Calls for murder law reform may be ignored

14 September 2010 by Matthew Hill

Keir Starmer

The Director of Public Prosecutions, Keir Starmer QC, has stated his support for a reform of the law of homicide that would see the introduction of different degrees of murder in this country.

Such a proposal was one of the principal recommendations contained in the Law Commission’s 2006 Report on Murder, Manslaughter and Infanticide (Law Com No 304). Mr Starmer’s predecessor, Sir Ken MacDonald, and the former Metropolitan Police Commissioner, Lord Blair, have also stated their support for the changes.

The Law Commission’s Report, which can be accessed here, outlined the following structure for homicide offences:

• First Degree Murder: (i) intentional killing; or (ii) killing with an intention to cause serious injury, in the awareness that there is a serious risk of causing death.
• Second Degree Murder: (i) killing with intent to do serious injury; or (ii) killing with intent to cause some injury or fear or risk of injury, in the awareness that there is a serious risk of causing death; and (iii) killing with the intent for first degree murder, but where a defence of provocation, diminished responsibility, or suicide pact succeeds.
• Manslaughter: (i)awareness that the act posed a serious risk of causing some injury; or (ii) killing through gross negligence as to causing death; and (iii) participating in a criminal joint venture in which there was an obvious risk that someone might be killed.

The Law Commission were not asked to consider sentencing guidelines for their reformed system, but they did tentatively suggest that First Degree Murder should continue to attract a mandatory life sentence, while Second Degree Murder and Manslaughter would have discretionary life sentences.

It is important to note that the Law Commission envisaged this new hierarchy of offences being implemented as part of a wider set of reforms to the law, including significant changes to the partial defences of provocation and diminished responsibility, and the extension of the defence of duress to murder cases. The previous government indicated a willingness to adopt at least some of these recommendations (notably on provocation), while rejecting the multi-tiered approach set out above. It is questionable whether the principles and design that ran through the Law Commission’s Report will be retained if legislators take a pick-and-mix approach to reform rather than adopting a comprehensive legislative solution.

Reforms along the lines suggested by the Law Commission has long been supported by legal academics, journalists and commentators, and the support of prominent figures from the CPS and police has helped to bring the topic to a wider audience. Pressure for change has mounted with the growing unease at the manner in which peripheral members of a gang involved in a killing are being prosecuted. Currently, the blunt tools of the existing murder law and joint enterprise principles can leave a jury facing an unappealing –  and more importantly, unjust – choice between a murder conviction (with a compulsory life sentence) and acquittal (at least in respect of homicide charges).

The proposed reform has not, however, been universally welcomed. The former Lord Chancellor, Lord Falconer, has expressed scepticism, particularly on the effect of the changes on gang-related violence. He argued that, “the message that the [current] law is sending out is that we are very willing to see people convicted if they are a part of gang violence and that violence ends in somebody’s death … I think broadly the view of reasonable people is that you probably do need a quite draconian law in that respect.”

Against this, three points can be made. First, the Law Commission were at pains to point out that their reforms, when viewed as a whole, could lead to increased convictions for First or Second Degree murder, not least through tightening up the law of provocation and providing the jury with more options in difficult cases (including gang-violence cases). Second, the question of “messages” and “toughness” must be secondary to the overriding objective of any legal system, which is to do justice. Third, the most prominent jurisdiction using different degrees of murder is the United States, which is not subject to much international criticism for an overly liberal approach to criminal justice.

Will, then, the new impetus for reform of the homicide laws actually lead to legislative change? On the one hand there is more interest in this topic than for many years, and the pressure is coming from prominent prosecutors and practitioners as well as academics and commentators. However, two major obstacles must be overcome. First, reform of the law of murder is never likely to be high on any government’s legislative agenda; the more so when it is a coalition which must balance the demands of two parties in the same amount of Parliamentary time. Second, there is the political danger of being seen to do anything that is “soft” on crime. In the Press Briefing Note issued with its 2006 Report, the Law Commission asked itself the question: “Do these recommendations ‘toughen up’ on homicide?” It’s answer was: “We do not favour the use of such crude judgments about a wide-ranging set of recommendations.” Unfortunately, any politician charged with implementing the Commission’s proposals will probably feel unable to take such a commendably high-minded approach.

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