Calls for murder law reform may be ignored

14 September 2010 by

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.

Read more:

1 comment;


  1. Robert Newsom, JD says:

    “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”

    Ouch! That hurts! Still, if the shoe fits, I suppose we have to wear it.

Comments are closed.

Welcome to the UKHRB


This blog is run by 1 Crown Office Row barristers' chambers. Subscribe for free updates here. The blog's editorial team is:
Commissioning Editor: Jonathan Metzer
Editorial Team: Rosalind English
Angus McCullough QC David Hart QC
Martin Downs
Jim Duffy

Free email updates


Enter your email address to subscribe to this blog for free and receive weekly notifications of new posts by email.

Subscribe

Categories


Tags


Aarhus Abortion Abu Qatada Abuse Access to justice adoption AI air pollution air travel ALBA Allergy Al Qaeda Amnesty International animal rights Animals anonymity Article 1 Protocol 1 Article 2 article 3 Article 4 article 5 Article 6 Article 8 Article 9 article 10 Article 11 article 13 Article 14 article 263 TFEU Artificial Intelligence Asbestos Assange assisted suicide asylum asylum seekers Australia autism badgers benefits Bill of Rights biotechnology blogging Bloody Sunday brexit Bribery British Waterways Board Catholic Church Catholicism Chagos Islanders Charter of Fundamental Rights child protection Children children's rights China christianity citizenship civil liberties campaigners civil partnerships climate change clinical negligence closed material procedure Coercion Commission on a Bill of Rights common law communications competition confidentiality consent conservation constitution contact order contact tracing contempt of court Control orders Copyright coronavirus costs costs budgets Court of Protection crime criminal law Cybersecurity Damages data protection death penalty defamation DEFRA deportation deprivation of liberty derogations Detention Dignitas diplomacy disability disclosure Discrimination disease divorce DNA domestic violence duty of care ECHR ECtHR Education election Employment Environment Equality Act Equality Act 2010 Ethiopia EU EU Charter of Fundamental Rights EU costs EU law European Convention on Human Rights European Court of Human Rights European Court of Justice evidence extradition extraordinary rendition Facebook Family Fatal Accidents Fertility FGM Finance foreign criminals foreign office foreign policy France freedom of assembly Freedom of Expression freedom of information freedom of speech Gay marriage gay rights Gaza Gender genetics Germany Google Grenfell Gun Control Health HIV home office Housing HRLA human rights Human Rights Act human rights news Human Rights Watch Huntington's Disease immigration India Indonesia injunction Inquests insurance international law internet inuit Iran Iraq Ireland islam Israel Italy IVF ivory ban Japan joint enterprise judaism judicial review Judicial Review reform Julian Assange jury trial JUSTICE Justice and Security Bill Law Pod UK legal aid legal aid cuts Leveson Inquiry lgbtq liability Libel Liberty Libya lisbon treaty Lithuania local authorities marriage Media and Censorship mental capacity Mental Capacity Act Mental Health military Ministry of Justice modern slavery morocco murder music Muslim nationality national security naturism neuroscience NHS Northern Ireland nuclear challenges Obituary parental rights parliamentary expenses scandal patents Pensions Personal Injury physician assisted death Piracy Plagiarism planning planning system Poland Police Politics Pope press prison Prisoners prisoner votes Prisons privacy Professional Discipline Property proportionality Protection of Freedoms Bill Protest Public/Private public access public authorities public inquiries quarantine Radicalisation rehabilitation Reith Lectures Religion RightsInfo right to die right to family life Right to Privacy right to swim riots Roma Romania Round Up Royals Russia saudi arabia Scotland secrecy secret justice Secret trials sexual offence Sikhism Smoking social media social workers South Africa Spain special advocates Sports Standing starvation statelessness stem cells stop and search Strasbourg super injunctions Supreme Court Supreme Court of Canada surrogacy surveillance Syria Tax technology Terrorism tort Torture travel treason treaty accession trial by jury TTIP Turkey Twitter UK Ukraine universal credit universal jurisdiction unlawful detention USA US Supreme Court vicarious liability Wales War Crimes Wars Welfare Western Sahara Whistleblowing Wikileaks wildlife wind farms WomenInLaw Worboys wrongful birth YearInReview Zimbabwe

Disclaimer


This blog is maintained for information purposes only. It is not intended to be a source of legal advice and must not be relied upon as such. Blog posts reflect the views and opinions of their individual authors, not of chambers as a whole.

Our privacy policy can be found on our ‘subscribe’ page or by clicking here.

%d bloggers like this: