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You are here: BAILII >> Databases >> The Law Commission >> A New Homicide Act For England And Wales? (Consultation Paper) [2005] EWLC 177(10) (20 December 2005)
URL: http://www.bailii.org/ew/other/EWLC/2005/177(10).html
Cite as: [2005] EWLC 177(10)

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    PART 10 LIST OF PROVISIONAL PROPOSALS AND CONSULTATION QUESTIONS

    10.1     We set out below a summary of our provisional proposals and questions on which we invite the views of consultees. We would be grateful for comments not only on the matters specifically listed below, but also on any other points raised in this paper. It would be very helpful if, when responding, consultees could indicate either the paragraph of the summary that follows to which their remarks relate, or the paragraph of this paper in which the issue was raised.

    THE STRUCTURE OF HOMICIDE OFFENCES

    Provisional proposal

    10.2     We provisionally propose that the structure of a reformed law of homicide should comprise three general homicide offences supplemented by specific offences:

    (1) "first degree murder" (mandatory life sentence);
    (2) "second degree murder" (discretionary life sentence);
    (3) manslaughter (fixed term of years maximum sentence); and
    (4) specific homicide offences, such as assisting suicide and infanticide (fixed term of years maximum sentence).

    [paragraph 2.7]

    Questions

    10.3     Do consultees agree that the framework that we are proposing for grading and labelling offences would be an improvement on the existing structure of the law of homicide?

    10.4     Whether the answer is "yes" or "no":

    (1) do respondents believe that there is a better framework than the one that we are proposing?
    (2) If so, what would that framework be?

    THE GENERAL HOMICIDE OFFENCES THAT WE ARE PROPOSING

    "First degree murder"

    Provisional proposal

    10.5     We provisionally propose that all unlawful killings committed with an intention to kill should be "first degree murder" unless the defendant has a partial defence, namely provocation, diminished responsibility or duress.

    [paragraph 2.2(2)]

    The sentence for the offence should be imprisonment for life.

    Questions

    10.6 We ask consultees whether they agree that:

    (1) "first degree murder" (and the mandatory life sentence) should be confined to unlawful killings committed with an intention to kill;
    (2) an unlawful killing committed with an intention to kill should be "first degree murder" irrespective of whether the killing was premeditated;
    (3) an unlawful killing committed with an intention to kill should be "first degree murder" irrespective of the status of the victim.

    "Second degree murder"

    Provisional proposals

    10.7 We provisionally propose that:

    (1) all unlawful killings committed with an intention to cause serious harm should be "second degree murder";

    [paragraph 3.2(2)]

    (2) all unlawful killings committed with reckless indifference to causing death should be "second degree murder";

    [paragraph 3.2(3)]

    (3) all unlawful killings committed with an intention to kill should be "second degree murder" if the defendant has a partial defence, namely provocation, diminished responsibility or duress.

    [paragraphs 6.2(1) and (3) and paragraphs 7.1(1)(a)(ii)]

    The maximum sentence for the offence should be imprisonment for life.

    Questions

    10.8 We ask whether consultees agree that:

    (1) the law should draw a distinction between "first degree murder" and second degree murder";
    (2) an unlawful killing committed with an intention to cause serious harm, but without an intention to endanger life, is sufficiently blameworthy to be "second degree murder";
    (3) an unlawful killing committed with reckless indifference to causing death is sufficiently blameworthy to be "second degree murder";
    (4) provocation and diminished responsibility should have the same effect, namely to reduce "first degree murder" to the same lesser offence of "second degree murder", so that the jury is not forced to choose between them when they are pleaded together;
    (5) provocation and diminished responsibility should reduce "first degree murder" to "second degree murder" rather than manslaughter;
    (6) provocation and diminished responsibility should not be partial defences to "second degree murder";
    (7) the maximum sentence for "second degree murder" should be life imprisonment.

    10.9     We invite views as to whether consultees would favour the following restricted definition of "serious harm":

    Harm is not to be regarded as serious unless it is 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.

    10.10     If so, we ask whether an intention to cause serious harm, so defined, would be most appropriately placed within the definition of "first degree murder" or "second degree murder".

    10.11     We invite views as to whether "second degree murder" on the basis of acting with reckless indifference to causing death should be restricted to cases in which the reckless indifference arose from the commission or attempted commission of a serious crime.

    Manslaughter

    Provisional proposals

    10.12     We provisionally propose that conduct causing another's death should be manslaughter if: a risk that the conduct would cause death would have been obvious to a reasonable person in the defendant's position, the defendant had the capacity to appreciate the risk and the defendant's conduct fell far below what could reasonably be expected in the circumstances.

    [paragraph 3.2(4)]

    10.13     We provisionally propose that it should be manslaughter to cause another person's death by a criminal act intended to cause physical harm or by a criminal act foreseen as involving a risk of causing physical harm.

