BAILII [Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]

The Law Commission


You are here: BAILII >> Databases >> The Law Commission >> Homicide: Murder, Manslaughter And Infanticide (Report) [2006] EWLC 304(2) (28 November 2006)
URL: http://www.bailii.org/ew/other/EWLC/2006/304(2).html
Cite as: [2006] EWLC 304(2)

[New search] [Context] [Printable version] [Help]


    PART 2
    STRUCTURE WITHIN THE LAW OF HOMICIDE
    A THREE-TIER STRUCTURE

    2.1      We recommend the adoption of a three-tier structure of general homicide offences to replace the current two-tier structure of 'murder' and 'manslaughter'. In descending order of seriousness, the offences should be 'first degree murder', 'second degree murder' and 'manslaughter'.

    2.2      There was strong and widespread support amongst our consultees for the division of general homicide offences into a three-tier structure. It was supported by the permanent judges at the Central Criminal Court; the Association of Chief Police Officers; the Police Federation; Victims' Voice; the Criminal Bar Association; the Law Society; the Criminal sub-Committee of the Council of HM Circuit Judges; the Justices' Clerks' Society; Justice; Refuge; Justice for Women; the Ministry of Defence; the Crown Prosecution Service; and the Mission Affairs Council of the Church of England, amongst many others.

    Why a further tier is necessary

    2.3      In Part 1 we explained that the law of murder has not developed systematically. Whether or not a killer falls to be labelled as guilty of murder or of manslaughter reflects historical accident more than it does rational principles. Past attempts to introduce greater order, fairness and clarity to the law through statutory reform and codification have failed because Parliament has been faced with more pressing business at the time. Twentieth century reforms, whilst valuable, have been piecemeal. Many of these reforms might have awaited more wide-ranging and integrated law reform were it not for the existence of the death penalty for murder until 1965.

    2.4      To bring greater order, fairness and clarity to the law of homicide, the scope of and distinctions between individual homicide offences must be made clearer and more intelligible, as well as being morally more defensible. Achieving this goal has not proved possible within a two-tier structure of general homicide offences. As we have seen, the constraining effect of the two-tier structure gives rise to a definition of murder that leaves it in one respect too broad and in another respect too narrow.

    2.5      The definition is too broad in so far as it encompasses killings committed through an intention to do harm the jury judges to be serious, even if the defendant ("D") had no intention to endanger life and did not imagine that his or her acts might lead to the victim's ("V") death.

    2.6      The definition is too narrow in that it excludes cases where D, without intending to kill or to cause serious injury, nonetheless realised that his or her conduct posed a serious risk of causing death and went ahead regardless.

    2.7      The over and under-inclusiveness of murder's current definition inevitably has the undesirable consequence of making it unduly difficult to devise a fair sentencing structure for both murder and manslaughter. We believe that the introduction of a further tier into the general law of homicide will do a great deal to resolve this problem.

    Approaches for reform that we reject
    Retaining a two–tier scheme but re-aligning murder and manslaughter

    2.8      A minority of our consultees preferred to retain the two-tier structure but to change the definitions of murder and manslaughter. However, we do not believe that the difficulties with the law of murder can be adequately resolved by adopting this approach.

    2.9      If murder is confined narrowly, either on policy grounds to restrict the scope of the mandatory sentence or in order to preserve its status as an offence of 'unique' gravity, manslaughter becomes far too broad and uncertain in scope. Manslaughter is itself a very serious crime and should not be devalued by being left as the residual, amorphous 'catch-all' homicide offence. If, by way of contrast, murder is defined more expansively, there is an ever-increasing risk of arbitrariness in whether an offender will fall on one side or the other of the line dividing murder from manslaughter.

    RESTRICTING MURDER TO INTENTIONAL KILLING

    2.10      A minority of consultees would have liked to see us recommend that murder be confined to intentional killing, with all other culpable homicides falling within manslaughter (or 'culpable homicide'). In our view, that proposal, whilst having the virtue of bringing great simplicity to the law, would entail far too broad a law of manslaughter. Manslaughter would then encompass killings brought about through the most extreme recklessness or an intention to endanger life, intentional killings perpetrated under provocation or diminished responsibility and spontaneous 'one-punch' killings or killings through serious neglect. No non-fatal offence against the person has such breadth. We do not believe that such breadth should be tolerated in a fatal offence against the person.

    EXPANDING MURDER TO INCLUDE ALL KILLINGS WHERE THERE WAS AN INTENTION TO CAUSE SOME HARM

    2.11      By way of contrast, some suggestions we received for an expanded law of murder would have made it difficult to explain the moral importance of distinguishing between murder and manslaughter. One consultee would have liked to see murder cover any killing where there was an intent to do harm of any kind, with manslaughter covering all killings through recklessness (however extreme) or negligence. On this view, if D pushes V intending to cause V minor harm and V, by misfortune, falls over, hits his head and dies, that is murder. However, if D sets fire to V's house when V is asleep, for the thrill of watching V run for his life, but V trips, falls unconscious and is consumed by the flames, that is manslaughter.

    2.12      On this view, the conceptual basis for the distinction (whether or not there was an intent to harm) between murder and manslaughter is clear enough. It is the intention to cause harm that differentiates between the two offences. Even so, we do not believe that there is sufficient moral significance to the distinction. It cannot sustain the view that murder is, in principle, the graver crime.

    DEFINING MURDER TO INCLUDE KILLING WHERE THE DEFENDANT IS 'RECKLESS' AS TO CAUSING DEATH

    2.13      Perhaps the best that can be made of the two-tier structure is the suggestion that murder should include not only those who intend to kill but also those who are reckless as to causing death. We have carefully considered this suggestion. However, we have rejected it because we do not believe that it will sustain a morally defensible boundary between murder and manslaughter.

    2.14      As we argued in Part 1,[1] one of the things wrong with the inclusion of killing through an intention to do serious harm within murder is that this makes murder both too broad and too narrow. It is too broad in that it currently covers death unforeseeably caused during a 'punch up' that gets out of hand through to death caused by prolonged use of excruciating torture. It is too narrow in that it does not cover the case of someone who intends to expose another person to a risk of death without as such intending them to suffer serious harm, as in the example where the killer plants a bomb and gives a warning that unexpectedly turns out to be insufficient.[2]

    2.15      If 'reckless' killing replaced killing through an intention to do serious harm as the fault element for murder, the law would remain both in some respects too broad and in some respects too narrow, but in different ways.

    2.16      The law would be too narrow because someone intending to cause injury, however serious, could not be found guilty of murder unless he or she was aware that the injury might lead to V's death. So, someone who subjected another to severe bodily torture, believing he or she was a long way from obtaining the information required from V because of V's toughness, could be convicted only of manslaughter if V unexpectedly died. The law would be too broad because reckless drivers or electricians who knew that their work had been sloppy would almost automatically become murderers if their conduct led to a death.

