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You are here: BAILII >> Databases >> The Law Commission >> Homicide: Murder, Manslaughter And Infanticide (Report) [2006] EWLC 304(2) (28 November 2006)
URL: http://www.bailii.org/ew/other/EWLC/2006/304(2).html
Cite as: [2006] EWLC 304(2)
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PART 2
STRUCTURE WITHIN THE LAW OF HOMICIDE
A THREE-TIER STRUCTURE
Why a further tier is necessary
Approaches for reform that we reject
Retaining a two–tier scheme but re-aligning murder and manslaughter
RESTRICTING MURDER TO INTENTIONAL KILLING
EXPANDING MURDER TO INCLUDE ALL KILLINGS WHERE THERE WAS AN INTENTION TO CAUSE SOME HARM
DEFINING MURDER TO INCLUDE KILLING WHERE THE DEFENDANT IS 'RECKLESS' AS TO CAUSING DEATH
2.14 As we argued in Part 1,[1] one of the things wrong with the inclusion of killing through an intention to do serious harm within murder is that this makes murder both too broad and too narrow. It is too broad in that it currently covers death unforeseeably caused during a 'punch up' that gets out of hand through to death caused by prolonged use of excruciating torture. It is too narrow in that it does not cover the case of someone who intends to expose another person to a risk of death without as such intending them to suffer serious harm, as in the example where the killer plants a bomb and gives a warning that unexpectedly turns out to be insufficient.[2]
2.17 We do not believe that it will prove possible to re-draw the line between murder and manslaughter to eliminate arbitrariness or anomaly without creating a middle tier of homicide. Broadly speaking, fault elements with a wide ambit, such as the intention to do 'serious' harm (or recklessness, in some form, as to death) are best attached to crimes with a discretionary sentence. In that way, the wide variety of circumstances in which the crimes come to be committed with that fault element can be reflected in the sentence. Accordingly, these fault elements are more suited to our recommended middle tier offence of second degree murder.[3]
A single homicide offence
The approach that we recommend
A three-tier structure
2.26 Having consulted widely with experienced legal practitioners, amongst others, we are confident that a three-tier structure strikes the right balance. Most significantly, prosecutors, defence advocates and judges have not objected to the three-tier structure on the grounds that it would prove to be too complex. There is already a tiered structure in place for non-fatal offences that has for many years been understood in much the same way that we anticipate our scheme for fatal offences would be understood.[4] Although the content of the non-fatal offences has been frequently criticised, the three-tier statutory structure in which they are situated has not been the subject of criticism.
2.27 Our confidence that a three-tier structure would be workable is bolstered by the existence of an already developed practice amongst judges of providing written directions to juries in murder cases. These directions commonly explain how the facts relate to the law of murder in simple terms and give an indication of the order in which the jury should address the issues arising at trial. It has been shown that written directions, as opposed to purely oral ones, are more frequently understood, remembered and followed correctly.[5]
[T]he principled development of sentencing guidelines requires the avoidance of overly broad offences. Such offences fail to make explicit the moral distinctions which should be reflected in the law, and they lump together very different forms of conduct under a single, misleading offence label. Sentencing coherence in homicide, it seems, depends on offences being arranged hierarchically, and with gradations within those offences being clearly based upon the different degrees of offender culpability for causing death.[6]
2.31 So far as the structure of offences is concerned, we disagree with this hypothesis. There is a four-tier structure to the Home Office's proposed reforms of non-fatal offences of violence even though none of the offences carries a mandatory sentence.[7] Even if there were minimum or maximum rather than mandatory sentences for homicide offences, we would still recommend that such offences should be tiered according to their seriousness.
2.32 Under our recommendations, there would continue to be specific offences of homicide, such as infanticide, which would buttress the general homicide offences.[8]
An alternative three-tier scheme including an 'aggravated' offence of murder
2.35 Whilst there could be no doubt that these are all aggravated forms of murder, we regard the aggravating features as best reflected through an uncompromising approach to the length of the minimum custodial sentence imposed for murder. This is the law's approach at present.[9] We explain in paragraphs 2.166 to 2.169 below our belief that the difficulty in settling the precise scope of the 'aggravated' murder category would cause as many problems as the creation of the category solves. We do not favour a three-tier structure that includes an offence of 'aggravated' murder.
OFFENCE LABELS
2.39 Some consultees preferred different labels. The Higher Court Judges' Homicide Working Party suggested a division (in descending order of seriousness) between murder, 'grave homicide' and manslaughter. The organisation Justice suggested a division between murder, 'culpable homicide'[10] and manslaughter. Nicola Padfield suggested a division between murder, manslaughter and 'unlawful killing'.
2.40 What unites these different viewpoints is a judgement that, even after (or perhaps because of) more than 500 years of usage, the terms 'murder' and 'manslaughter' still have a role to play as terms distinguishing between offences. The same or broadly analogous terms (whatever their substantive content) are in use in almost all English-speaking jurisdictions.[11]
HOW SHARPLY DO OFFENCES NEED TO BE DISTINGUISHED?
