Homicide Legislation in England and Wales
The Law Commission has defined the current structure of the homicide legislation in England and Wales as a “rickety structure set upon shaky foundations”.
It states that some aspects of the criminal law have remained unchanged since the seventeenth century, when Britain was reliant upon a system of common law, without black-and-white legislative provisions. This would relate to the underlying principles and theories applied by a judge in interpreting the law. The Commission sets out to rectify this situation through rationalising the offences and defences of homicide in legislation, and abolish (or at least, minimise) the effect of the general law on the application of the homicide law. This would mean, theoretically, that the circumstances surrounding a particular homicide case would not differ on a case-by-case basis, and should establish a certain element of consistency in the law and legal system. The proposed structure for this framework consists of a number of ‘gradings’ for offences, where the worst kinds of manslaughter would become ‘second degree murder’, and both murder and manslaughter would have various offences, defences and sentences depending upon the severity of the crime. For the purposes of this brief, the main focal point will be on the proposed system for murder offences, and the possible effectiveness of such a system.
As previously mentioned, the current system of criminal law for murder offences is drawn from a series of judicial decisions over hundreds of years, which can make the law far too flexible and not generally applicable. As an example, the current general defences for murder are drawn from cases that are quite dated, the circumstances of which may not be necessarily relevant in the modern context. This is illustrated in the case of Moore v Hussey, which established that all laws contain have situations where an excuse for the commission of a breach is just. Further to this, it is clear that the defence of necessity (“…where a person commits an act to avoid the greater evil to himself or another”) was established as early as 1620, in Mouse’s Case. While, understandably, this fundamental interpretation of the law has been subsequently applied in other cases, the lack of a rigid system has meant that a variety of circumstances have developed where this defence can be used. The lack of distinct legislative boundaries has meant that judges have been able to be quite liberal in their application of the law. This is particularly evident in London Borough of Southwark v Williams, where Lord Denning stated that:
Necessity would open a door which no man could shut… The plea would be an excuse for all sorts of wrongdoing. So the courts must, for the sake of the law, take a firm stand.
This statement by Lord Denning demonstrates the elastic qualities that the criminal law can adopt if boundaries are not identified. Interestingly enough, the definition for murder does not derive its legality from an Act of Parliament, but again, rather through the common law. It was first defined by Lord Chief Justice Coke, who stated:
Murder is where a man of sound memory, and of the age of discretion, unlawfully killeth within any country of the realm any reasonable creature in rerum natura under the King’s peace, with malice aforethought, either expressed by the party or implied by law, so that the party wounded, or hurt, etc die of the wound or hurt, etc within a year and a day after the same.
Again, this further demonstrates the reliance that criminal law places on common law. If a reform was to take place as per the Law Commission’s proposals, there would be definitive legislative boundaries in place that would clearly state the defences for homicide offences, as well as mandatory sentencing terms (where applicable). This would eliminate the liberal approach judges have in terms of their interpretations of the current general law principles of homicide law.
The proposed reforms by the Law Commission do not set out to change the laws on homicide as such; rather it sets out to provide a more rigid interpretation of the laws. This is demonstrated by the fact that the proposed reforms intends to maintain the current mandatory life sentence for murder, and intends to offer defences against this sentence in varying degrees. The proposed sentencing structure for homicide related offences is as follows:
• First degree murder: mandatory life sentence
o Intentional killing
• Second degree murder: discretionary life sentence
o Killing with intent to do serious harm;
o Killing through reckless indifference to causing death;
• Manslaughter: fixed term sentence
o Killing through gross negligence as to causing death; or
o Killing through a criminal act which the offender intended to cause some injury or realised might cause some injury.
