Why is homicide law reform topical?
The government are proposing several changes to the law of homicide in their consultation Murder, Manslaughter and Infanticide: proposals for reform of the law.((Ministry of Justice, July 2008)) It is expected that these proposals, or modified versions of them, will form part of the Law Reform, Victims and Witnesses Bill, due to be published in December of this year. The new law could be in force as early as 2009.
How important are the changes?
Any amendment of the law of homicide is, naturally, important – both because homicide offences are amongst the most serious of all criminal offences, meaning that conviction will result in serious restrictions upon the liberty of the offender, and because they form part of the state’s obligations to protect the right to life under Article 2 European Convention on Human Rights (ECHR). The European Court of Human Rights has said that:
“The positive obligation to take all appropriate steps to safeguard life for the purposes of Article 2 … entails above all a primary duty on the State to put in place a legislative and administrative framework designed to provide effective deterrence against threats to the right to life …” ((Öneryildiz v. Turkey , app. no. 48939/99, judgment of 30/11/04, ECtHR (Grand Chamber), para 89))
In the context of domestic law, the changes are extremely important because they result from an ambitious attempt on the part of the Law Commission to create a new structure of homicide offences, replacing the traditional murder/manslaughter division for general homicide offences with a three-tier system, and amending the partial defences and rules regarding complicity.((See the Law Commission’s report Murder, Manslaughter and Infanticide (LC 304); its earlier consultation paper A New Homicide Act for England and Wales? (CP no 177) and JUSTICE’s response to that consultation)) The government, however, has chosen – at least for now – to go forward with only some of these changes, in modified form. JUSTICE and other commentators believe that in many ways this will worsen the existing situation and that wholesale reform is needed.((See Prof JR Spencer, ‘Messing up Murder’, Archbold News, September 2008))
What did the Law Commission propose?
In its 2006 report the Law Commission proposed a three-tier system of general homicide offences: first degree murder (which would attract the mandatory life sentence); second degree murder (with a discretionary life sentence); and manslaughter (with a discretionary life sentence). In its 2005 consultation paper, the Law Commission had provisionally proposed that ‘first degree murder’ should be confined to intentional killing (the clarity and coherence of which JUSTICE had supported), but in the 2006 report this was extended additionally to killing with intent to cause serious injury, coupled with an awareness of a serious risk of causing death.
The Law Commission also proposed changes to other aspects of the law of homicide, including provocation, diminished responsibility and complicity. The current law of provocation, as only recently settled in the case of Attorney-General v Holley  UKPC 23, would be replaced by a partial defence of killing in response to gross provocation or to a fear of serious violence. The requirement of a loss of self-control would be removed. The partial defence of diminished responsibility would be modernised; its requirements would include an abnormality of mental functioning arising from a recognised medical condition, and/or in the case of a defendant under the age of eighteen, developmental immaturity. Importantly, both partial defences would reduce first degree murder to second degree murder within the Law Commission’s structure (rather than as now, reducing murder to manslaughter). They would therefore apply to fewer cases in the first instance than the current partial defences.
What changes to the law is the government pursuing?
The government has, at least for now, elected not to proceed with reforms to the structure of homicide. However, it has taken up, in revised form, the Law Commission’s proposals regarding provocation and diminished responsibility, which in its conception would as now reduce murder to manslaughter. ‘Provocation’ would be replaced by killing in circumstances where, amongst other conditions, the defendant must have had a fear of serious violence, or things must have been done and/or said which ‘amounted to an exceptional happening’ and caused the defendant to have a justifiable sense of being seriously wronged. The requirement for a loss of self-control has been reinserted, albeit that it need not be ‘sudden’.
In relation to diminished responsibility, the Law Commission’s proposals are largely retained. However, the ‘developmental immaturity’ gateway for child defendants has been removed.
The government also proposes to change to the law of complicity for homicide, but not adopting the more general proposed changes to the law of complicity proposed in the Law Commission’s 2007 report Participating in Crime.((LC 305)) Other Law Commission proposals from the 2006 homicide report, such as the view that duress should become a defence to murder, and that the government should hold a public consultation on the issue of mercy killing, have sadly not yet been taken up.
What is JUSTICE’s view?
JUSTICE feels strongly that the government has failed to realise that the Law Commission’s scheme for murder, manslaughter and infanticide worked as a coherent whole but that to pick and choose certain elements while rejecting other, major parts of it risks creating huge problems in the law and in practice. In particular, the partial defences of provocation and diminished responsibility in the Law Commission’s scheme were supposed to reduce first degree murder to second degree murder; the mandatory life sentence applied to a far smaller number of cases in that scheme. They cannot simply, therefore, be transplanted into the context of the old murder/manslaughter distinction. Further, the alterations made to the partial defences by government have been largely for the worse: reinserting the loss of self-control requirement into provocation may mean that women victims of domestic violence (to whom the government intended to show some measure of sympathy) will still find it difficult to make out the partial defence; while losing the ‘developmental immaturity’ aspect of diminished responsibility for children would mean that an important opportunity to recognise the distinct situation of young children in the criminal justice system had been lost.