    2.17      We do not believe that it will prove possible to re-draw the line between murder and manslaughter to eliminate arbitrariness or anomaly without creating a middle tier of homicide. Broadly speaking, fault elements with a wide ambit, such as the intention to do 'serious' harm (or recklessness, in some form, as to death) are best attached to crimes with a discretionary sentence. In that way, the wide variety of circumstances in which the crimes come to be committed with that fault element can be reflected in the sentence. Accordingly, these fault elements are more suited to our recommended middle tier offence of second degree murder.[3]

    A single homicide offence

    2.18      By way of contrast, Sir Louis Blom-Cooper QC and Professor Terence Morris, whilst recognising that their proposals would not fall within our terms of reference, advocate a structure consisting of a single homicide offence. This offence would be committed, "on proof that the death was unlawful and that it was the outcome of the intrinsically unlawful conduct of the offender". The offences of murder and manslaughter would cease to exist.

    2.19      The murder label is one of the highest moral and social significance. It is widely used not only in England and Wales but also in many other jurisdictions across the world. It is central to the public perception and evaluation of the seriousness of homicide. We believe that it would be wrong to abandon it and that for very similar reasons the manslaughter label should also continue to be used.

    2.20      Sir Louis Blom-Cooper QC and Professor Morris' proposal would have the virtue of introducing simplicity into the law, and there would be few contested charges. However, the proposed offence is excessively broad. It is at odds with basic principles of fairness observed in the way that other serious offences against the person are defined in English law and in almost all other jurisdictions world-wide.

    2.21      The proposed offence has no fault requirement of any kind. Indeed, Sir Louis Blom-Cooper QC and Professor Morris suggest that, "it is just as logical to exclude the mental element from criminal responsibility, as is done in crimes of strict liability". So, on this approach, the surgeon who makes an error that leads to the death of the patient would be guilty of the same offence as the psychopathic, serial or contract killer. It is hard to see why this unitary approach to homicide is warranted when the law's approach to other species of wrong (non-fatal offences against the person, property crimes and driving offences) is to divide them up. The division between offences, within a hierarchical structure, makes it possible to provide different sentencing possibilities for each crime. This provides some important guidance to judges on sentencing that they would lack where a single offence carries a maximum sentence of life imprisonment.

    2.22      Further, we do not believe that judges would welcome the proposal. They would have to shoulder the entire burden of determining the gravity of the offence through post-trial sentencing procedures. Key issues, such as the intent with which the offender acted, would cease to be matters to be tested before the jury. We do not believe that such an approach would inspire confidence in the criminal law's integrity.

    The approach that we recommend
    A three-tier structure

    2.23      There should be a three-tier structure to the law of homicide, with the new offence forming the middle tier of the three. In deciding this issue, there is a need to balance competing considerations.

    2.24      On the one hand, there is the need to ensure that the law is structured in a fair way which accords with common sense as well as legal principle. Important differences between kinds and degrees of fault in killing must be accommodated within any revised structure.

    2.25      On the other hand, there is a need to ensure that the law does not become so complex that it cannot be applied by juries, especially when they are faced with a number of defendants running different defences (perhaps in the alternative). There must be clarity and simplicity in the distinctions drawn between offences. A lack of clarity, or excessive reliance on fine-grained distinctions, would mean that the prosecution might feel compelled in some cases to accept a plea of guilty to a lesser offence even when the evidence suggests that D is guilty of a more serious offence.

    2.26      Having consulted widely with experienced legal practitioners, amongst others, we are confident that a three-tier structure strikes the right balance. Most significantly, prosecutors, defence advocates and judges have not objected to the three-tier structure on the grounds that it would prove to be too complex. There is already a tiered structure in place for non-fatal offences that has for many years been understood in much the same way that we anticipate our scheme for fatal offences would be understood.[4] Although the content of the non-fatal offences has been frequently criticised, the three-tier statutory structure in which they are situated has not been the subject of criticism.

    2.27      Our confidence that a three-tier structure would be workable is bolstered by the existence of an already developed practice amongst judges of providing written directions to juries in murder cases. These directions commonly explain how the facts relate to the law of murder in simple terms and give an indication of the order in which the jury should address the issues arising at trial. It has been shown that written directions, as opposed to purely oral ones, are more frequently understood, remembered and followed correctly.[5]

    2.28      As we have indicated, we are recommending that the new offence forms the middle tier of the three-tier structure. The most pressing need for reform is at the border between murder and manslaughter, at the 'bottom end' of murder and at the 'top end' of manslaughter. As we argued in Part 1, it is here that the limits of the two-tier structure have, during the last 40 years, resulted in a continual shifting of the borderline. This has led to some improvements but also to uncertainty and a lack of clarity. A new middle tier offence should put an end to the perceived need constantly to tinker with the definitions of murder and manslaughter through judicial law-making. The substance of the new and revised offences is explained further below.

    2.29      Far from over-complicating the law, moving to a three-tier structure will greatly improve the prospects for a sentencing structure for homicide that the public can readily understand. As the Chairman of the Sentencing Advisory Panel has said:

    [T]he principled development of sentencing guidelines requires the avoidance of overly broad offences. Such offences fail to make explicit the moral distinctions which should be reflected in the law, and they lump together very different forms of conduct under a single, misleading offence label. Sentencing coherence in homicide, it seems, depends on offences being arranged hierarchically, and with gradations within those offences being clearly based upon the different degrees of offender culpability for causing death.[6]

    2.30      Some consultees thought that our provisional proposals were (albeit understandably, given our terms of reference) unduly influenced by our obligation to assume retention of the mandatory life sentence for murder. They thought that a very different proposed structure might have emerged had the retention of the mandatory sentence been one of the issues left to us to consider along with the structure of the law.

    2.31      So far as the structure of offences is concerned, we disagree with this hypothesis. There is a four-tier structure to the Home Office's proposed reforms of non-fatal offences of violence even though none of the offences carries a mandatory sentence.[7] Even if there were minimum or maximum rather than mandatory sentences for homicide offences, we would still recommend that such offences should be tiered according to their seriousness.

    2.32      Under our recommendations, there would continue to be specific offences of homicide, such as infanticide, which would buttress the general homicide offences.[8]

    2.33      We recommend the adoption of a three-tier structure of general homicide offences to replace the current two-tier structure of 'murder' and 'manslaughter'.

