The Law Commission

PART 5

CRIMINAL LAW, EVIDENCE AND PROCEDURE

DR JEREMY HORDER COMMISSIONER
TEAM MEMBERS^[1]
Government Legal Service
David Hughes (Team Manager)
Janet Cowdrey
Raymond Emson
Elizabeth Finlason
Simon Tabbush
Clare Wade

Research Assistants
Christopher Draycott
Jeremy Easton
Elizabeth Emery
Laura McGowan
Claire Murray
Keren Murray


Review of homicide

5.1      In August 2004, the Commission published a report^[2] which concluded that the law of murder in England and Wales "is a mess". The report recommended that there should be a general review of the law of murder, including the application of the mandatory life sentence. In July 2005 the Government announced that there would be a two-stage review of the law of murder. In the first stage the Law Commission will build on its previous work on the partial defences to murder, analyse the whole of the current law of murder, and make recommendations for reform. The Commission's recommendations will feed into the second stage, in which the Government will conduct a review of the wider policy issues. In announcing the review, the Government stressed that it was committed to the continuing existence of the mandatory life sentence.
5.2      The Commission published a consultation paper on 20 December 2005.^[3] In preparing it, the Commission was able to take account of a survey of public opinion conducted by Professor Barry Mitchell and of comparative law papers that had been prepared by distinguished jurists.
5.3      The Commission concluded that the current structure of the law of homicide is unsatisfactory because each of the two general homicide offences upon which it is based – murder and manslaughter – are too broad in scope. Instead, the paper provisionally proposed that there should be a graduated structure of general homicide offences:

first degree murder (mandatory life sentence),

second degree murder (discretionary life sentence), and

manslaughter (fixed term of years maximum sentence).

The three offences should be supplemented by specific homicide offences, for example assisting suicide and infanticide.

5.4      First degree murder would be confined to unlawful killings committed with an intention to kill. Where a partial defence applied (such as provocation, diminished responsibility or duress) the unlawful killing would be classed as second degree murder. Second degree murder would also comprise all unlawful killings committed with an intention to cause serious harm and all unlawful killings committed with a reckless indifference to causing death.
5.5      Manslaughter would consist of unlawful killings caused by acts of gross negligence and unlawful killings caused by a criminal act that was intended to cause physical harm or by a criminal act foreseen as involving a risk of causing physical harm.
5.6      Following publication of the consultation paper, the Commission's Chairman and Criminal Law Team have held a series of meetings, seminars and road-shows with members of the judiciary, criminal justice practitioners, academics, psychiatrists, those who work with victims' families, groups promoting the interests of women, human rights organisations and parliamentarians. The Commission's recommendations will be contained in a report to be published in Autumn 2006.

Assisting and encouraging crime

5.7      The Commission had considered in the past^[4] the scope and structure of the law relating to the liability of those who assist and encourage others to commit offences. That law was and remains complicated, uncertain and anomalous. It also raises important and difficult policy issues.
5.8      The Commission's intention was to publish a consultative report and draft Bill in Summer 2005. However, the Commission subsequently decided that it would be preferable to issue two reports, each accompanied by a draft Bill. One would be devoted to inchoate liability for assisting or encouraging the commission of an offence while the other would consider secondary liability for assisting or encouraging the commission of an offence.
5.9      At common law, whether a person (D) incurs secondary liability for assisting or encouraging another person (P) to commit an offence depends on whether P goes on to commit the offence. If P does so, D is secondarily liable and is guilty of the offence that P commits.
5.10      However, if P, for whatever reason, does not commit the offence, D may be inchoately liable provided that he or she encouraged P to commit the offence. D is guilty of the common law inchoate offence of incitement. By contrast, if D assisted P to commit an offence that P subsequently does not commit, D incurs no criminal liability at common law.
5.11      The Commission will shortly be publishing a report and draft Bill on inchoate liability for assisting or encouraging offences. The Commission hopes to publish its report and draft Bill on secondary liability for assisting or encouraging another person to commit an offence in Autumn 2006.

Judicial review of crown court decisions

5.12      Decisions of the Crown Court are only amenable to Judicial Review if they are not "matters relating to trial on indictment".^[5] The rationale for the exclusion is easily identifiable. Judicial Review should not be a means of delaying trials and clogging up the criminal justice process. The problem has been in locating the boundary of the exclusion. The expression "matters relating to trial on indictment" has proved to be a fertile source of argument giving rise on numerous occasions to lengthy, time-wasting and expensive litigation.
5.13      The Commission has been considering how the High Court's criminal jurisdiction over the Crown Court might be simplified and, if appropriate, modified together with the implications for the High Court's criminal jurisdiction over magistrates' courts and courts martial.
5.14      In July 2005, the Criminal Law Team issued a scoping paper setting out a number of discussion issues on which it invited comment. Following consideration of the responses, the Commission intends to publish a consultation paper in the second half of 2006 to be followed by a final report in the first half of 2007.

Codification of the criminal law

5.15      This project consists of reviewing and revising Part 1 of the Criminal Code of 1989.^[6] In our annual report 2004/2005, we said that it was our intention during 2005/2006 to publish discrete consultation papers on some of the seven tranches that make up Part 1. Unfortunately, the resources that have had to be committed to the review of murder has resulted in limited progress on this project.
5.16      Currently, our work in this area is focused on intoxication, corporate criminal liability, the use of defensive force and the preliminary offences of attempt.

Note 1    Including those who were at the Commission for part of the period.    [Back]

Note 2    Partial Defences to Murder, Law Com No 290.    [Back]

Note 3    A New Homicide Act for England and Wales? Consultation Paper No 177. In addition, the Commission also published a shorter paper: A New Homicide Act for England and Wales? An Overview, Consultation Paper No 177 (Overview).    [Back]

Note 4    Assisting and Encouraging Crime (1993) Consultation Paper No 131.    [Back]

Note 5    Supreme Court Act 1981, s 29(3).    [Back]

Note 6    Criminal Law: A Criminal Code for England and Wales, Law Com No 177.    [Back]