As one can see, the intention of the Law Commission is to break up the existing principles into three definitive categories. In particular, the crime of murder has been sub-divided into two ‘degrees’. With first degree murder being the most serious, it seems clear that this will only be imposed on a person where they have been established as not only committing the crime, but also where an intention to commit that crime has been proven. Where the intent to kill is not present, the charge will most likely be relegated to murder in the second degree (or possibly even manslaughter), and hence a reduced sentence will apply. In the current law, the jurisdiction of murder extends beyond cases that require intent to kill. This clouds the distinction between murder and manslaughter, and the creation of a ‘second degree murder’ category should eliminate this discrepancy (or at least minimise its influence). This notion is further supported by the High Court, which states:
Although inflicting grievous bodily harm with intent is often (or usually) serious, on occasion it can be committed in circumstances where death was highly unlikely, in the sense that the injury was not obviously life-threatening. Murder, in these circumstances, as the charge, is inappropriate.
This further justifies the concept of maintaining two separate legislative definitions of murder. It gives judges limited scope to liberally interpret such definitions, and hence would make for a much fairer and consistent legal approach to homicide. As mentioned in the Consultation Paper, one consequence of separating murder into two categories is the availability of the partial defences only on the charge of first degree murder. The rationale behind this would be that because the charge of second degree murder carries a discretionary life sentence, there would be no need for a partial defence, as the mandatory life sentence would not be imposed. On this charge, a judge would be able to assess all the circumstances in the case and impose a sentence based on these factors. This would obviously be useful in situations where the intent to kill cannot be proven, but there is evidence of intent to do serious harm.
It is believed, under the current system, that the defences to homicide have become over-complicated, and are often applied inconsistently. By outlining these defences legislatively, this should eliminate this inconsistency. For example, Schedule 21 to section 269 of the Criminal Justice Act 2003 gives guidelines as to how courts should deal with the imposition of a custodial sentence (eg. The minimum length of a custodial term for “aggravated” murder). It is suggested by the Law Commission that a similar procedure be adopted for the available defences for murder, for example, provocation. This would mean that a person who was charged with second degree murder, and who pled guilty based on provocation, might be sentenced to a minimum term of seven years. This again, would give the courts a limited scope to interpret the law differently, and would create an element of legal certainty among the public. It may also make people more reluctant to commit the crime in the long term.
It has been said that the recently enacted Criminal Justice Act 2003 attempts to overcome many of the common law hurdles and complexities that have been in place for many hundreds of years. While this is true in some respects (e.g. by recommending minimum sentences for some homicide crimes), it still relies heavily upon the general law principles previously mentioned. The Act does not seek to entrench the underlying principles of murder into black-letter law, but rather it still allows these to run their course. In effect, the Criminal Justice Act 2003 is best used to conclude the legal argument of murder (e.g. on guidelines for sentencing). For example, the Criminal Justice Act 2003 does not seek to further clarify Coke’s definition of murder in legislation; rather it accepts the previous general law approach as common practice, which stills leaves judicial interpretation as a highly variable, and decisive, factor in trials for murder. While this recently introduced law seeks to modernise the British criminal justice system and take it out of its outdated common law context, it only succeeds in providing judicial guidance towards the end of the trial, not during it. The Act does not provide for what defences (partial or full) are acceptable in particular circumstances, nor does it stipulate in specific terms what crimes should be dealt with more seriously than others. It does not outline, in black-and-white terms, the specific requirement of intent to kill in order for the mandatory life sentence to apply. It gives judges too much power, in terms of deciding the relevance of factors to the case, and also the sentencing, in a similar way to how the old English common law system worked centuries ago (during which time the founding principles of homicide were formed). These principles include the establishment of when life begins in terms of being a victim of murder (i.e. the killing of an infant child), which then establishes the basic requirements for being a victim of homicide. These common law principles have also established that the charge of murder can only be applied in circumstances where the killing of a person is unlawful. This basic framework has evolved in such a way, over the course of two or three centuries, that the requirements for murder are no longer achieved through a simple application of basic common law tests, rather it has become a bunch of intertwined, amalgamated and complex jurisprudence that, it appears, only judicial officials are qualified to interpret.
Tags: common law, criminal law, defence of necessity, homicide case, manslaughter, second degree murder