2.47 It may, for example, be possible to think of a case of gross negligence manslaughter where the negligence was so gross that the killing could justifiably be regarded as equally as bad as a case of second degree murder, even though our criteria for satisfying the fault elements of the latter crime have not been met.[12] This does not necessarily mean that there has been any mistake in the way in which the tiers of homicide have been divided. A ladder of offence seriousness is defensible so long as, by and large, the cases that fall within a particular tier are, other things being equal, more serious than the cases that, by and large, fall within the tier below.[13]
2.48 This point is illustrated by the way in which the non-fatal offences are currently broadly divided, according to a ladder principle of offence seriousness.[14] Generally, 'malicious wounding with intent to do grievous bodily harm'[15] can be regarded as more serious than 'maliciously wounding or inflicting grievous bodily harm'.[16] The way that these offences are distinguished (a lesser fault element sufficing for the latter offence) ensures that, by and large, morally less heinous cases of doing injury will fall only within that latter offence where no specific intent to do grievous bodily harm need be proved.[17]
FIRST DEGREE MURDER
2.50 We recommend that first degree murder should encompass:
(1) intentional killings, and
(2) killings with the intent to do serious injury where the killer was aware that his or her conduct involved a serious risk of causing death.
The provisional proposal in the CP
2.52 At present, murder includes not only intentional killing but also killing through an intention to do serious harm. We explained in Part 1[18] that this can lead to some killers who did not intend to kill being inappropriately labelled as murderers rather than guilty of a lesser homicide offence. This can happen when the offender neither intended to kill nor thought that the harm he or she was intentionally inflicting involved any risk of causing death (although the harm intended was adjudged serious by the jury).
Responses to the provisional proposal
The impact of the responses on our thinking: a wider definition of first degree murder
The advantages of our recommendation compared to our provisional proposal
2.59 First, we are mindful of the fact that, after extensive thought and consultation, a similar fault element to the one we are now recommending was proposed for the law of murder in the Draft Criminal Code of 1989. With adjustments made to the Code team's formulation to make it fit with the three-tier structure for homicide offences that we are now recommending, we believe that it would be right to continue to endorse the broad thrust of the formulation in the Draft Criminal Code.[19]
2.60 Secondly, we accept the arguments that some kinds of killings that were not intended are so especially heinous that they should be regarded as, morally speaking, virtually indistinguishable from intentional killings (putting aside questions of justification and excuse). Consultees such as Professor Wilson, for example, argued that, 'some reckless killings attract far more revulsion and indignation than some intentional killings'.[20] The degree of emotional agitation a killing generates may not in itself be a good or reliable measure of how serious that killing really is but we have tried to accommodate this 'moral equivalence' argument in the revised structure. We have sought to do this by including within first degree murder, alongside intentional killing, killing through an intention do serious harm aware that one's conduct poses a serious risk of causing death.[21] The argument for doing so was well put over 120 years ago by judge and jurist Sir James Stephen, when he said:
[I]s there anything to choose morally between the man who violently stabs another in the chest with the definite intention of killing him, and the man who stabs another in the chest with no definite intention at all as to his victim's life or death, but with a feeling of indifference whether he lives or dies? It seems to me that there is nothing to choose between the two men, and that cases may be put in which reckless indifference to the fate of a person intentionally subjected to deadly injury is, if possible, morally worse than an actual intent to kill.[22]
[T]here is no reason to doubt the common sense which tribunals of fact bring to their task. In a contested case based on intention, the defendant rarely admits intending the injurious result in question, but the tribunal of fact will readily infer such an intention, in a proper case, from all the circumstances and probabilities and evidence of what the defendant did and said at the time.[23]
How our recommendation would be an improvement on the existing law
2.64 First, as further recommendations which we set out below make clear,[24] our recommendation for what should constitute first degree murder forms part of the creation of a proper 'ladder' of homicide offences, in order of seriousness, which the present law fails to provide. The recommendation would do this by eliminating the legal anomalies identified in Part 1 which result in the definition of murder being in some respects too narrow and in some respects too broad.
2.65 Secondly, implementation of the recommendation for what should constitute first degree murder would bring the law somewhat closer to what Parliament (mistakenly, as it turned out) thought the law was when it decided against providing a comprehensive definition of the fault element for murder in the Homicide Act 1957.[25]
2.67 Under the present law, Parliament has acknowledged that there is potentially a large gap in point of culpability within murder, namely between an intention to kill and an intention to do serious harm (where there was no awareness of a risk of death). In consequence, Parliament now requires a judge to decide which of these intentions D acted on and to take that into account when determining the length of the initial period in custody of the mandatory life sentence.[26] In one way, that is a commendable attempt to see that justice is done. It is, however, open to the objection that it requires the judge to trespass on what should be a question for the jury: the question of D's intent (whether there was an intention to kill or only an intention to do serious harm).[27]
2.69 We recommend that first degree murder should encompass:
(1) intentional killings, and
(2) killings with the intent to cause serious injury where the killer was aware that his or her conduct involved a serious risk of causing death.
SECOND DEGREE MURDER
2.70 We recommend that second degree murder should encompass:
(1) killings intended to cause serious injury; or
(2) killings intended to cause injury or fear or risk of injury where the killer was aware that his or her conduct involved a serious risk of causing death; or
(3) killings intended to kill or to cause serious injury where the killer was aware that his or her conduct involved a serious risk of causing death but successfully pleads provocation, diminished responsibility or that he or she killed pursuant to a suicide pact.