    An alternative three-tier scheme including an 'aggravated' offence of murder

    2.34      A minority of the consultees who favoured a three-tier law of homicide favoured creating a tier above what is currently regarded as murder, namely a form of 'aggravated' murder. Such a higher tier is to be found, in different forms, in many American state codes, in France and in Germany. One consultee suggested that this higher category could include those who committed murder on more than one occasion and those who use torture or starvation or otherwise kill cruelly. Two other consultees suggested that aggravated murder could cover those whose killing causes fear amongst a group within society because members of the group are led to believe that they could be the next target. This is liable to happen when a killing has, for example, a racist motivation.

    2.35      Whilst there could be no doubt that these are all aggravated forms of murder, we regard the aggravating features as best reflected through an uncompromising approach to the length of the minimum custodial sentence imposed for murder. This is the law's approach at present.[9] We explain in paragraphs 2.166 to 2.169 below our belief that the difficulty in settling the precise scope of the 'aggravated' murder category would cause as many problems as the creation of the category solves. We do not favour a three-tier structure that includes an offence of 'aggravated' murder.

    OFFENCE LABELS

    2.36      In the CP, we employed (in descending order of seriousness), the terms 'first degree murder', 'second degree murder' and 'manslaughter'. The idea of distinguishing between first and second degree is not unprecedented. It is currently used in American law, although we are not using it in the same way as it is used in the various criminal state codes in the United States.

    2.37      There was, understandably, no unanimity on the question of the right name for different offences. Having said that, a clear majority supported the use of the terms first degree murder and second degree murder to express the distinction between the two most serious general offences of homicide. This was supported, for example, by the permanent judges at the Central Criminal Court; Victims' Voice; the Association of Chief Police Officers; the Criminal sub-Committee of the Council of HM Circuit Judges; the Police Federation; the Justices' Clerks' Society; the Criminal Bar Association; the London Criminal Courts' Solicitors' Association; Rights of Women; the Ministry of Defence; and the Crown Prosecution Service.

    2.38      The use of the term second degree murder to describe the verdict the jury must reach when a plea of provocation or diminished responsibility is successful as a defence to first degree murder was strongly supported by groups representing victims' families. We believe that both terms would be acceptable, and indeed are already familiar, to the general public.

    2.39      Some consultees preferred different labels. The Higher Court Judges' Homicide Working Party suggested a division (in descending order of seriousness) between murder, 'grave homicide' and manslaughter. The organisation Justice suggested a division between murder, 'culpable homicide'[10] and manslaughter. Nicola Padfield suggested a division between murder, manslaughter and 'unlawful killing'.

    2.40      What unites these different viewpoints is a judgement that, even after (or perhaps because of) more than 500 years of usage, the terms 'murder' and 'manslaughter' still have a role to play as terms distinguishing between offences. The same or broadly analogous terms (whatever their substantive content) are in use in almost all English-speaking jurisdictions.[11]

    2.41      Of those who objected to the terminology of first and second degree murder, one consultee thought that the drawing of a distinction between first and second degree murder was a fundamentally flawed exercise because it undermined the claim that murder was a 'uniquely' grave crime. The CP's use of the term 'unique' to describe murder as a crime was liable to mislead in this respect. We do not regard the fact that murder is an especially heinous offence as requiring law reformers to work with a single offence, if it is to have the term 'murder' in it. No such constraint has bound those who have reformed American state codes, where the distinction between first and second degree murder is commonplace. Adjectives such as 'unique', or 'especially serious', when applied to murder, should be understood as doing no more than indicating the need for any offence or offences of murder to be clearly distinct, in point of gravity, from lesser homicide offences further down the ladder that do not have the murder label.

    2.42      We recommend the retention of the terms 'murder' and 'manslaughter' to describe at least two of the three tiers in the new structure for the law of homicide.

    2.43      We also recommend the division of murder into two tiers, called 'first degree murder' and 'second degree murder'. Second degree murder should be the middle tier offence between first degree murder and manslaughter. Second degree murder will encompass some killings currently regarded as murder and some killings currently regarded as manslaughter.

    2.44      We acknowledge that the labels that ought to be attached to offences is not just a question for legal experts but is something on which anyone may have a well-informed and persuasive opinion. Accordingly, although we have set out our recommendations, it is a matter that could be further addressed in the next stage of the review.

    HOW SHARPLY DO OFFENCES NEED TO BE DISTINGUISHED?

    2.45      Naturally, consultees' views on what the offences should be called often depended on what was to be included within each offence. It is to this matter that we will turn to in the next section. However, before doing so, it is important to place emphasis on a point easily forgotten when deciding which kinds of homicide should be included in each tier.

    2.46      There will inevitably be individual instances of homicide at the top end (in terms of seriousness) of one tier that may in a broader sense be thought of as being as or more serious than individual instances of homicide at the bottom end of the tier above. This will be true of any sophisticated system for grading offences even before one comes to consider the applicability of defences to offences within each tier. The fact that one can think of such instances does not necessarily undermine the case for drawing the lines between the tiers where they have been drawn.

    2.47      It may, for example, be possible to think of a case of gross negligence manslaughter where the negligence was so gross that the killing could justifiably be regarded as equally as bad as a case of second degree murder, even though our criteria for satisfying the fault elements of the latter crime have not been met.[12] This does not necessarily mean that there has been any mistake in the way in which the tiers of homicide have been divided. A ladder of offence seriousness is defensible so long as, by and large, the cases that fall within a particular tier are, other things being equal, more serious than the cases that, by and large, fall within the tier below.[13]

    2.48      This point is illustrated by the way in which the non-fatal offences are currently broadly divided, according to a ladder principle of offence seriousness.[14] Generally, 'malicious wounding with intent to do grievous bodily harm'[15] can be regarded as more serious than 'maliciously wounding or inflicting grievous bodily harm'.[16] The way that these offences are distinguished (a lesser fault element sufficing for the latter offence) ensures that, by and large, morally less heinous cases of doing injury will fall only within that latter offence where no specific intent to do grievous bodily harm need be proved.[17]

    2.49      That does not exclude the possibility that some individual instances of maliciously inflicting grievous bodily harm at the top end of that offence may be more serious than some individual instances of wounding with intent to do grievous bodily harm. An example might be the infliction on V of severe and permanent injury where D lacked the specific intent to do such an injury because of intoxication.

    FIRST DEGREE MURDER

    2.50      We recommend that first degree murder should encompass:

    (1) intentional killings, and
    (2) killings with the intent to do serious injury where the killer was aware that his or her conduct involved a serious risk of causing death.
    The provisional proposal in the CP

    2.51      In the CP, our provisional proposal was that first degree murder should be restricted to cases in which there was an intentional killing.

