.97 The current distinction between murder and manslaughter is in part founded on the understanding that, other things being equal, intending to kill (murder) is more blameworthy, in principle, than killing by gross negligence or recklessness (manslaughter). Moreover, within manslaughter, killing recklessly is recognised to be more blameworthy than killing by gross negligence because recklessness implies an awareness at the relevant time that there was a risk of death whereas negligence need not involve such awareness. This understanding is reflected in the order in which fault terms appear in the general fault provision of the Model Penal Code of the United States. This says that no-one is to be convicted of a criminal offence unless "he acted purposely, knowingly, recklessly, or negligently, as the law may require, with respect to each material element of the offence".[59]
2.98 These are not the only fault elements that might be considered appropriate for a crime of homicide. Some jurisdictions, for example, employ the notion of "indifference" to a risk of death in their criminal codes.[60] "Indifference" – a "couldn't care less attitude" – was also used by English courts as a term for the fault element in rape before the reforms effected by the Sexual Offences Act 2003.[61] So, the courts are to some extent used to directing juries on it. We provisionally propose that it is employed as one way of proving fault in "second degree murder".
2.100 There has, however, always been a puzzle about how to relate, on the one hand, the intention to do serious harm (but not to kill), and on the other hand, recklessness or gross negligence as to causing death. Is the former more blameworthy, and hence rightly regarded as sufficient to justify a murder conviction where death results, because the serious injury was done intentionally? Or, is the latter more blameworthy because the gross negligence or recklessness must relate to a risk of causing death, gross negligence or recklessness as to the risk of causing serious harm being insufficient?[62] 2.101 In shedding some light on the answers to these questions, it is helpful to set out two principles linked to the use of fault terms in the criminal law. Following common practice we will refer to the first of these as the "correspondence principle", and to the second as the "subjectivity principle".[63]
(1) Correspondence principle: the fault element should relate to the harm done for which someone is being held liable (killing);
(2) Subjectivity principle: the fault element should be concerned with the defendant's state of mind at the time of his or her actions.
2.102 These principles are far from absolute, but they are a useful reference point in analysing the nature and use of fault terms within the criminal law. They tend to influence, rather than determine, the character of criminal offences with fault elements. For example, the American Model Penal Code provision[64] on criminal fault requirements respects the correspondence principle, but not the subjectivity principle. That is because, whilst it insists that fault must relate to all material elements of the offence (the correspondence principle), it permits use of a non-subjective kind of criminal fault, negligence, in breach of the subjectivity principle.
(1) "first degree murder" is confined to intentional killing, intention being the most blameworthy fault element;
(2) intention in "first degree murder" must relate to the most important external element of the offence (causing death); and
(3) intention is a subjective fault element. (1) and (2) are clearly reflections of the two principles just set out.
2.108 Finally, manslaughter by gross negligence (including reckless stupidity[65]) is a lesser degree of homicide than "first degree murder" or "second degree murder" because it permits conviction even when the defendant did not realise he or she might be posing an unjustified risk of death by his or her conduct. This is a breach of the subjectivity principle. Moreover negligence is the lowest rung of the fault "ladder" in homicide, a rung it shares with unlawfully and knowingly posing a risk of some harm and thereby causing death.
(1) "First degree murder" (intention to kill):
• Correspondence principle: YES• Subjectivity principle: YES• Blameworthiness of fault element: HIGHEST
(2) "Second degree murder" (intention to do serious harm):
• Correspondence principle: NO• Subjectivity principle: YES• Blameworthiness of fault element: HIGHEST
(3) "Second degree murder" (reckless indifference):
• Correspondence principle: YES• Subjectivity principle: YES• Blameworthiness of fault element: MIDDLE-HIGH
(4) Manslaughter by gross negligence:
• Correspondence principle: YES• Subjectivity principle: NO• Blameworthiness of fault element: MIDDLE-LOW
(5) Manslaughter by unlawful and violent act:
• Correspondence principle: NO• Subjectivity principle: YES
• Blameworthiness of fault element: MIDDLE-LOW
The issue of fault in murder is considered further in Part 3.