The different functions that second degree murder would perform
Why killing through an intention to do serious injury (but without awareness that there was a risk of causing death) should be treated as second degree murder
2.79 The main objection to placing killings where there was an intention to do serious harm within (second degree) murder is that this would be a breach of the so-called 'correspondence' principle.[28] This is the principle that the fault element must correspond (relate) to each and every element of the prohibited conduct. In homicide cases (and especially in murder cases), it is said to mean that, whatever D's actual intention, he or she must have been at least aware of a risk of causing death. In our view, to have acted on an intention to do serious harm, and thereby killed, is already to have shown such a high degree of culpability that liability for second degree murder is justified. Nonetheless, it is a mistake to suppose that the correspondence principle cannot be satisfied in such cases.
2.80 Where someone kills having intended to do serious harm, in all but the most exceptional instances such a person will have made V's death a foreseeable consequence of his or her conduct. This provides sufficient connection or 'correspondence' in point of fault between what D intended and the killing, whether or not there was actual awareness that death might be caused.[29]
The meaning of 'injury'
2.82 In both fatal and non-fatal offences against the person, the law has traditionally employed the term 'bodily harm' to describe the kind of harm that must be intended. In recent years, the courts have extended the term 'bodily harm' to include a recognised psychiatric disorder or illness.[30] The Court of Appeal justified this, saying:
The first question … is whether the inclusion of the word "bodily" in the phrase "actual bodily harm" limits harm to harm to the skin, flesh and bones of the victim …. The body of the victim includes all parts of the body, including his organs, his nervous system and his brain. Bodily injury therefore may include injury to any of those parts of his body responsible for his mental and other faculties … it does not include mere emotions such as fear or distress or panic nor does it include, as such, states of mind that are not themselves evidence of some identifiable clinical condition.[31]
2.84 However, the continued use of the term 'harm', has meant that there has been a further appeal to stretch the meaning of 'bodily harm'. There has been a claim that it should include severe or persisting emotional states, such as a severely depressed state of mind that does not amount to a recognised psychiatric illness or injury. Although the courts rejected this claim,[32] we still think that the word 'injury' is more certain in scope than 'bodily harm' and should put an end to such speculative appeals.
2.85 We recommend that the term 'injury' should be used instead of the words 'bodily harm'.
Should 'serious' injury be defined?
2.86 An important question for us in the CP was whether consultees thought that 'serious' harm (our preferred term is now serious 'injury') should be defined by law. At present, when someone is charged with murder on the basis that they killed through an intention to do 'serious harm', the jury is entrusted with the decision whether the harm intended was indeed serious.[33] By way of contrast with the position in some other jurisdictions,[34] 'serious' injury or harm has no legal definition. So, in law, D cannot avoid conviction for murder by showing that he had no idea that the harm intentionally inflicted would lead to death or that it would be regarded by a jury as serious in itself. At best, such a claim is simply a piece of evidence that the harm was not serious.
2.87 We will now consider two different answers to this question.
APPROACH 1: DEFINING 'SERIOUS' INJURY
[H]arm 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.[35]
2.92 All in all, opponents of this approach thought that it would add to the length, complexity and cost of trials without (in their view) adequate justification. We agree. Given that there is an alternative approach, we do not regard this approach as having sufficient merit to warrant taking it forward, even though we recognise that something like it has been made to work satisfactorily in some other jurisdictions.[36]
APPROACH 2: NOT DEFINING 'SERIOUS' INJURY
2.94 We are recommending that second degree murder should attract a discretionary maximum life sentence. This means that, where appropriate, judges can take account of the kind and degree of injury actually intended in determining the sentence that they pass.[37] That is not possible, at present, because the life sentence is mandatory when the jury has brought in a verdict of murder on the basis that there was an intention to do harm they (the jury) regard as serious.[38] The discretion the judge would have, in sentencing in cases of second degree murder, means that it is not necessary to complicate the law further by seeking to fix a definition of 'serious' injury.
Why killing through an intention to cause injury or fear or risk of injury while aware of a serious risk of causing death should be second degree murder
Introduction
2.96 Under the present law, killing through reckless conduct, however culpable, can be treated as nothing more serious than manslaughter. In Part 1,[39] we said that we believe that this constitutes a significant anomaly or weakness within the law. Some reckless killers ought to convicted of second degree murder and not simply of manslaughter.
2.97 Under our recommendations, if someone foresaw death as virtually certain to occur if he or she acted as intended, and death did thereby occur, he or she could be convicted of first degree murder.[40] Under the current law, if someone sees the causing of death as a serious risk from their conduct (even if it is not considered to be virtually certain to result), they can only be convicted of manslaughter. However, in certain circumstances it ought to be possible to convict them of the middle tier offence, second degree murder and not merely of manslaughter.
2.98 The example of the bomber who gives an inadequate warning is a case that ought to fall within the ambit of the middle tier offence.[41] Some other examples (based on real cases) which at present commonly fall within manslaughter but ought to be candidates for treatment as second degree murder are:
(1) D sets fire to V's house at night, knowing that V is asleep inside. His intention is to give the occupants a severe fright. V is killed trying to escape.
(2) D burgles the house of an elderly man, tying him up securely and leaving him, although she appreciates that the house is isolated and that the man has few visitors. V, unable to escape his bonds or summon help, dies.