    [paragraph 3.2(4)]

    Questions

    10.14     We ask whether consultees agree that:

    (1) killing through gross negligence should result in a conviction of manslaughter;
    (2) manslaughter through gross negligence should be confined to cases where the defendant's conduct involved an obvious risk of death (as opposed to serious harm);
    (3) killing through "reckless stupidity" should result in a conviction of manslaughter rather than "second degree murder";
    (4) it should be manslaughter to cause death by a criminal act intended to cause some, but not serious, physical harm;
    (5) it should be manslaughter to cause death by a criminal act foreseen as involving the risk of causing some harm even if the harm foreseen was not serious and death was neither foreseen nor could have been foreseen.

    THE MEANING OF INTENTION

    10.15     We invite views on the respective merits of the two Models that we identified in Part 4.

    The First Model

    (1) Subject to the proviso set out below:
    (a) A person acts "intentionally" with respect to a result when he or she acts either:
    (i) in order to bring it about, or
    (ii) knowing that it will be virtually certain to occur; or
    (iii) knowing that it would be virtually certain to occur if he or she were to succeed in his or her purpose of causing some other result.
    (2) Proviso: a person is not to be deemed to have intended any result, which it was his or her specific purpose to avoid.

    The Second Model

    10.16     The Second Model is based on codification of the common law:

    (1) A person is to be regarded as acting intentionally with respect to a result when he or she acts in order to bring it about.
    (2) In the rare case where the simple direction in clause (1) is not enough, the jury should be directed that:
    they are not entitled to find the necessary intention with regard to a result unless they are sure that the result was a virtual certainty (barring some unforeseen intervention) as a result of the defendant's actions and that the defendant appreciated that such was the case.
    (3) In any case where the defendant's chance of success in his or her purpose of causing some other result is relevant, the direction in clause (2) may be expanded by the addition of the following phrase at the end of the clause (2) direction:
    or that it would be if he or she were to succeed in his or her purpose of causing some other result, and that the defendant appreciated that such was the case.

    COMPLICITY IN "FIRST DEGREE" MURDER

    Provisional proposals

    10.17     We provisionally propose that where a person ("D") provides the perpetrator ("P") with encouragement or assistance in relation to P's offence of "first degree murder", D should be guilty of "first degree murder" if:

    (1) D intended that "first degree murder" should be committed;
    (2) D was a party to a joint venture with P to commit "first degree murder"; or
    (3) D was a party to a joint venture with P to commit another crime and D foresaw that P might commit "first degree murder" in the course of that venture.

    [Paragraph 5.1(1)]

    10.18     We provisionally propose that D should be able to rely on duress as a partial defence to "first degree murder".

    [Paragraph 5.1(3)]

    10.19     We provisionally propose that D should be guilty of "complicity in an unlawful killing" (alternatively, manslaughter) instead of "first degree murder" if D:

    (1) was a party to a joint venture with P to commit a crime;
    (2) D intended or foresaw that harm (or the fear of harm) might be caused by a party to the venture; and
    (3) it would have been obvious to a reasonable person in D's position that someone might be killed as a result of the venture.

    [Paragraph 5.1(4)]

    Questions

    10.20     We ask whether consultees agree that:

    (1) D should be guilty of "first degree murder" if D was a party to a joint venture with P and D foresaw that P might commit "first degree murder";
    (2) D should not have a partial defence to "first degree murder" simply on the basis that he played a peripheral role in the murder;
    (3) D should be able to rely on duress as a partial defence to "first degree murder"; and
    (4) D should be guilty some form of homicide offence instead of "first degree murder" if D was a party to a joint venture with P to commit a crime, D intended or foresaw that harm (or the fear of harm) might be caused by a party to the venture and it would have been obvious to a person in D's position that someone might be killed as a result of the venture.
    (5) If so, whether it be labelled "complicity in unlawful killing" or manslaughter.

    THE DEFINITION OF THE PARTIAL DEFENCE OF DIMINISHED RESPONSIBILITY

    Provisional proposal

    10.21     We provisionally propose that the definition of the defence of diminished responsibility should be reformulated as follows:

    (1) A person who would otherwise be guilty of "first degree murder" is not guilty of "first degree murder" if, at the time of the act or omission causing death, that person's capacity to
    (a) understand events; or
    (b) judge whether his or her actions were right or wrong; or
    (c) control him or herself
    was substantially impaired by an abnormality of mental functioning arising from an underlying condition or developmental immaturity, or both; and
    (2) the abnormality of mental functioning or the developmental immaturity or the combination of both was a significant cause of the defendant's conduct in carrying out the killing.
    (3) "Underlying condition" means a pre-existing mental or physiological condition.

    [paragraph 6.2(2)]

    Questions

    10.22     We ask consultees:

    (1) whether the current definition of diminished responsibility in section 2 of the Homicide Act 1957 should be replaced;
    (2) if so, whether it should be replaced by the definition that we are provisionally proposing or by a different definition;
    (3) whether, if the definition was to remain broadly as it is under section 2, it should at least be reformed to the extent of removing the need to show that an abnormality of mind had to arise from one of the causes stipulated in the section;
    (4) whether, whatever the definition, "developmental immaturity" should be added as a possible source of diminished responsibility, irrespective of whether the accused's development was "arrested or retarded";
    (5) if so, whether "developmental immaturity" should be confined to persons under a particular age at the date of committing the offence and, if so, what the age limit should be;
    (6) whether the expert evidence provided in diminished responsibility cases is satisfactory and, if not, whether the system for providing it can be improved.