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Note 1 Mitchell [1983] QB 741. [Back] Note 2 Hancock and Shankland [1986] AC 455. [Back] Note 3 For a case close to this, see Commonwealth v Malone [1946] (Pennsylvania) 354 Pa 180, 47 A 2nd 445, discussed in Part 3. [Back] Note 4 This proposal is drawn from, and is meant to reflect, the Home Office Paper Reforming the Law on Involuntary Manslaughter: The Government’s Proposals (2000). [Back] Note 5 We say “partial defences”, rather than referring to provocation, diminished responsibility and duress, because we appreciate that some consultees will wish to see a different selection of partial defences (possibly wider or possibly narrower) within second degree murder. [Back] Note 6 This replicates the present law. [Back] Note 7 Contained in Appendix A. [Back] Note 8 See Powell & Daniels; English [1999] 1 AC 1. The House of Lords attempted to ameliorate the problem by saying that if there is a “fundamental difference” between what the perpetrator intended to do, and what the accomplice thought he or she might do, the latter is not complicit in the perpetrator’s murder. Unfortunately, the concept of “fundamental difference” has not proved to be an easy one to apply. Further, the House of Lords has made it clear that, in cases where there is a fundamental difference between what the perpetrator and the accomplice intended, the accomplice is guilty of neither murder nor manslaughter. This seems to us too generous to the accomplice: see Part 5. [Back] Note 9 Hyam v DPP [1975] AC 55, 98. [Back] Note 10 Criminal Law Revision Committee, Offences Against the Person (1976) Report 14, para 15. [Back] Note 12 J Kleinig, Valuing Life (1991) 18. [Back] Note 14 J Finnis, Natural Law and Natural Rights (1980) 86. [Back] Note 15 J Finnis, J Boyle, and G Grisez, Nuclear Deterrence, Morality and Realism (1986) 78. [Back] Note 16 J Kleinig, Valuing Life (1991) 19. As Finnis, Boyle and Grisez suggest, this more specific norm is not a belief confined to the Judeo-Christian tradition. It is a belief much more widely held than that. [Back] Note 17 L Blom-Cooper and T Morris, With Malice Aforethought: A Study of the Crime and Punishment for Homicide (2004). [Back] Note 18 Response to Partial Defences to Murder (2003) Consultation Paper No 173. [Back] Note 19 See Partial Defences to Murder (2004) Law Com No 290; see also Part 6. [Back] Note 20 This point seems especially pertinent in the light of the fact that in Blom-Cooper and Morris’s definition of “criminal homicide” a distinction is drawn between simply causing serious physical harm to another person, to which the various fault elements – such as intention and recklessness – are relevant, and the crucial fatal result, to which they are not: L Blom-Cooper and T Morris, With Malice Aforethought: A Study of the Crime and Punishment for Homicide (2004) 175. [Back] Note 21 See P Robinson, “Should the Criminal Law Abandon the Actus Reus-Mens Rea Distinction?” in S Shute, J Gardner and J Horder (eds), Action and Value in Criminal Law (1993) 211. [Back] Note 22 See, in the driving context, Boswell (1984) 6 Cr App R (S) 257. [Back] Note 23 It should be noted that this is not Robinson’s conclusion: P Robinson, “Should the Criminal Law Abandon the Actus Reus-Mens Rea Distinction?” in S Shute, J Gardner and J Horder (eds), Action and Value in Criminal Law (1993) 211. [Back] Note 24 Criminal Justice Act 2003, s 269, sched 21. [Back] Note 25 See Appendix A. [Back] Note 26 For an academic discussion, see M Kremnitzer, “On Premeditation” (1998) 1 Buffalo Criminal Law Review 627. [Back] Note 27 See Issue 36 Criminal Law Week (2005) 10. [Back] Note 28 Sir J F Stephen, A History of the Criminal Law of England: Vol iii (1883) 