The Law Commission

APPENDIX A

SENTENCING IN HOMICIDE CASES

A.1 Under the terms of reference for the review, the Commission was asked to "take account of the continuing existence of the mandatory life sentence for murder". The Commission was also asked to ensure that its recommendations would "enable those convicted to be appropriately punished". The latter request is especially significant in relation to our recommended new offence of second degree murder.

A.2 The Commission is not making formal recommendations on sentence for second degree murder (other than to say that the maximum sentence should be life imprisonment). This is because there was no opportunity to set out in the CP the sentencing possibilities for that crime and to ask for consultees' views on them. However, a number of consultees – such as the police and groups representing victims' families – have spoken to us about sentencing in homicide cases.

MANSLAUGHTER

A.3 We recommend that:

manslaughter should continue to carry a discretionary life sentence.

A.4 In the CP, we provisionally proposed that, to reflect the 'ladder principle', under which manslaughter would become the least serious of the three homicide offences, manslaughter should have a fixed term of years as the maximum sentence. The reason for this is that cases of manslaughter currently most likely to attract a life sentence would fall within second degree murder, under our recommendations. However, most judges have indicated to us that they would be uncomfortable with anything less than a discretionary life sentence being available for manslaughter. The importance of reflecting their knowledge and experience has led us to depart from our provisional proposal.

SECOND DEGREE MURDER

A.5 We recommend that:

second degree murder should attract a discretionary life sentence maximum. There should be sentencing guidelines set down in order to ensure that sentences reflect the serious nature of the crime.

A.6 There has been broad agreement that there should be a life sentence maximum for second degree murder. There has also been a strong feeling in some quarters that the crime(s) of murder should not become undervalued by the introduction of a three tier structure. We understand those concerns. We will try to meet them in the following ways:

Longer sentences in second degree murder cases

A.7 Under the current law if someone is acquitted of murder and convicted only of manslaughter, the judge is obliged to pass a commensurately lower custodial sentence, to respect the jury's verdict. If second degree murder became the

middle tier of a three tier structure of homicide law, judges would not be obliged to pass custodial sentences as low as they are currently obliged to do in order to reflect the jury's verdict that the killing is not first degree murder.

A.8 The following two cases are illustrations of instances in which, were it possible to convict the killers of second degree murder, rather than of manslaughter, we would expect the custodial sentence passed to be substantially higher than the sentence actually passed for manslaughter:

Case 1:^[1] the defendant and the victim, both alcoholics, frequently argued when drunk although they lived together as companions. The defendant was a tall, well-built man aged 44, unlike the slightly built 67-year-old victim. Having become drunk, the defendant hit the victim twice with a heavy lump of wood that had a large protruding nail. The first blow fractured the victim's skull, and the second pierced an artery in his arm. No medical attention was sought and the victim bled to death. The defendant pleaded guilty to manslaughter on the basis of lack of intent. The Court of Appeal said that the proper sentence was in the range 4 to 5 years (meaning a minimum term in custody of 2 to 2½ years).

Case 2:^[2] three defendants, aged 28, 21 and 19, had been drinking heavily and taking drugs, when they attacked a 40-year-old man in a car park. He was punched to the ground and kicked by all three defendants in a deliberate and violent but unprovoked beating. The man died due to extensive brain haemorrhage. The defendants pleaded guilty to manslaughter, and on appeal received sentences of 5½ years (meaning a minimum term in custody of 2 years and 9 months).

A.9 Under our recommendations, a charge of first degree murder would be a very real possibility in these cases because it seems highly arguable that the defendants intended to cause serious injury in the awareness that there was a serious risk of causing death (see Part 2). The prosecution could also justifiably indicate that they would only accept a plea of guilty to second degree murder and not a plea of guilty to manslaughter. The Crown Prosecution Service, in their response to our CP, has endorsed this aspect of our proposals. We believe that a plea of guilty to second degree murder could, and should, lead to a longer custodial sentence being regarded as appropriate, in cases on similar facts, than may be possible or appropriate following conviction for manslaughter under the present law.

A.10 If a practice of accepting pleas of guilty to second degree murder and refusing to accept pleas of guilty to manslaughter became more common, then it is possible that the overall length of terms of imprisonment actually served by those convicted of homicide would rise. Whether or not that is an acceptable consequence is a matter for the next stage of the review.

The statutory minimum terms approach

A.11 We believe that the recommended starting points for minimum terms for the initial period of custody in murder cases, currently specified in the Criminal Justice Act 2003 for "public policy" cases (cases with aggravating factors), should automatically apply to second degree murder as well as to first degree murder.

A.12 The current starting point for sentencing an adult committing murder with, say, a firearm, is a life sentence with a minimum of thirty years initially in custody. This would remain the case for first degree murder. What if second degree murder is committed with a firearm? It must be kept in mind that, in broad terms, in any second degree murder case where the judge decides that the offender poses a significant risk of causing serious harm to members of the public, the offender must receive a life sentence in any event.^[3] A substantial proportion of second degree murder cases are likely to be of this kind. So, in the hypothetical case of second degree murder by firearm, guidelines could be introduced to indicate that the judge should still start by thinking in terms of a minimum of thirty years that would have to be served in custody.

A.13 The message that Parliament might wish to send would be undermined if the provisions for "public policy" cases were confined to cases of first degree murder. That someone who killed did not intend to kill but intended only serious injury, and was therefore guilty of second degree murder, need not necessarily be regarded as a mitigating factor when the killing in question was a gun slaying or was of a police officer on duty. In such cases, the guidelines for sentencing in cases of second degree murder should be comparable to those applying to first degree murder cases.

A.14 Life sentences would almost certainly continue to be a measure of first resort in many second degree murder cases with aggravating features, such as the use of a firearm. The restrictions that we are recommending for the scope of some of the partial defences will also result in fewer opportunities to escape the mandatory life sentence. Further, as we have already indicated (see A.12 above), the law would continue to require judges to pass a life sentence in any second degree murder case where the offender poses a significant risk of causing serious harm.

FIRST DEGREE MURDER

A.15 Under our terms of reference, we have assumed that the mandatory life sentence for murder will continue but that in future it will apply to cases of first degree murder.^[4]

Note 1    A-G’s Reference No 118 of 2001 [2002] EWCA Crim 958; [2002] 2 Cr App R (S) 119.    [Back]

Note 2    Andrew James Redfern and others [2001] 2 Cr App R (S) 33.    [Back]

Note 3    Criminal Justice Act 2003, s 225(1).    [Back]

Note 4    Section 269 and sch 21 of the Criminal Justice Act 2003 will continue to provide starting points for judges in deciding on the initial custodial element to the life sentence in different types of “first degree murder” case.     [Back]