    2.52      At present, murder includes not only intentional killing but also killing through an intention to do serious harm. We explained in Part 1[18] that this can lead to some killers who did not intend to kill being inappropriately labelled as murderers rather than guilty of a lesser homicide offence. This can happen when the offender neither intended to kill nor thought that the harm he or she was intentionally inflicting involved any risk of causing death (although the harm intended was adjudged serious by the jury).

    Responses to the provisional proposal

    2.53      There was a good deal of support for our proposal. It was supported by the resident judges of the Central Criminal Court; the Criminal sub-committee of the Council of HM Circuit Judges; Victims' Voice; Justice; the Crown Prosecution Service; the Law Society; the teachers of criminal law at the London School of Economics and Political Science; and the Criminal Bar Association, amongst others.

    2.54      There was also opposition to the provisional proposal. The Higher Court Judges' Homicide Working Party thought the restriction made first degree murder too narrow, as did Justice for Women, the Police Superintendents' Association, and the Association of Chief Police Officers. Some groups who supported our provisional proposal, because they could see the logic of it, would also almost certainly be content with a broader definition of 'first degree murder' so long as it did not involve undue complexity. Some consultees supported the provisional proposal only because it entailed a severe restriction on the scope of the mandatory life sentence (that sentence being what they really disliked) and not because they believed there was intrinsic merit in narrowing the scope of murder to intentional killings.

    The impact of the responses on our thinking: a wider definition of first degree murder

    2.55      In the light of these responses, we have sought to create a greater measure of consensus over the scope of first degree murder. We have sought to do so by extending its fault element beyond the provisionally proposed limit of intentional killing whilst retaining the robust distinction between the three tiers within the law of homicide that proved popular with consultees. We believe that the suggestion of the Higher Court Judges' Homicide Working Party has provided us with a means of achieving this.

    2.56      The Higher Court Judges' Homicide Working Party thought that first degree murder should be extended beyond cases of intentional killing so as to cover homicides in which the offender acted on an intention to do serious injury and was recklessly indifferent as to causing death. By way of contrast, in the CP, we took the view that such cases, falling just short of intentional killing, could be adequately dealt with through a severe sentence for second degree murder. We have been persuaded that the Higher Court Judges' proposed extension of first degree murder is the right approach. For reasons explained in paragraphs 2.105 to 2.111 below, however, we will be substituting for the phrase 'recklessly indifferent as to causing death' the words, 'aware that his or her conduct involved a serious risk of causing death.'

    2.57      On a matter such as the fault element in murder, it is important to ensure that our proposals reflect the broadest possible consensus of opinion. We believe that the suggestion of the Higher Court Judges' Homicide Working Party (as amended) will gain the broadest measure of support whilst maintaining clarity within the three-tier structure for the law. Although the suggestion goes beyond cases of intentional killing, it nonetheless excludes those cases of intentional infliction of harm (causing death) that should fall within second degree murder or manslaughter rather than within first degree murder.

    The advantages of our recommendation compared to our provisional proposal

    2.58      The advantages of the fault element that we are recommending for first degree murder over the provisional proposal that first degree murder should be restricted to intentional killing are as follows.

    2.59      First, we are mindful of the fact that, after extensive thought and consultation, a similar fault element to the one we are now recommending was proposed for the law of murder in the Draft Criminal Code of 1989. With adjustments made to the Code team's formulation to make it fit with the three-tier structure for homicide offences that we are now recommending, we believe that it would be right to continue to endorse the broad thrust of the formulation in the Draft Criminal Code.[19]

    2.60      Secondly, we accept the arguments that some kinds of killings that were not intended are so especially heinous that they should be regarded as, morally speaking, virtually indistinguishable from intentional killings (putting aside questions of justification and excuse). Consultees such as Professor Wilson, for example, argued that, 'some reckless killings attract far more revulsion and indignation than some intentional killings'.[20] The degree of emotional agitation a killing generates may not in itself be a good or reliable measure of how serious that killing really is but we have tried to accommodate this 'moral equivalence' argument in the revised structure. We have sought to do this by including within first degree murder, alongside intentional killing, killing through an intention do serious harm aware that one's conduct poses a serious risk of causing death.[21] The argument for doing so was well put over 120 years ago by judge and jurist Sir James Stephen, when he said:

    [I]s there anything to choose morally between the man who violently stabs another in the chest with the definite intention of killing him, and the man who stabs another in the chest with no definite intention at all as to his victim's life or death, but with a feeling of indifference whether he lives or dies? It seems to me that there is nothing to choose between the two men, and that cases may be put in which reckless indifference to the fate of a person intentionally subjected to deadly injury is, if possible, morally worse than an actual intent to kill.[22]

    2.61      To continue with Stephen's example, the revised definition should give reassurance that when D stabs (or shoots) another in the head or chest, a charge of first degree murder will be perfectly appropriate. In such cases, it can usually be readily found that D intended to do serious injury and was aware of a serious risk of causing death, especially, but not solely, when the stabbing (or shooting) is repeated. For the purposes of defining murder, we do not believe that people would see any significant moral difference between someone who repeatedly shoots or stabs another in the chest intending to kill and someone who does these self-same actions both intending to cause serious injury and aware of a serious risk of causing death.

    2.62      Once one has stepped beyond intentional killings within the first degree murder category, one must continue to respect the need for 'moral equivalence' between fault elements within that category. For that reason, we have not gone further and recommended making reckless killing in some form (that is, without a further fault element based on the intention to do serious injury) a variety of first degree murder. To do that would be to exchange one kind of over-inclusiveness in the current law for a different kind, as indicated in paragraphs 2.15 to 2.16 above. In answer to the objection that our recommended fault elements for murder will make the crime too difficult to prove, we point to the recent observations of Lord Bingham:

    [T]here is no reason to doubt the common sense which tribunals of fact bring to their task. In a contested case based on intention, the defendant rarely admits intending the injurious result in question, but the tribunal of fact will readily infer such an intention, in a proper case, from all the circumstances and probabilities and evidence of what the defendant did and said at the time.[23]
    How our recommendation would be an improvement on the existing law

    2.63      The fault element we are recommending for first degree murder improves on murder's existing fault element in several ways.

    2.64      First, as further recommendations which we set out below make clear,[24] our recommendation for what should constitute first degree murder forms part of the creation of a proper 'ladder' of homicide offences, in order of seriousness, which the present law fails to provide. The recommendation would do this by eliminating the legal anomalies identified in Part 1 which result in the definition of murder being in some respects too narrow and in some respects too broad.

