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Published: Fri, 02 Feb 2018
What constitutes murder has changed overtime
What constitutes murder has changed overtime. The scope of the law of murder is still a matter of controversy and opinions of legislative, executive and judicial branch are divided. Moving away from case law it is worth to look at other legal steps taken in this matter. Until 1957 murder included killing during the commission of a felony, such as burglary or rape, and the mens rea did not require an intention to kill which was known as constructive malice rule. It is now limited to those who intend to kill (or cause GBH) or foresee death as a virtual certainty. The legislature has not been involved since 1957 and 1965, but a committee of the House of Lords reviewed the law in 1989. It consisted of 11 members of the House of Lords, with two specialist advisers, and it produced the Report of the Select Committee on Murder and Life Imprisonment (The Nathan Report). In this report judges argued that murder should be defined by statute in England and Wales and that it should be deemed to have occurred if the defendant intends to cause death, or serious personal harm which may cause death. They also concluded that they ought to have discretion to treat each case according to its circumstance and that mandatory life sentence for murder should be abolished. However, these recommendations were not applied in practice. Another attempt to influence unclear law of murder were Commission Consultation Papers.
Parliament has not done much on regarding the law of murder since Homicide Act 1957 and certainly it has never form a statutory definition of murder. Nevertheless, in 2003 the Criminal Justice Act was passed that is an essential piece of legislation. The Act should be mentioned here as it probably made the most important legislative changes to the law of murder since the abolition of death penalty in 1965. It however does not adequately address the most controversial of the remaining judge-made aspects of the law of murder. For example, the 2003 Act does not seek to change the definition of “murder”, even though, for certain types of murder, it introduces such high starting points for fixing the minimum term of the life sentence. At common law, however, murder is committed not only when there was an intention to kill but also when there was an intention to do only serious harm to the victim. It is inappropriate to treat someone who did not intend to kill, say, a child or a police officer in the same way as someone who did intend to kill such a person when deciding how long they should spend in prison before being eligible for release. This is so even if a very serious crime is committed in both cases. Consequently, the 2003 Act treats the fact that there was only an intention to do serious harm as a “mitigating factor” which can justify setting a lower minimum term.
The Law Commission make considerable criticisms of the current law on homicide. In its report it states that “The law governing homicide in England and Wales is a rickety structure set upon shaky foundations.”and that “The present law of murder in England and Wales is mess” . In particular they feel that the current law does not ensure that different levels of criminality are ‘accurately graded and labelled’. As a solution, they propose a new framework consisting of three general homicide offence; namely first degree murder, second degree murder and manslaughter. They also propose a subsidiary category for other ‘specific homicide offences’, which is to include offences such as ‘assisting suicide’. From an abstract point of view, such codification should make the law clearer and more coherent.
First degree murder is to be the classification for the most serious offences, and would be the only category that would attract a mandatory life sentence. This would be confined to cases where the offender intended to kill. This suggested reform would certainly score points on the ‘fair labelling’ charter, as it ensures that those who commit the most serious crimes are given a label that reflects this. Such reforms are also likely to appeal to advocates of the ‘just deserts’ doctrine, as it would mean that only those who committed the most serious of offences would be subject to a mandatory life sentence. This contrasts with the current law, where those who intended only to cause grievous bodily harm can be found guilty of murder, and issued with an automatic life sentence.
Second degree murder is to encompass the most serious offences after ‘first degree’ murder, which includes killing where the intention was to cause grievous bodily harm. This is a downgrading of what was previously classified as murder, with the advantage being that it would not attract an automatic life sentence. The second degree murder classification would also encompass the current partial defences of diminished responsibility and provocation. This would resolve the current anomaly in the law which sets an intention to cause grievous bodily harm (murder) at a higher level of liability that an intention to kill (manslaughter where offender provoked or suffering from diminished responsibility). Second degree murder is also to include killing through reckless indifference to causing death. This is currently classified as manslaughter (involuntary). The Commission justify this ‘upgrading’ as it argues the offender is indifferent to whether death results from his unjustified risk. It is the fact that the offender is willing to tolerate the unjustified death of another which it feels merits grading it higher than the current ‘manslaughter’ label that it attracts.
Since voluntary manslaughter (partial defences) and reckless manslaughter would be re-branded as second degree murder, the offence of manslaughter would become a much narrower offence. The offence would therefore only encompass causing death by (1) gross negligence, (2) an act intended to cause some, but not serious, physical harm and (3) an act foreseen as involving a risk of causing physical harm
The Law Commissions reforms, on a superficial level seem like a great constitutional change for the twenty-first century. It’s been almost 50 years since Parliament last passed legislation on homicide, and an overhaul is certainly welcomed. However, question marks can certainly be raised over certain aspects to the suggested reform. With respect to murder, whilst the narrowing of its scope solely to situations where intention is clearly present is helpful in ‘keeping the options simple to the jury’, it does have the disadvantage of potentially reducing the scope of those found guilty of murder, since an ‘intention to kill’ places the burden of proof very high for the prosecution.
With regards to second degree murder, this has been drafted include the partial defences of provocation and diminished responsibility. This is an upgrading to what is currently manslaughter. What this will mean is that cases like Ahluwalia will be treated as second degree murder rather than manslaughter. What this will mean is that battered women will be labeled as murderers by a lay person (the ‘second degree’ prefix having little material impact on a lay person’s understanding). This clearly goes against the grain of the ‘fair labelling’ argument and yields results which is manifestly unjust for the offender. There is in my mind no justification for upgrading cases like Ahluwalia from manslaughter to (second degree) murder.