(3) D injects V with an illegal drug that D realises may contain impurities dangerous to life. V goes into a coma, and consequently dies.
(4) D intentionally accelerates his car towards a police officer standing in the road at a roadblock. His intention is to frighten the officer by swerving the car out of the way only at the last possible second D's attempt to swerve out of the way is unsuccessful and the officer is killed.
The provisional proposal in the CP
2.99 To this end, in the CP we sought to distinguish between simple recklessness – being aware that there is an unjustified risk of killing but going ahead anyway – and 'reckless indifference'. Killing through simple recklessness was to be manslaughter. That would remain the case under our recommendations.[42] By contrast, we proposed that reckless indifference was to be second degree murder because it involved, over and above an appreciation that there was a risk of causing death, an attitude towards that risk along the lines of, 'if death occurs so be it', or 'if death occurs, so what'? The jury would, in effect, be asked whether they were satisfied that D would still have gone ahead even if he or she had thought death to be virtually certain to occur.
Responses to the provisional proposal
2.103 Professor Wilson, an acknowledged authority on this area of the law, said that:
[T]he view taken by successive reform bodies is that 'wicked recklessness' is too imprecise a concept to sustain a differentiated law of homicide. I do not think that the concept of 'reckless indifference', without more, is any better placed … Whether someone has committed murder is not a matter of simple moral judgment. It is a matter of satisfying an offence definition with a sufficiently high degree of specificity to justify the hugely symbolic label and the penalty range.[43]
2.104 In a similar vein, the Editor of the Criminal Law Review suggested that:
[T]he case for including 'reckless indifference' looks under-argued. The Paper distinguishes reckless indifference from 'reckless stupidity' by reference to the defendant's attitude to foreseen consequences of the act that caused death, but whether this philosophical distinction can generate a workable test for a lay jury is problematic.[44]
A new formulation
2.107 As we have said,[45] we recommend replacement of the reckless indifference formula with a formula in which what matters is whether D intended to cause injury or fear or risk of injury and was aware that his or her conduct involved a serious risk of causing death.[46]
ADVANTAGES OF THE NEW FORMULA
2.109 As important as what the recommended formula includes is what it excludes. It will not be sufficient for conviction of second degree murder simply that the killer was aware that his or her conduct involved a serious risk of causing death (recklessness as to causing death). If the killer was aware that his or her conduct involved a risk of death, he or she stands to be convicted only of manslaughter.[47] To be convicted of second degree murder, in addition to showing that the offender had this awareness, it must also be shown that the killer intended to cause injury or fear or risk of injury.[48]
2.111 The extra element ensures that those who kill through simple carelessness or disregard, but without anything that could (speaking very loosely) be called a hostile or aggressive act directed at someone, should be guilty only of manslaughter.[49] The degree of their carelessness or disregard can be reflected in the sentence received upon conviction for manslaughter. In the electrician example just given, the electrician does not intend to cause injury or fear or risk of injury. So, in spite of his or her awareness of the possibly fatal consequences of corner-cutting, he or she should not be convicted of second degree murder if death results.
RESURRECTING THE 'FELONY-MURDER' APPROACH?
2.113 Most consultees rejected it on the basis that the reasons why Parliament abolished the felony-murder rule 1957 remain as compelling now as they were then. The list of offences that would count (that is, the offences in the course of committing which it would be murder to kill by reckless indifference) would inevitably be arbitrary in scope. In some cases, it would be difficult to distinguish the offence in the course of which the killing occurred and the conduct manifesting the reckless indifference.[50] Difficult questions would arise, as they did at common law prior to 1957, over whether the killing was committed 'in the course of' or 'arose from' the commission of another offence.
Conclusion
2.115 We believe that, although the recommended formula seems narrower than reckless indifference, when it is fully explained to a jury it will in practice be found to cover the examples we sought to capture with the phrase 'reckless indifference'.[51] In that regard, it must be kept in mind that when deciding whether an accused person intended to cause injury or a fear or risk of injury, intention would be given the meaning we assign to it in Part 3. D can be found to have intended to cause injury or a fear or risk of injury if he or she foresaw one or other of those results as virtually certain to occur.
THE THREE-TIER STRUCTURE AND 'SPLIT' JURIES'
2.118 In that regard, our recommended division between first and second degree murder raises an important point of procedure. If members of a jury are irreconcilably split over the question whether D had the fault element for first degree murder or only the fault element for second degree murder, what should happen next? We believe that this situation is already adequately catered for.[52]
2.119 Under the existing law, a jury should ordinarily only consider the offence of manslaughter when they have positively decided that the accused is not guilty of murder.[53] However, when a jury cannot agree on a verdict of murder, it can be discharged from the obligation to give a verdict on murder if the justice of the case so requires. The jury can, if need be, be asked to consider a count of manslaughter newly added to the indictment without the need once more to arraign D on a charge of manslaughter.
2.121 It is important to emphasise, however, that the adding of new counts in such cases should not become a routine procedure. Adopting that procedure precludes a re-trial and so it is not always in the interests of justice.[54] The important point for present purposes is that we do not believe that the introduction of a middle tier to the general law of homicide will lead to a large number of cases in which there must be a re-trial because the jury cannot agree that D had a specific fault element at the time of the offence.
PARTIAL DEFENCES
Introduction
2.123 There are four issues:
(1) Should the law of homicide retain partial defences?