    2.65      Secondly, implementation of the recommendation for what should constitute first degree murder would bring the law somewhat closer to what Parliament (mistakenly, as it turned out) thought the law was when it decided against providing a comprehensive definition of the fault element for murder in the Homicide Act 1957.[25]

    2.66      Thirdly, under our recommendations, if the jury found that one or other of the fault elements for first degree murder ((1)) or (2) in paragraph 2.50) was present and convicted of murder, the judge would no longer have to go on to decide for sentencing purposes which one of those fault elements the jury had found proven. This seemingly technical but important point needs addressing in more detail.

    2.67      Under the present law, Parliament has acknowledged that there is potentially a large gap in point of culpability within murder, namely between an intention to kill and an intention to do serious harm (where there was no awareness of a risk of death). In consequence, Parliament now requires a judge to decide which of these intentions D acted on and to take that into account when determining the length of the initial period in custody of the mandatory life sentence.[26] In one way, that is a commendable attempt to see that justice is done. It is, however, open to the objection that it requires the judge to trespass on what should be a question for the jury: the question of D's intent (whether there was an intention to kill or only an intention to do serious harm).[27]

    2.68      Under our recommendations, there would no longer be such a large gap in the degree of culpability involved, as between the alternative fault elements in first degree murder ((1) and (2) in paragraph 2.50 above). This is because a conviction for murder would require a finding that there was at least an intention to do serious injury in the awareness that there was a serious risk of causing death. The two alternative fault elements for first degree murder should be regarded as morally equivalent. Consequently, there would be no need for the judge, when sentencing, to determine which fault element it was that D acted on in killing.

    2.69      We recommend that first degree murder should encompass:

    (1) intentional killings, and
    (2) killings with the intent to cause serious injury where the killer was aware that his or her conduct involved a serious risk of causing death.
    SECOND DEGREE MURDER

    2.70      We recommend that second degree murder should encompass:

    (1) killings intended to cause serious injury; or
    (2) killings intended to cause injury or fear or risk of injury where the killer was aware that his or her conduct involved a serious risk of causing death; or
    (3) killings intended to kill or to cause serious injury where the killer was aware that his or her conduct involved a serious risk of causing death but successfully pleads provocation, diminished responsibility or that he or she killed pursuant to a suicide pact.

    2.71      We also recommend that second degree murder should attract a maximum sentence of life imprisonment, with guidelines issued on appropriate periods in custody for different kinds of killing falling within second degree murder (see Appendix A).

    The different functions that second degree murder would perform

    2.72      Second degree murder would be a new offence, constituting a second or middle tier in the structure of general homicide offences. As an offence, second degree murder would perform three functions.

    2.73      First, it would capture some cases that, to date, have been treated as plain murder, namely cases in which someone killed when intending to do an injury that the jury regards as serious but which D had no idea might cause death. This could be referred to as the new offence's 'mitigating' role.

    2.74      Secondly, the new offence would capture some cases that, to date, have been treated as only manslaughter, namely cases in which someone has killed intending to cause harm or fear or risk of harm and was aware of a serious risk of causing death. This could be referred to as the new offence's 'aggravating' role.

    2.75      Second degree murder would perform a third function. It would capture those who successfully raise a partial defence and who are currently convicted of manslaughter. This could be referred to as the new offence's 'labelling' role.

    Why killing through an intention to do serious injury (but without awareness that there was a risk of causing death) should be treated as second degree murder

    2.76      The provisional proposal to treat as second degree murder killing done through an intention to cause serious injury received a very large measure of support from consultees. It was supported by the permanent judges at the Central Criminal Court; the criminal Sub-Committee of the Council of HM Circuit Judges; the Criminal Bar Association; the Law Society; the London Criminal Courts Solicitors' Association; the Police Federation; Liberty; the Ministry of Defence; Southall Black Sisters; Victims' Voice; and the Crown Prosecution Service.

    2.77      Some of those who opposed treating as second degree murder killing through an intention to do serious harm, such as the Association of Chief Police Officers, thought that it should be treated as first degree murder. Our revised and expanded definition of first degree murder now covers cases in which an intention to do serious injury was accompanied by an awareness of a serious risk of causing death.

    2.78      Conversely, other consultees, such as Justice, Dr Hoyano and the Law and Criminology post-graduate students at Cambridge University, thought that killing through an intention to do no more than serious harm should be treated as either manslaughter or as a middle tier offence without the 'murder' label attached to it. We accept that this is a controversial matter on which judgements may understandably lead people in different directions.

    2.79      The main objection to placing killings where there was an intention to do serious harm within (second degree) murder is that this would be a breach of the so-called 'correspondence' principle.[28] This is the principle that the fault element must correspond (relate) to each and every element of the prohibited conduct. In homicide cases (and especially in murder cases), it is said to mean that, whatever D's actual intention, he or she must have been at least aware of a risk of causing death. In our view, to have acted on an intention to do serious harm, and thereby killed, is already to have shown such a high degree of culpability that liability for second degree murder is justified. Nonetheless, it is a mistake to suppose that the correspondence principle cannot be satisfied in such cases.

    2.80      Where someone kills having intended to do serious harm, in all but the most exceptional instances such a person will have made V's death a foreseeable consequence of his or her conduct. This provides sufficient connection or 'correspondence' in point of fault between what D intended and the killing, whether or not there was actual awareness that death might be caused.[29]

    2.81      We recommend that killing through an intention to cause serious injury should be placed within the category of second degree murder, one tier below first degree murder.

    The meaning of 'injury'

    2.82      In both fatal and non-fatal offences against the person, the law has traditionally employed the term 'bodily harm' to describe the kind of harm that must be intended. In recent years, the courts have extended the term 'bodily harm' to include a recognised psychiatric disorder or illness.[30] The Court of Appeal justified this, saying:

    The first question … is whether the inclusion of the word "bodily" in the phrase "actual bodily harm" limits harm to harm to the skin, flesh and bones of the victim …. The body of the victim includes all parts of the body, including his organs, his nervous system and his brain. Bodily injury therefore may include injury to any of those parts of his body responsible for his mental and other faculties … it does not include mere emotions such as fear or distress or panic nor does it include, as such, states of mind that are not themselves evidence of some identifiable clinical condition.[31]

    2.83      Significantly the Court of Appeal turns to the word 'injury' to help explain the width of the older term 'bodily harm'. A focus on bodily harm may imply a firm distinction between body and mind. This distinction cannot stand up to philosophical or legal analysis.

    2.84      However, the continued use of the term 'harm', has meant that there has been a further appeal to stretch the meaning of 'bodily harm'. There has been a claim that it should include severe or persisting emotional states, such as a severely depressed state of mind that does not amount to a recognised psychiatric illness or injury. Although the courts rejected this claim,[32] we still think that the word 'injury' is more certain in scope than 'bodily harm' and should put an end to such speculative appeals.

    2.85      We recommend that the term 'injury' should be used instead of the words 'bodily harm'.

    Should 'serious' injury be defined?