94. [Back] Note 29 See Appendix B. [Back] Note 30 See Appendix C. [Back] Note 31 A possible way of doing this is discussed in Part 3. [Back] Note 32 Draft Criminal Code, cl 54(1), appended to Criminal Law: A Criminal Code for England and Wales (1989) Law Com 177. [Back] Note 33 See Appendix B. [Back] Note 34 We note, in addition, that some other jurisdictions follow this kind of pattern in grading homicide. See the summary of the papers from Professors Finkelstein (USA) and Holland (Canada) and from A Pedain (Germany) in Appendix D. See also V Krey, German Criminal Law: Vol ii (2003) paras 343-344. [Back] Note 35 See eg the facts of Byrne [1960] 2 QB 396, a diminished responsibility case. [Back] Note 36 We are asking separately whether duress should be a matter only for sentence in “second degree murder” cases or should entail a complete acquittal: see Part 7. [Back] Note 37 See the Infanticide Act 1938, which makes infanticide both an offence and a partial defence. Infanticide is discussed in Part 9. [Back] Note 38 See the discussion in Part 8. [Back] Note 39 We provisionally propose that duress should reduce “first degree murder” to “second degree murder”. See Part 7. [Back] Note 40 B is complicit in the murder of V because, by his intentional participation in the burglary, knowing of what A might do, he lends implicit ‘moral support’ to A when A kills V. See Part 5. [Back] Note 41 For a striking example of such ‘self-induced’ provocation resulting in acquittal of murder and conviction for manslaughter only, see Naylor (1987) 9 Cr App R (S) 302. Our proposals for reform of the doctrine of provocation would remove this anomaly: see Partial Defences to Murder (2004) Law Com No 290. [Back] Note 42 For that reason, we recommended in Partial Defences to Murder (2004) Law Com No 290 that fear of serious violence should sit alongside gross provocation as a basis for partially excusing a killing. In the example in the text, V would have to show that he killed A or B either because he feared serious violence might be done to him, or because he was incensed by the gross provocation constituted by the property violation. [Back] Note 43 See Appendix E. [Back] Note 44 Contrast Graham [1982] 1 WLR 294 with Martin (David Paul) [2000] 2 Cr App R 42. [Back] Note 45 See Emery (1993) 14 Cr App R 394; Bowen [1997] 1 WLR 372. [Back] Note 46 [1982] 1 WLR 294. [Back] Note 47 Williams (Gladstone) [1987] 3 All ER 411. [Back] Note 48 Graham [1982] 1 WLR 294; but see the somewhat dubious authority, on provocation, of Letenock (1917) 12 Cr App R 221. [Back] Note 49 Lynch (1832) 5 C & P 324. [Back] Note 50 Martin (Anthony) [2001] EWCA Crim 2245, [2003] QB 1. [Back] Note 51 Partial Defences to Murder (2004) Law Com No 290, para 3.168. [Back] Note 52 [2001] 1 AC 146. [Back] Note 53 A-G for Jersey v Holley [2005] UKPC 23, [2005] 3 WLR 29. [Back] Note 54 This solution is considered in paras 2.89-2.96. [Back] Note 55 Article 122.1 of the French Penal Code. [Back] Note 56 See Appendix D. [Back] Note 57 Newton (1983) 77 Cr App R 13. [Back] Note 59 Model Penal Code § 2.02. [Back] Note 60 See Appendix D. [Back] Note 61 See eg Satnam and Kewal Singh (1983) 78 Cr App R 149. [Back] Note 62 See Adomako [1995] 1 AC 171. [Back] Note 63 See A Ashworth, Principles of Criminal Law (4th ed 2003) 89, 162-3. [Back] Note 65 Reckless stupidity is where the defendant foresees a risk of death from his or her conduct, but goes ahead thinking that the risk is justified to take or, even if unjustified, so unlikely to turn into reality that there is no need to change his or her course of action. This decision making process is what distinguishes it from reckless indifference: see Part 3. [Back]
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