(2) If the answer to (1) is "yes", should each partial defence have the same effect?
(3) Should the operation of the partial defences be confined to first degree murder?
(4) If the answer to (3) is "yes", should a partial defence reduce first degree murder to second degree murder or to manslaughter?
The provisional proposals in the CP
2.124 Our proposals were:
(1) as long as there is a mandatory sentence of life imprisonment, there is a need to retain the partial defences;
(2) each partial defence, if successfully pleaded, should have the same effect;
(3) the operation of the partial defences should be confined to first degree murder. They should not operate as partial defences to second degree murder; and
(4) a partial defence, if successfully pleaded, should reduce first degree murder to second degree murder.
Responses to our proposals
Should the law of homicide retain partial defences?
2.131 As we indicated in the CP,[55] if a life sentence has to be passed on an offender with no previous criminal record who was driven to kill on the spur of the moment by very grave provocation, the sentence that must be passed will have a 'topsy-turvy' character. The offender will, on current guidelines, be required to spend perhaps only two to four years in prison for the offence because of the gravity of the provocation and the fact that he or she acted spontaneously. Yet, when released from prison, he or she will then remain on licence, liable to be recalled to prison for, perhaps, another 40 years or more. This is a feature of 'life' sentences that the public finds hard to understand.[56]
Should each partial defence have the same effect?
The problem of 'split' juries
2.132 We have already referred to the problems that result from a jury being unable to agree on a verdict.[57] This problem has shaped our thinking in relation to the recommendations that we should make in relation to the partial defences.
2.136 In that regard, we note that research, kindly made available to us by Professor Barry Mitchell and Dr Sally Cunningham,[58] indicates that three in every four provocation pleas were combined with another defence. By way of contrast, a 'lack of intent' plea on a murder charge was twice as likely to be pleaded on its own rather than with another defence.
2.137 D may plead both lack of intent to commit murder and provocation, or provocation and diminished responsibility, or provocation and self-defence.[59] At least some of the same evidence will commonly be deployed in relation to each plea. Here is an example. D may say that a sudden loss of self-control meant that there was not only no relevant intent (the 'evidential' provocation plea), but also that there was a case for reducing the offence to manslaughter by virtue of section 3 of the Homicide Act 1957 (the 'substantive' provocation plea).
2.138 There is nothing wrong with a system in which pleas overlap or involve reliance on the same evidential basis. Under the current law, however, it is not easy to raise a doubt that, in a case where (say) V was stabbed in the chest, following a loss of self-control on the part of D, there was at least an intention to do serious harm. So, in practice, a 'substantive' provocation plea under section 3 will be the more plausible plea in such a case. That may not remain true under our recommendations. If the fault element for murder is changed in the way that we recommend, the 'evidential' provocation plea may become as plausible as the 'substantive' provocation plea.[60] In a case where there was a loss of self-control, great rage or fear, D is quite likely to couple a substantive plea of provocation with a claim that he or she did not intend to kill, or, despite admitting intentionally inflicting serious injury, did not advert to the serious risk of causing death.
2.140 The same is true of cases in which provocation and diminished responsibility are pleaded together. Success in pleading either of these pleas must entail the same verdict (on our recommendations, second degree murder). D may attribute a loss of self-control and angry retaliation to provocation and to the effects of a serious mental disorder (diminished responsibility). Suppose that a jury, having heard the evidence on each of these (overlapping) pleas, agrees that D is not guilty of first degree murder. They should not then be required to agree that either the provocation defence succeeds or that the diminished responsibility defence succeeds, because each defence when successfully pleaded leads to a different verdict (say, second degree murder in the case of provocation, and manslaughter in the case of diminished responsibility). As we have already indicated, this would be unacceptable, because it is likely that very many juries would be divided on the question of which defence succeeds, perhaps necessitating a retrial even though the jury is agreed that D is not guilty of first degree murder.[61] The jurors should be allowed to come to the same verdict without having to agree on which ground.
2.141 Dr Rogers has argued that a problem with the 'multiple pleas, single verdict' approach is that it would leave the evidential basis for sentencing unclear.[62] The jury might be very divided over the evidential plausibility of one or other of D's pleas, even if this is concealed behind the agreed verdict of second degree murder.
2.142 This problem has always existed in the law, and judges have dealt with it using common sense, experience and judgement. Take a case where it is unclear whether lack of intent, diminished responsibility or provocation is the basis for a manslaughter verdict. A judge will (a) try to form a defensible view on that question for him or herself, but also (b) frequently conclude that the sentence D is to receive should not differ materially whatever the basis was for the verdict. The judge is also entitled to indicate to members of the jury, before they retire to consider their verdict, that he or she will be asking them to indicate, if they can, what the basis for their verdict was.[63]
2.143 In cases where diminished responsibility and provocation are pleaded together, it has been considered especially important (but still not absolutely essential) that the judge should ask the jury for the basis of their verdict.[64] This is understandable. Diminished responsibility, unlike provocation, requires D to satisfy a burden of proof, and the sentencing options are wider. Even so, a judge is in as good a position as anyone to decide whether the evidence favours a hospital order or another treatment-based sentencing option, when diminished responsibility has been pleaded and a manslaughter verdict brought in. There may be cases where the judge would be assisted by an indication from the jury as to the thinking that lay behind their verdict, but that will not be true in all cases.