    2.86      An important question for us in the CP was whether consultees thought that 'serious' harm (our preferred term is now serious 'injury') should be defined by law. At present, when someone is charged with murder on the basis that they killed through an intention to do 'serious harm', the jury is entrusted with the decision whether the harm intended was indeed serious.[33] By way of contrast with the position in some other jurisdictions,[34] 'serious' injury or harm has no legal definition. So, in law, D cannot avoid conviction for murder by showing that he had no idea that the harm intentionally inflicted would lead to death or that it would be regarded by a jury as serious in itself. At best, such a claim is simply a piece of evidence that the harm was not serious.

    2.87      We will now consider two different answers to this question.

    APPROACH 1: DEFINING 'SERIOUS' INJURY

    2.88      The first approach involves providing a legal definition of 'serious' harm or injury. The aim is to introduce a greater degree of certainty and predictability by giving the jury something by which to guide their thinking on the matter. We asked consultees whether they thought the following definition of 'serious' harm or injury would achieve that aim:

    [H]arm 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.[35]

    2.89      We are rejecting this approach. The opinions of consultees were divided on its merits. Tellingly, many of those who endorsed it did so only in a qualified way, because they found some fault with the definition we put forward. The Law Society, along with Professor Taylor, thought that the definition did not introduce much greater clarity in so far as it stretched beyond life-endangering harm. Other consultees, such as Professor Leigh, Dr Jones and Dr Hiscock did not think that there should be any reference to impairment of mental functioning.

    2.90      Those who opposed this approach thought it might introduce a new set of uncertainties. The Criminal Bar Association objected to what they thought would be the introduction of a difficult hypothetical question: was the harm intended, as opposed to that inflicted, life-threatening? Perhaps that objection could be met if what was required was that the harm done be judged by the jury to have met the definitional criteria, at the time that it was done, whether or not D intended a harm of just that kind.

    2.91      However, the Criminal Bar Association and Mr Justice Calvert-Smith (a former Director of Public Prosecutions), also thought that a weakness of the definitional approach to 'serious' harm or injury was that it would sometimes, perhaps often, require expert testimony to resolve questions such as whether an injury was by its nature 'life-threatening'. Questions would also be bound to arise concerning whether an injury can be said to be 'life-threatening' when the threat comes from the difficulty V was always likely to experience in obtaining treatment rather than from the nature of the injury in itself. Expert testimony bearing on such questions may also be required to resolve them.

    2.92      All in all, opponents of this approach thought that it would add to the length, complexity and cost of trials without (in their view) adequate justification. We agree. Given that there is an alternative approach, we do not regard this approach as having sufficient merit to warrant taking it forward, even though we recognise that something like it has been made to work satisfactorily in some other jurisdictions.[36]

    APPROACH 2: NOT DEFINING 'SERIOUS' INJURY

    2.93      The alternative approach is to leave 'serious' harm or injury undefined, and trust that (a) the jury will not bring in a murder verdict unless the harm intended was very serious indeed, and (b) the judge will reflect the degree of harm actually intended in the sentence passed. This is to be our approach to cases of second degree murder.

    2.94      We are recommending that second degree murder should attract a discretionary maximum life sentence. This means that, where appropriate, judges can take account of the kind and degree of injury actually intended in determining the sentence that they pass.[37] That is not possible, at present, because the life sentence is mandatory when the jury has brought in a verdict of murder on the basis that there was an intention to do harm they (the jury) regard as serious.[38] The discretion the judge would have, in sentencing in cases of second degree murder, means that it is not necessary to complicate the law further by seeking to fix a definition of 'serious' injury.

    Why killing through an intention to cause injury or fear or risk of injury while aware of a serious risk of causing death should be second degree murder
    Introduction

    2.95      In the CP we provisionally proposed that within second degree murder, alongside killing through the intention to do serious injury, there should be killing by 'reckless indifference'.

    2.96      Under the present law, killing through reckless conduct, however culpable, can be treated as nothing more serious than manslaughter. In Part 1,[39] we said that we believe that this constitutes a significant anomaly or weakness within the law. Some reckless killers ought to convicted of second degree murder and not simply of manslaughter.

    2.97      Under our recommendations, if someone foresaw death as virtually certain to occur if he or she acted as intended, and death did thereby occur, he or she could be convicted of first degree murder.[40] Under the current law, if someone sees the causing of death as a serious risk from their conduct (even if it is not considered to be virtually certain to result), they can only be convicted of manslaughter. However, in certain circumstances it ought to be possible to convict them of the middle tier offence, second degree murder and not merely of manslaughter.

    2.98      The example of the bomber who gives an inadequate warning is a case that ought to fall within the ambit of the middle tier offence.[41] Some other examples (based on real cases) which at present commonly fall within manslaughter but ought to be candidates for treatment as second degree murder are:

    (1) D sets fire to V's house at night, knowing that V is asleep inside. His intention is to give the occupants a severe fright. V is killed trying to escape.
    (2) D burgles the house of an elderly man, tying him up securely and leaving him, although she appreciates that the house is isolated and that the man has few visitors. V, unable to escape his bonds or summon help, dies.
    (3) D injects V with an illegal drug that D realises may contain impurities dangerous to life. V goes into a coma, and consequently dies.
    (4) D intentionally accelerates his car towards a police officer standing in the road at a roadblock. His intention is to frighten the officer by swerving the car out of the way only at the last possible second D's attempt to swerve out of the way is unsuccessful and the officer is killed.
    The provisional proposal in the CP

    2.99      To this end, in the CP we sought to distinguish between simple recklessness – being aware that there is an unjustified risk of killing but going ahead anyway – and 'reckless indifference'. Killing through simple recklessness was to be manslaughter. That would remain the case under our recommendations.[42] By contrast, we proposed that reckless indifference was to be second degree murder because it involved, over and above an appreciation that there was a risk of causing death, an attitude towards that risk along the lines of, 'if death occurs so be it', or 'if death occurs, so what'? The jury would, in effect, be asked whether they were satisfied that D would still have gone ahead even if he or she had thought death to be virtually certain to occur.

    Responses to the provisional proposal

    2.100      There was widespread agreement amongst consultees that killing through reckless indifference in some form should fall within second degree murder. This was assented to by, amongst others, the Permanent Judges at the Central Criminal Court; the Criminal Sub-Committee of the Council of HM Circuit Judges; the Criminal Bar Association; the Crown Prosecution Service; the Law Society; the Association of Chief Police Officers; the Police Federation; Liberty; Justice; the Ministry of Defence; Refuge; Southall Black Sisters; Victims' Voice; and a number of academics and individual judges in the higher courts.

