The Law Commission

Structure within the law of homicide

(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. (Paragraph 2.69)

(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. (Paragraph 2.70)

(1) killing another person through gross negligence ("gross negligence manslaughter"); 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"). (Paragraph 2.163)

The fault element

(1) A person should be taken to intend a result if he or she acts in order to bring it about.

(2) In cases where the judge believes that justice may not be done unless an expanded understanding of intention is given, the jury should be directed as follows: an intention to bring about a result may be found if it is shown that the defendant thought that the result was a virtually certain consequence of his or her action. (Paragraph 3.27)

(1) a person by his or her conduct causes the death of another;

(2) a risk that his or her conduct will cause death would be obvious to a reasonable person in his or her position;

(3) he or she is capable of appreciating that risk at the material time; and

(4) his or her conduct falls far below what can reasonably be expected of him or her in the circumstances. (Paragraph 3. 60)

Complicity in murder

(1) D intended to assist or encourage P to commit the relevant offence; or

(2) D was engaged in a joint criminal venture with P, and realised that P, or another party to the joint venture, might commit the relevant offence. (Paragraph 4.4)

(1) D and P were parties to a joint venture to commit an offence;

(2) P committed the offence of first degree murder or second degree murder in relation to the fulfilment of that venture;

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

(4) a reasonable person in D's position, with D's knowledge of the relevant facts, would have foreseen an obvious risk of death or serious injury being caused by a party to the venture. (Paragraph 4.6)

Provocation

(1) Unlawful homicide that would otherwise be first degree murder should instead be second degree murder if:

(a) the defendant acted in response to:

(i) gross provocation (meaning words or conduct or a combination of words and conduct) which caused the defendant to have a justifiable sense of being seriously wronged; or

(ii) fear of serious violence towards the defendant or another; or

(iii) a combination of both (i) and (ii); and

(b) a person of the defendant's age and of ordinary temperament, i.e., ordinary tolerance and self-restraint, in the circumstances of the defendant might have reacted in the same or in a similar way.

(2) In deciding whether a person of the defendant's age and of ordinary temperament, i.e., ordinary tolerance and self-restraint, in the circumstances of the defendant, might have reacted in the same or in a similar way, the court should take into account the defendant's age and all the circumstances of the defendant other than matters whose only relevance to the defendant's conduct is that they bear simply on his or her general capacity for self-control.

(3) The partial defence should not apply where:

(a) the provocation was incited by the defendant for the purpose of providing an excuse to use violence; or

(b) the defendant acted in considered desire for revenge.

(4) A person should not be treated as having acted in considered desire for revenge if he or she acted in fear of serious violence, merely because he or she was also angry towards the deceased for the conduct which engendered that fear.

(5) A judge should not be required to leave the defence to the jury unless there is evidence on which a reasonable jury, properly directed, could conclude that it might apply. (Paragraph 5.11)

Diminished responsibility

(a) a person who would otherwise be guilty of first degree murder is guilty of second degree murder if, at the time he or she played his or her part in the killing, his or her capacity to:

(i) understand the nature of his or her conduct; or

(ii) form a rational judgement; or

(iii) control him or herself,

was substantially impaired by an abnormality of mental functioning arising from a recognised medical condition, developmental immaturity in a defendant under the age of eighteen, or a combination of both; and

(b) the abnormality, the developmental immaturity, or the combination of both provides an explanation for the defendant's conduct in carrying out or taking part in the killing. (Paragraph 5.112)

Duress

'Mercy' and consensual killings

Infanticide

(Signed) TERENCE ETHERTON, Chairman

HUGH BEALE

STUART BRIDGE

JEREMY HORDER

KENNETH PARKER

STEVE HUMPHREYS, Chief Executive

1 November 2006