2.145 In France, issues such as these are tackled in a different way. When the most serious crimes are being tried, although there is a presiding judge, three professional judges take their place alongside nine lay people as members of the jury and the jury members vote together on both verdict and sentence.[65] So, there is no need to have precisely the same kind of rules of law and practice governing the relationship between judge and jury as one finds in England and Wales.[66] We can see both advantages and disadvantages to this approach. However, to take it further would raise large questions about the composition of juries, and their role in sentencing, taking us well outside our terms of reference.
Should the operation of partial defences be confined to first degree murder?
2.147 The primary importance of partial defences should be seen as lying in the impact they have on sentence rather than on verdict. This is what could be called the 'sentence mitigation' principle. Matters of verdict and of sentence are effectively fused in murder cases. Partial defences affect the verdict of murder, and only that verdict, because a verdict of murder is the only one that carries in its wake a mandatory sentence of such gravity (life imprisonment). Therefore, in our view, the argument for partial defences that is based on fair labelling - avoiding the label 'murderer' - is of secondary importance compared to the sentence mitigation principle.[67]
2.148 The secondary importance of labelling considerations explains, in part, why partial defences do not reduce other crimes that carry discretionary maximum sentences, such as attempted murder, to lesser included offences, such as, in appropriate cases, wounding with intent to do grievous bodily harm.[68] We found it significant that those consultees who thought labelling considerations ought to have played more of a role in structuring our proposals for partial defences to homicide, did not extend the logic of their arguments to those homicide-related crimes that have lesser included offences.
2.153 The Royal College of Psychiatrists has argued that psychiatric evidence of diminished responsibility is inevitably distorted when it must be made relevant to verdict rather than to sentence.[69] Victim Support have argued[70] that in cases where provocation is pleaded, the fuller picture of the relationship between offender and the deceased is much easier to portray at the sentencing stage than in the adversarial context of the trial.
Should a successful partial defence plea to first degree murder result in a verdict of second degree murder or manslaughter?
Conclusion
MANSLAUGHTER
Introduction
2.160 At common law, there are three types of involuntary manslaughter:
(1) reckless manslaughter;
(2) gross negligence manslaughter; and
(3) 'unlawful and dangerous act' manslaughter.
2.161 Our terms of reference did not include consideration of the substantive law of manslaughter. The substantive law has been considered by the Law Commission and by the Home Office in previous reports.[71] We did not think it appropriate to re-visit that ground in a detailed way, except in so far as it had an impact on the structure of the law of homicide in general.[72] In that regard, of course, we are recommending that some cases of so-called 'reckless manslaughter' should be moved up from the bottom to the middle tier of the three tiers within the law of homicide, when they involve an intention to cause injury or a fear or risk of injury coupled with an awareness of a serious risk of causing death.
The scope of manslaughter within the three-tier structure
2.163 We recommend that manslaughter should encompass:
(1) killing another person through gross negligence ("gross negligence manslaughter");[73] or
(2) killing another person:
(a) through the commission of a criminal act intended by the defendant to cause injury, or
(b) through the commission of a criminal act that the defendant was aware involved a serious risk of causing some injury ("criminal act manslaughter").
2.164 Our recommendation with regard to gross negligence manslaughter reflects the current legal position. Our recommendation with regard to criminal act manslaughter is almost identical to the proposal put forward by the Government for replacing 'unlawful and dangerous act' manslaughter.[74] In Part 3, we consider and explain the fault elements of both gross negligence manslaughter and criminal act manslaughter.
2.165 As we have already indicated, not all reckless killings will fall into the category of second degree murder.[75] Will they be covered by the concept of gross negligence, within manslaughter? We believe that they will. If someone realises that there is a risk of causing death, but unjustifiably carries on with his or her conduct, that can be regarded as a kind of 'gross' negligence. It can be regarded as a failure to take account of the interests of potential victims so highly culpable that it should amount to a homicide offence against the person killed. There is, in consequence, no need for the addition of 'reckless killing' to killing by gross negligence in the lower tier of homicide, manslaughter.
SHOULD KILLING A POLICE OFFICER ON DUTY BE FIRST DEGREE MURDER EVEN IF THE KILLER DID NOT HAVE THE FAULT ELEMENT FOR FIRST DEGREE MURDER?
2.167 We fully acknowledge and appreciate the difficult and dangerous circumstances in which police officers (and prison officers, amongst others) have to operate. It is almost always right to impose very long – retributive and deterrent – sentences of imprisonment on those who kill those they know to be police officers, whether they are convicted of first or of second degree murder.[76] Our concern is with the real potential for arbitrariness and legalism in the interpretation of when a police officer is 'on duty' if a special exception for them is created.