    THE PARTIAL DEFENCE OF PROVOCATION

    Provisional proposal

    10.23     We provisionally propose that the principles that should govern the partial defence of provocation are those that we recommended in our report Partial Defences to Murder.[1]

    [paragraph 6.2(4)]

    Questions

    10.24     We ask whether consultees agree that the principles that should govern the partial defence of provocation are those that we recommended in our report Partial Defences to Murder.

    10.25     We invite views as to whether, if provocation is a partial defence to "first degree murder" but not "second degree murder", it should be confined to cases where the accused killed because he or she acted in response to a fear of serious violence.

    DURESS

    Provisional proposal

    10.26     We have already provisionally proposed that duress should be a partial defence to "first degree murder".

    10.27     We provisionally propose that for a plea of duress to succeed as a partial defence to "first degree murder" (and to "second degree murder" and to attempted murder were we subsequently to recommend that the defence applied to those offences) the defendant must have been threatened with death or life threatening harm.

    [paragraph 7.3]

    Questions

    10.28     We ask whether consultees agree that:

    (1) duress should be a defence to "first degree murder";
    (2) if the answer to (1) is "yes", that it should be a partial but not a full defence;
    (3) if the answer to (2) is "yes", that it should reduce "first degree murder" to "second degree murder" rather than manslaughter

    10.29     We ask whether consultees agree that to be a defence to "first degree murder", the threat must be one of death or life-threatening harm.

    10.30     We invite views as to:

    (1) whether duress should be a defence to "second degree murder" and attempted murder; and
    (2) if so, whether should it be a full or a partial defence;
    (3) whether duress if successfully pleaded as a defence to "first degree murder" by a child or young person should result in more lenient treatment than it would for an adult.

    KILLING WITH CONSENT AND DIMINISHED RESPONSIBILITY

    Provisional proposal

    10.31     We provisionally propose that section 4 of the Homicide Act 1957 (killing pursuant to a suicide pact) should be repealed.

    [paragraph 8.2]

    Questions

    10.32     We ask whether consultees agree that:

    (1) killing in pursuance of a suicide pact should not in itself justify conviction of a lesser offence than "first degree murder" and that accordingly section 4 of the Homicide Act 1957 should be repealed;
    (2) killing in pursuance of a suicide pact or, if there is no suicide pact, killing the victim with his or her consent, should only result in conviction of a lesser offence than "first degree murder" if the defendant at the time of the killing was suffering from an abnormality of mental functioning which was a significant cause of his or her conduct in carrying out the killing;
    (3) if so, the lesser offence should be "second degree murder";
    (4) our proposed reformulation of the definition of the partial defence of diminished responsibility will cater adequately for the deserving cases that currently fall within section 4 of the Homicide Act 1957 and will exclude undeserving cases that currently fall within section 4.

    10.33     We invite views as to whether in cases where the defendant's diminished responsibility was a significant cause of their conduct in killing the victim and the victim consented to the killing, the presence of both diminished responsibility and consent should reduce the offence to manslaughter rather than "second degree murder"

    10.34     We invite views as to whether on an indictment for murder or manslaughter, it ought to be possible for the defendant to seek to show that he or she is guilty only of complicity in suicide (under section 2 of the Suicide Act 1961) if the conduct that killed the victim was meant by the defendant and the victim to end both of their lives.

    INFANTICIDE

    Provisional proposal

    10.35     We provisionally propose that the offence/defence of infanticide should be retained but that section 1(1) of the Infanticide Act should be amended:

    (1) to delete any reference to the "effect of lactation consequent upon the birth of the child", and
    (2) to substitute two years for 12 months (the relevant age of the child).

    [paragraph 9.1(2)(a)]

    Questions

    10.36     We ask whether consultees agree that:

    (1) the offence/defence of infanticide should be retained;
    (2) it should be reformed in the way that we propose.

    10.37     We invite views as to whether:

    (1) If the offence/defence of infanticide were to be abolished, infanticide cases should be subsumed within a reformed defence of diminished responsibility;
    (2) if a biological mother of a child of one year or less is convicted of murdering that child and at trial did not raise the defence of infanticide, the trial judge should be empowered to order a psychiatric report on the mother with a view to establishing whether or not there is evidence that at the time of the killing the requisite elements of a charge of infanticide were present;
    (3) the trial judge on receipt of the psychiatric report (assuming the report reveals evidence capable of supporting a verdict of infanticide) be able to postpone sentence and certify the conviction for appeal on the grounds of fresh evidence;
    (4) there are any other ways in addressing what the Court of Appeal in KaiWhitewind[2] identified as a problem, namely where the mother may have grounds for pleading the infanticide offence but denies having killed the child.

    Ý
    Ü   Þ

Note 1   Partial Defences to Murder (2004) Law Com No 290, para 1.13.    [Back]

Note 2   [2005] EWCA Crim 1092, [2005] 2 Cr App R 31.    [Back]


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