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Why we need reform to laws on homicide
Lord Phillips argues that the law on homicide needs revising to ensure the most culpable cases are classed as murder
THE law governing homicide in England and Wales is a rickety structure set upon shaky foundations.”
So said the Law Commission in the report that they issued in November last year proposing reform to the law of murder, manslaughter and infanticide.
Ten years ago, Lord Mustill, in the course of a judgment, commented “the law of homicide is permeated by anomaly, fiction, misnomer and obsolete reasoning”
It is high time that it was reformed. Previous attempts at reformation have failed. Will the Law Commission’s current attempt be any more successful?
I hope that it will, but I am not over-optimistic. The law of murder is a political hot potato and legislative slots tend to go to legislation that appears to have more immediate practical implications.
The merits of the reforms proposed are that they will rationalise this highly unsatisfactory area of our law, but it would not be right to think that they would have no practical benefits.
For a start they would reduce the frequency with which the House of Lords is troubled with appeals. They might also increase the proportion of cases disposed of by pleas of guilty rather than lengthy and expensive trials.
Why is it that this area of our law has given rise to so many problems? First of all because it is one of the few areas of our common law that has not been codified. Murder remains a common law offence, although Parliament has been nibbling at the edges.
And because murder is such a serious offence it has been the subject of frequent sorties to the House of Lords, where their Lordships have not hesitated to attempt to improve the law – and more often than not succeeded in making confusion more confounded.
Time and again they have differed from the considered conclusions of those who have gone before them, and all too often they have been unable to agree among themselves. Our criminal legal system is at its least attractive when it sees the highest judges in the land unable to agree on the elements of the most serious offence.
As I said, part of the problem is that murder is such a serious offence. It carries a unique stigma and a unique sentence – mandatory life imprisonment.
I said that murder is a political hot potato and that is why altering the mandatory life sentence is not on the agenda. The terms of reference laid down by the government for the Law Commission’s review required it to make recommendations that “take account of the continuing existence of the life sentence for murder”.
This required the Law Commission to consider this topic with one hand tied behind its back.
Of course, when the mandatory life sentence is imposed on a man who has been convicted of murder it does not mean that he will go to prison for life.
Most ‘lifers’ are released on licence after they have served a period of imprisonment on the recommendation of the Parole Board.
They are, however, subject to recall to serve the rest of their sentence if they breach the terms of the licence. How long they serve before being considered for release is now determined by the judge who sentences them.
He has to specify a minimum term which the defendant must serve before being considered for release.
In fixing the minimum term the judges have to apply guidance laid down in the Criminal Justice Act 2003. The effect of that Act has been in many cases almost to double the length of time that those convicted of murder will stay in prison. In 30 years’ time the prisons are going to be full of geriatric lifers.
The length of sentences imposed by judges is supposed to reflect the seriousness of the offence. The seriousness of the offence depends upon two factors. The culpability of the offender and the consequences of the offence.
So far as the latter is concerned, it is easy to see why the consequences of murder weigh so heavily in the scale when it comes to the penalty.
So far as culpability is concerned, it was always a requirement of our common law that the offence of murder required that the killing be committed ‘with malice aforethought’.
‘Malice aforethought’ – that sinister phrase reflects what the man in the street understands about murder. He believes that murder is killing someone on purpose.
The offence is, of course, much wider than that.
You are guilty of murder if you intended to kill or cause ‘grievous bodily harm’ to your victim. What does ‘grievous bodily harm’ mean? You will not be surprised to hear that the courts have spent a lot of time discussing that question.
Grievous bodily harm means really serious injury, but really serious injury is not in law as serious as all that. It certainly need not be life threatening.
The result of this is, to quote from the same speech of Lord Mustill, that it is “possible to commit a murder not only without wishing the death of the victim but without the least thought that this might be the result of the assault.”
Because murder is such a serious offence and has such serious consequences, the judges and, more recently, Parliament have developed partial defences to a charge of murder.
These apply in special circumstances where, although the defendant intended to kill, the culpability involved in having that intention is mitigated.
The first of these partial defences arises when the defendant kills as a result of provocation.
The second is where the defendant is suffering from abnormality of mind that substantially diminishes his responsibility for his actions.
These are partial defences in that they result in the defendant being convicted, not of murder but of manslaughter.
The fact that so much depends on the state of mind of the defendant has given rise to further problems, for the courts have had to define, with some precision, the test of the relevant state of mind that makes you liable for murder, or alternatively reduces your offence to manslaughter.
What constitutes ‘intention’; and what constitutes ‘provocation’? The Law Lords have considered these questions again and again, giving different answers each time, so that our law has been in a continuous state of flux.
What particularly is wrong with the law at the moment that calls for legislation? First, it remains in a state of flux.
Secondly, and perhaps more seriously, the current law does not ensure that the most culpable offences of homicide are classified as murder and the less serious as manslaughter.
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