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Note 1 Paras 1.17 to 1.31 above. See also paras 2.5 to 2.6 above. [Back] Note 2 See para 1.27 above. [Back] Note 3 Under our recommended structure, only first degree murder would attract the mandatory life sentence. [Back] Note 4 The offences in question are attempted murder (at the top), then the offences under the Offences against the Person Act 1861, s 18, s 20, and s 47, with common assault (Criminal Justice Act 1988, s 39) as the lowest tier. See further C. Clarkson, A. Cretney, G. Davies, and J. Shephard, “Assaults: the relationship between Seriousness, Criminalisation and Punishment” [1994] Criminal Law Review 4. [Back] Note 5 See HHJ Nic Madge, “Summing-Up: A Judge’s Perspective” [2006] Criminal Law Review 817. [Back] Note 6 Martin Wasik, “Sentencing in Homicide”, in Andrew Ashworth and Barry Mitchell (eds) Rethinking English Homicide Law (2000) p 192. [Back] Note 7 Home Office, Violence: Reforming the Offences Against the Person Act 1861 (1998). [Back] Note 8 These offences, which include causing death by dangerous driving or causing the non-accidental death of a child or vulnerable adult, can be thought of as constituting a fourth tier to the law of homicide. [Back] Note 9 Criminal Justice Act 2003, s 269 and sch 21. [Back] Note 10 A term in use in Scottish law. [Back] Note 11 It is also worth noting that in Germany (through use of the term mord) and in France (through the use of the term meurtre) very similar terms to “murder” are in use to identify the most serious forms of homicide. [Back] Note 12 Such a judgement of offence seriousness can, of course, be reflected in the sentence handed down for manslaughter - eg Wacker [2003] 1 Cr App Rep (S) 92. For further discussion see the valuable article by Victor Tadros, “The Homicide Ladder” (2006) 69 Modern Law Review 601, 610 to 613. [Back] Note 13 We do not say that this is the only test of the defensibility of a ladder of offence seriousness. It may be that a ladder must be so structured that certain ‘key’ cases fall within one tier rather than another whatever the position ‘by and large’ in terms of seriousness. [Back] Note 14 The offences are to be found in, respectively, the Offences Against the Person Act 1861, ss 18 and 20. For the courts’ interpretation of those sections, that makes it right to think of them in terms of a ladder of ascending seriousness, see Mowatt [1968] 1 QB 421; Belfon [1976] 3 All ER 46. [Back] Note 15 Contrary to Offences Against the Person Act 1861, s 18. [Back] Note 16 Contrary to Offences Against the Person Act 1861, s 20. [Back] Note 17 In saying this we are not, of course, endorsing these offences as currently defined. We have previously proposed root-and-branch reform of these offences whilst retaining and indeed reinforcing the ‘ladder’ principle: Offences Against the Person and General Principles (1993) Law Com No 218. [Back] Note 18 Paras 1.17 to 1.18 above [Back] Note 19 Clause 58 reads, “A person is guilty of murder if he causes the death of another – (a) intending to cause death; or (b) intending to cause serious person harm and being aware that he may cause death.” [Back] Note 20 “The Structure of Criminal Homicide” [2006] Criminal Law Review 471, 474. See further, A P Simester, ‘”Why Distinguish Intention from Foresight?” in A P Simester and A T H Smith (eds), Harm and Culpability (1996) p 71. [Back] Note 21 There was also criticism of our attempts to justify confining first degree murder to intentional killing through the claim that this was the highest offence against the ‘sanctity of life’. As Sir Louis Blom-Cooper QC and Professor Morris pointed out, what is at issue in all homicide offences is a violation of the right to life, and references to ‘sanctity of life’ considerations can be misleading. See further, Alan Norrie, “Between Orthodox Subjectivism and Moral Contextualism: Intention and the Consultation Paper” [2006] Criminal Law Review 486, 488 to 491. [Back] Note 22 Sir James Stephen, History of the Criminal Law of England (1883), vol III, at 92. Stephen goes on to list examples of an intention to do serious injury coupled with ‘reckless indifference’ as to causing death that he believes might be viewed as worse than intentional killing, such as killing in the course of prolonged torture. [Back] Note 23 G [2003] UKHL 50, [2004] 1 AC 1034 at [39]. [Back] Note 25 See the discussion in Part 1, paras 1.19 and 1.25 to 1.30 and in the CP at paras 1.119 to 1.123. [Back] Note 26 See Criminal Justice Act 2003, s 269 and sch 21. [Back] Note 27 Under our recommendations, that crucial question of fact would be turned over to the jury, The jury would make that decision in determining whether D is guilty of first or of second degree murder. [Back] Note 28 See the CP, para 3.15. [Back] Note 29 As we will see from para 2.95 onwards, in murder cases where there was only an intention to cause some injury or a fear or risk of injury, foresight of a serious risk of death is a necessary part of the fault element if the correspondence principle is adequately to be satisfied. [Back] Note 30 Chan-Fook [1994] 1 WLR 689; Ireland [1998] AC 147. [Back] Note 31 Chan-Fook [1994] 1 WLR 689, 690, by Hobhouse LJ. [Back] Note 32 Dhaliwal [2006] EWCA Crim 1139, [2006] 2 Cr App R 236. [Back] Note 33 DPP v Smith [1961] AC 290. [Back] Note 34 See the CP, Part 3. [Back] Note 35 The definition was an amalgamation of attempts in other jurisdictions to define serious harm: see the CP, Part 3 paras 3.115 to 3.120. [Back] Note 36 As, eg, under the Indian Penal Code, and