These proposed reforms where addressed by some legal organisations. One of them is Justice which is an independent legal organisation which aim to improve British justice through law reform and policy work, publications and training. ‘Justice’ argues that the law of homicide should promote clarity, consistency and legal certainty and that in order to achieve that the definition of murder should be clarified and include only those who “intentionally and unlawfully kill another person at the time when they have the freedom and capacity to do so”. They also believe that Commission’s proposed framework would improve the structure of the law of homicide. Nevertheless, they disapprove that intention to cause grievous bodily harm or reckless killings where partial defences apply should be within the mens rea for murder especially that it carries mandatory life sentence.
Another legal organisation is Liberty known as the National Council for Civil Liberties that has also taken a view in this matter. The problem that is identified by the law Commission is the one that mens rea for murder covers both the ‘contract’ killer who kills with premeditation and a person who kills by accident not intending nor expecting the result of his act. This mens that both of them would be convicted of murder and sentenced to life imprisonment. ‘Liberty’ believes that the proposed reforms provide a coherent structure which is likely to be understood by public as well as the jury. They support to the three-tier system idea but disagree with changing the definition of ‘really serious harm’ developed in Smith. The Commission proposed to change it to “…harm of such a nature as to endanger life, or to cause, or to be likely to cause, permanent or long-term damage to a significant aspect of physical integrity or mental functioning”. It could be seen that this restricted definition would have a huge impact on murder convictions as ‘grievous bodily harm’ known as ‘serious harm’ constitutes part of the mens rea for murder. Therefore if the definition was changed less people would be convicted of murder.
The Ministry of Justice proposals for reform of the law that were introduced in response to the Law Commission’s murder report could be criticised as they do not take forward the idea of a US-style scale of first and second murder, which was recommended in the commission’s second report in 2006. The proposals do not even refer to the classification of murder or its scope. They mainly address the issues of partial defences within current two-tier homicide structure.
The Ministry of Justice proposals were also not left without comments. ‘Justice’ and ‘Liberty’ produced reports in response to those proposals. ‘Liberty’ criticised the Ministry of Justice proposals because of the lack of reforms on the scope and degrees of murder. They argued that the classification of the offence of murder to first and second degree would help prosecution to prove beyond all reasonable doubt that defendant is guilty of murder. ‘Liberty’ was concerned that the Government has not taken the opportunity to review the abolition of the mandatory life sentence for murder, or alternatively, the Law Commission’s proposed offence structure. They suggested that, the Government ought to consider that the mandatory life sentence for murder could be retained and the offence structure proposed by the Law Commission would provide a coherent and logical framework for the law. The proposed structure would also provide courts with the much-needed flexibility in relation to sentencing described above.
‘Justice’ also comments on the need for addressing the crucial murder law reforms. In its response to the Government proposals they stated that the government has taken up the Law Commission’s proposed partial defences, altered them slightly, and is attempting to apply them, without it seems fully considering the consequences, to the current two-tier homicide structure, where they will operate to reduce murder to manslaughter and will be available in cases where it is alleged there was an intention to cause serious harm but no awareness of a risk of causing death. They also argued that the Government should not carry out with the reforms of partial defences unless the three-tier system will be in force as these reforms do not fit within the current legal system.
It can be seen that judges are also reluctant to accept the proposed three-tier system. From looking at the House of Lords debate it can be noticed that the law Lords who deal with cases directly do not share the same view as the Law Commisson. Lord Lloyd of Berwick would rather leave mens rea for murder as only intention to kill but would not include a lesser degree of murder that covers intention to cause ‘grievous bodily harm’ as that should be classified as manslaughter. He argued that this would simplify the law and make it easy to reach the verdict by the jury. Lord Dholakia also doubts in the Law Commission’s recommendations as according the second degree murder reform “the offender who punched a victim in the face, intentionally breaking his nose, would be guilty of murder if the victim fell, banged his head on the kerb and died from a brain haemorrhage”. Another issue discussed in the debate was abolishing a mandatory life sentence for murder. The judges were in favour of this reform as they thought that it would resolve injustice that often occurs when the jury struggle to understand the application of implied malice. Lord Dholakia argued that abolishing the mandatory life sentence would give judges the ability to take all the circumstances of each case into account and to graduate their sentences accordingly, passing determinate sentences where appropriate and reserving life sentences for the most heinous cases. It can be seen that judges wants reforms that would both simplify the law and give them more discretion to sentencing and what goes with it also more power. In Lord Morris’ opinion the Law Commission proposals in no way simplify the law and they will not lead to less frequent or shorter trials and it could only add complexity to the task of a jury trying a case of culpable homicide. He also stated that one key problem that the Law Commission identified with the present law is the mismatch between a general view of what murder means and the legal definition. This means that juries may convict killers of manslaughter rather than murder where there was no intention to kill the victim, only an intention to do serious harm, which is of course a sufficient intent for a murder conviction. That must be partly because the label of murder does not seem appropriate in all the circumstances.
The problem with the definition of “serious injury” mentioned by the Commission has not been addressed by the law lords. They only referred to the point that at present, where the mens rea is also killing through an intention to do serious harm, the jury is assigned with the decision about whether the harm intended was serious which has not been made clear. Therefore they make that decision using the good common sense.
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