    2.101      At present, in these kinds of cases, the prosecution frequently feels constrained to accept a plea of guilty to manslaughter because they do not believe they can prove that there was an intention to do serious injury. If that happens, the sentence D receives may well be considerably shorter than it would be if D was convicted of a 'middle tier' offence between murder and manslaughter. The creation of a middle tier offence may, thus, make it possible to take a tougher line in sentencing in such cases, even when D pleads guilty to that middle tier offence. We believe that in many such cases taking that tougher line would be fully warranted.

    2.102      What troubled some consultees about our provisional proposal was not the principle that at least some reckless killers should be guilty of second degree murder. It was the nature of the term for the fault element used as the means to achieve that goal: 'reckless indifference'. Academic critics and some judges regarded the term as unacceptably vague and liable to create a very blurred line between second degree murder and manslaughter.

    2.103      Professor Wilson, an acknowledged authority on this area of the law, said that:

    [T]he view taken by successive reform bodies is that 'wicked recklessness' is too imprecise a concept to sustain a differentiated law of homicide. I do not think that the concept of 'reckless indifference', without more, is any better placed … Whether someone has committed murder is not a matter of simple moral judgment. It is a matter of satisfying an offence definition with a sufficiently high degree of specificity to justify the hugely symbolic label and the penalty range.[43]

    2.104      In a similar vein, the Editor of the Criminal Law Review suggested that:

    [T]he case for including 'reckless indifference' looks under-argued. The Paper distinguishes reckless indifference from 'reckless stupidity' by reference to the defendant's attitude to foreseen consequences of the act that caused death, but whether this philosophical distinction can generate a workable test for a lay jury is problematic.[44]
    A new formulation

    2.105      We agree with these criticisms that have been levelled at 'reckless indifference'. It now seems to us undesirable that, save in exceptional cases, a term used to define a fault element in murder should need significant further explanation from the trial judge before its basic meaning becomes clear to the jury. In addition, we are concerned about the likelihood that the introduction of a term hitherto never formally adopted for use in the definition of murder – 'indifference' – would lead to a series of challenges and questions about its meaning in the Appeal Courts. There would then be a risk of, as yet, unforeseen problems in connection with its definition, thereby generating further appeals and uncertainty.

    2.106      Consequently, we have tried to express the essence of reckless indifference in a form that is on its face more readily comprehensible to judges and juries alike. We have tried to use uncontentious, clear language with which the courts will already be very familiar, reducing the likelihood that a series of appeals will be needed to settle its meaning.

    2.107      As we have said,[45] we recommend replacement of the reckless indifference formula with a formula in which what matters is whether D intended to cause injury or fear or risk of injury and was aware that his or her conduct involved a serious risk of causing death.[46]

    ADVANTAGES OF THE NEW FORMULA

    2.108      We believe that the recommended formula will make the place of second degree murder within the overall structure, or 'ladder', of offences much clearer than 'reckless indifference' would do. We also believe that the recommended formula will keep faith with the viewpoint of those who endorsed the inclusion of reckless indifference within second degree murder. We anticipate that the recommended formula will produce results at variance with the reckless indifference formula only in very rare or unusual kinds of case. In such cases, the offender can expect to receive a long prison sentence for manslaughter.

    2.109      As important as what the recommended formula includes is what it excludes. It will not be sufficient for conviction of second degree murder simply that the killer was aware that his or her conduct involved a serious risk of causing death (recklessness as to causing death). If the killer was aware that his or her conduct involved a risk of death, he or she stands to be convicted only of manslaughter.[47] To be convicted of second degree murder, in addition to showing that the offender had this awareness, it must also be shown that the killer intended to cause injury or fear or risk of injury.[48]

    2.110      We regard this extra element as of great importance in preventing a large and uncertain overlap developing between second degree murder and gross negligence manslaughter. Many of those currently convicted of gross negligence manslaughter will, in fact, have been aware that their conduct posed a risk of causing death. They will, however, have foolishly acted in the belief that the chance of the harm materialising was remote. That would be true, for example, of an electrician who is mistakenly confident that he or she can cut corners on health and safety's 'bureaucratic requirements' (as he or she sees them) without posing undue risks to customers. We do not believe that such an offender should necessarily be guilty of second degree murder if he or she kills. The electrician will almost certainly be guilty of, and can be punished severely for, manslaughter, if the cost-cutting measures lead to someone's death. That will usually be punishment enough.

    2.111      The extra element ensures that those who kill through simple carelessness or disregard, but without anything that could (speaking very loosely) be called a hostile or aggressive act directed at someone, should be guilty only of manslaughter.[49] The degree of their carelessness or disregard can be reflected in the sentence received upon conviction for manslaughter. In the electrician example just given, the electrician does not intend to cause injury or fear or risk of injury. So, in spite of his or her awareness of the possibly fatal consequences of corner-cutting, he or she should not be convicted of second degree murder if death results.

    RESURRECTING THE 'FELONY-MURDER' APPROACH?

    2.112      We consulted on an alternative 'extra element' to limit the scope of liability for second degree murder. This would have involved the restriction of killing by reckless indifference to cases in which the reckless indifference to death was shown in the course of the commission of a serious offence. In effect, this would constitute a resurrection of the 'felony-murder' rule by virtue of which causing death in the course of committing a range of criminal offences was murder whether or not D realised that someone might be killed. Only two consultees supported this approach.

    2.113      Most consultees rejected it on the basis that the reasons why Parliament abolished the felony-murder rule 1957 remain as compelling now as they were then. The list of offences that would count (that is, the offences in the course of committing which it would be murder to kill by reckless indifference) would inevitably be arbitrary in scope. In some cases, it would be difficult to distinguish the offence in the course of which the killing occurred and the conduct manifesting the reckless indifference.[50] Difficult questions would arise, as they did at common law prior to 1957, over whether the killing was committed 'in the course of' or 'arose from' the commission of another offence.

    2.114      The 'felony-murder' approach is superficially attractive but the problems with it run very deep. In the way that the recommended crime of second degree murder is defined, we have sought to avoid these problems. However, we have also done something to capture what attraction the 'felony-murder' approach does have. Under our recommendations, to commit second degree murder either the offender must kill whilst intentionally causing serious injury or must kill when not only aware of a serious risk of causing death but also intending to cause injury or a fear or risk of injury. In both instances, an offence against the person is either constitutive of, or the foundation for, a second degree murder conviction.

    Conclusion

    2.115      We believe that, although the recommended formula seems narrower than reckless indifference, when it is fully explained to a jury it will in practice be found to cover the examples we sought to capture with the phrase 'reckless indifference'.[51] In that regard, it must be kept in mind that when deciding whether an accused person intended to cause injury or a fear or risk of injury, intention would be given the meaning we assign to it in Part 3. D can be found to have intended to cause injury or a fear or risk of injury if he or she foresaw one or other of those results as virtually certain to occur.