the Singapore Penal Code, Cap 224, 1985 Rev Ed, ( 300(c). [Back] Note 37 Bearing in mind that the injury inflicted will, ex hypothesi, already have been judged serious by the jury. [Back] Note 38 Although, under the present law, it is possible for the judge to decide that a convicted murderer’s initial period of custody should be shorter because he or she did not intend to kill or to inflict the very worst kinds of serious injury: see para 2.67 above. [Back] Note 39 Paras 1.24 to 1.31 above. [Back] Note 40 See Part 3. This is also murder under the present law. [Back] Note 41 See Part 1, para 1.27 above. [Back] Note 42 We see no reason to distinguish between simple recklessness and gross negligence. One of the things that can make negligence gross is the fact that D went ahead to pose the risk in question in spite of the fact that he or she knew it existed: see Part 3. [Back] Note 43 William Wilson, “The Structure of Criminal Homicide” [2006] Criminal Law Review 471, 477 to 479. For another penetrating critique, see Jonathan Rogers, “The Law Commission’s Proposed Restructuring of the Law of Homicide” [2006] Journal of Criminal Law 223. [Back] Note 44 Professor Ian Dennis, “Reviewing the Law of Homicide” (Editorial) [2006] Criminal Law Review 187 to 188. See also Victor Tadros, “The Homicide Ladder” (2006) 69 Modern Law Review 601, 610 to 613. [Back] Note 45 Para 2.70(2) above. [Back] Note 46 The element of ‘serious risk’ in this formula is considered in more detail in Part 3. [Back] Note 47 Unless the killer thought that someone’s death was almost certain to result from his or her conduct: see part 3. Then the killer stands to be convicted of first degree murder. [Back] Note 48 An intention to cause injury or fear or risk of injury is different from intentionally doing an act that in fact creates an unintended risk of injury. [Back] Note 49 In analysing our recommendations in this way, we are drawing in part on the theoretical structure advocated by Professor William Wilson, ”The Structure of Criminal Homicide” [2006] Criminal Law Review 471. [Back] Note 50 This is the problem of so-called ‘felony-merger’: see C Finkelstein, “Merger and Felony-Murder”, in S Green and R A Duff (eds.), Defining Crimes (2005) p 218; Kimberly K Ferzan, “Murder after the Merger: A Commentary on Finkelstein” (2006) 9 Buffalo Criminal Law Review 561. [Back] Note 51 See para 2.98 above. [Back] Note 52 Saunders [1988] AC 148. [Back] Note 53 See Criminal Law Act 1967, s 6(2). [Back] Note 54 See Archbold, Criminal Pleading, Evidence and Practice (2006 ed) para 4-460. [Back] Note 55 Paras 2.95 to 2.96. [Back] Note 56 See the CP, Appendix E. [Back] Note 57 See paras 2.117 to 2.121 above. [Back] Note 58 See Appendix C: Defences to Murder. [Back] Note 59 R.D. Mackay, “Pleading Provocation and Diminished Responsibility Together” [1988] Criminal Law Review 411. See also Appendix C for an analysis of the range of defences commonly employed in murder trials. [Back] Note 60 It will also become more difficult to plead provocation successfully under our proposals for that defence: see Part 5. [Back] Note 61 See para 2.117 above. [Back] Note 62 Jonathan Rogers, “The Law Commission’s Proposed Restructuring of the Law of Homicide” [2006] Journal of Criminal Law 223. [Back] Note 63 Eg, see Cawthorne [1996] 2 Cr App Rep (S) 445. [Back] Note 64 See Matheson [1958] 1 WLR 474; Cawthorne [1996] 2 Cr App Rep (S) 445 [Back] Note 65 Catherine Elliott, French Criminal Law (1991) p 49. [Back] Note 66 The French Penal Code, Articles 348 to 364 sets out in detail how the jury’s decisions are to be made. They are based on a sheet of questions prepared by the President of the court. This is, then, analogous to the common practice followed by judges in England and Wales of providing the jury with such a sheet (see para 2.27 above). Rather different from English law is the requirement for the French jury vote on the answer to each question by secret ballot. We are very grateful to Professor John Spencer QC, of Cambridge University, for the guidance he has provided us on the law of homicide in France. [Back] Note 67 Although the importance of labelling considerations does in part support our recommendation that the effect of partial defences should be to reduce first degree murder to second degree murder. [Back] Note 68 Contrary to the Offences Against the Person Act 1861, s 18. [Back] Note 69 See the CP, para 6.26 and Part 5 below. [Back] Note 70 See the CP, para 2.68 which refers to the formal response of Victim Support to our consultation paper Partial Defences to Murder (2003) Law Commission Consultation Paper No 173. [Back] Note 71 Involuntary Manslaughter (1996) Law Com No 237; Home Office, Reforming the Law on Involuntary Manslaughter: The Government’s Proposals (2000). [Back] Note 72 However, in the CP, para 3.2(4), departing from the recommendation that we made in our earlier report Involuntary Manslaughter (1996) Law Com No 237, we did provisionally propose that the gross negligence form of manslaughter should only be committed where there was gross negligence as to a risk of causing death as opposed to causing serious harm. That change reflects the current legal position – Adomako [1995] AC 171. [Back] Note 73 In Part 3, paras 3.58 to 3.60, we set out the fault element for gross negligence manslaughter. [Back] Note 74 Home Office, Reforming the Law on Involuntary Manslaughter: The Government’s Proposals (2000) para 2.11. [Back] Note 75 See the discussion in paras 2.108 to 2.111 above. [Back]
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