    2.116      We recommend that second degree murder should encompass killing where the defendant intended to cause injury or fear or risk of injury aware that his or her conduct involved a serious risk of causing death.

    THE THREE-TIER STRUCTURE AND 'SPLIT' JURIES'

    2.117      Our view is that it is important that the introduction of a three-tier structure to the general law of homicide does not lead to more trials in which juries cannot reach a verdict. More 'split' juries will inevitably entail more retrials ordered in the hope of finding a jury that can agree. More re-trials also mean more costs incurred and more delay, not only in relation to the trial in question but also in relation to other trials that have to be put back. Even if the increase in the number of re-trials ordered in any year turns out to be relatively small, the adverse consequences for the individuals concerned should be of paramount importance. More re-trials will mean more cases in which defendants, witnesses and the families of victims and defendants alike will have to go through the trauma of the trial once again, with no guarantee that a single re-trial will resolve matters.

    2.118      In that regard, our recommended division between first and second degree murder raises an important point of procedure. If members of a jury are irreconcilably split over the question whether D had the fault element for first degree murder or only the fault element for second degree murder, what should happen next? We believe that this situation is already adequately catered for.[52]

    2.119      Under the existing law, a jury should ordinarily only consider the offence of manslaughter when they have positively decided that the accused is not guilty of murder.[53] However, when a jury cannot agree on a verdict of murder, it can be discharged from the obligation to give a verdict on murder if the justice of the case so requires. The jury can, if need be, be asked to consider a count of manslaughter newly added to the indictment without the need once more to arraign D on a charge of manslaughter.

    2.120      It follows that, under a three-tier structure, on a charge of first degree murder, it would be perfectly acceptable in an appropriate case to discharge a jury that cannot agree on a verdict of first degree murder from giving a verdict on that charge. The jury can instead be invited to consider a new count of second degree murder. A similar procedure can be followed in any case where a jury is split on the question whether D had one of the fault elements for second degree murder or only one of the fault elements for manslaughter.

    2.121      It is important to emphasise, however, that the adding of new counts in such cases should not become a routine procedure. Adopting that procedure precludes a re-trial and so it is not always in the interests of justice.[54] The important point for present purposes is that we do not believe that the introduction of a middle tier to the general law of homicide will lead to a large number of cases in which there must be a re-trial because the jury cannot agree that D had a specific fault element at the time of the offence.

    PARTIAL DEFENCES
    Introduction

    2.122      At present, a successful plea of provocation, diminished responsibility or killing pursuant to suicide pact reduces murder to manslaughter. If a three-tier structure to the law of homicide were introduced, with a middle tier of homicide above manslaughter, a different outcome would be possible when these (or other) partial defences are in issue.

    2.123      There are four issues:

    (1) Should the law of homicide retain partial defences?
    (2) If the answer to (1) is "yes", should each partial defence have the same effect?
    (3) Should the operation of the partial defences be confined to first degree murder?
    (4) If the answer to (3) is "yes", should a partial defence reduce first degree murder to second degree murder or to manslaughter?
    The provisional proposals in the CP

    2.124      Our proposals were:

    (1) as long as there is a mandatory sentence of life imprisonment, there is a need to retain the partial defences;
    (2) each partial defence, if successfully pleaded, should have the same effect;
    (3) the operation of the partial defences should be confined to first degree murder. They should not operate as partial defences to second degree murder; and
    (4) a partial defence, if successfully pleaded, should reduce first degree murder to second degree murder.
    Responses to our proposals

    2.125      We were not surprised to find that our proposals met with a wide divergence of opinion amongst consultees.

    2.126      They were supported by, amongst others, the Crown Prosecution Service; the Association of Chief Police Officers; the Police Federation; Victims' Voice; the Royal College of Psychiatrists; the Mission Affairs Council of the Church of England; and a number of academics and individual judges in the higher courts.

    2.127      They were not supported by, amongst others, the Criminal Bar Association; the Law Society; the London Criminal Courts Solicitors' Association; Liberty; NACRO; Refuge; Rights of Women; and Southall Black Sisters.

    2.128      Some consultees – for example Justice; Southall Black Sisters; Rights of Women; Mr Virgo; the Criminal Bar Association; and Liberty - agreed that a successful plea of either provocation or diminished responsibility should end in the same verdict. They considered, however, that that verdict should be something other than second degree murder, such as manslaughter.

    2.129      Some consultees – the Law Society, NACRO, Professor Mackay, the criminal law teachers at the London School of Economics and Political Science; and Dr Hoyano – thought that a distinction should be drawn between different partial defences in terms of the effect they should have on the verdict if successfully pleaded.

    Should the law of homicide retain partial defences?

    2.130      Only a small minority of consultees favoured abolishing partial defences altogether. We agree with the majority opinion. While the mandatory sentence of life imprisonment for murder remains, the partial defences should remain.

    2.131      As we indicated in the CP,[55] if a life sentence has to be passed on an offender with no previous criminal record who was driven to kill on the spur of the moment by very grave provocation, the sentence that must be passed will have a 'topsy-turvy' character. The offender will, on current guidelines, be required to spend perhaps only two to four years in prison for the offence because of the gravity of the provocation and the fact that he or she acted spontaneously. Yet, when released from prison, he or she will then remain on licence, liable to be recalled to prison for, perhaps, another 40 years or more. This is a feature of 'life' sentences that the public finds hard to understand.[56]

    Should each partial defence have the same effect?
    The problem of 'split' juries

    2.132      We have already referred to the problems that result from a jury being unable to agree on a verdict.[57] This problem has shaped our thinking in relation to the recommendations that we should make in relation to the partial defences.

    2.133      This aspect of our provisional proposal – 'multiple pleas, single verdict' – was supported by the Criminal Bar Association; the Crown Prosecution Service; the London Criminal Courts Solicitors' Association; the Police Federation; Justice; Liberty; Victims' Voice; the Criminal Cases Review Commission; a number of individual judges in the higher courts; and some academics.

    2.134      By contrast, some consultees thought that a distinction should be drawn between different partial defences in terms of the effect they should have on the verdict if successfully pleaded. The Law Society, NACRO, Professor Mackay, the teachers of criminal law at the London School of Economics and Political Science and Dr Hoyano would have diminished responsibility reduce first degree murder to manslaughter even if provocation only reduced first degree murder to second degree murder (or was abolished). To some consultees our provisional proposals seemed crude and insensitive to considerations of fair labelling. They ask: why cannot some partial defences reduce first degree murder to manslaughter if manslaughter would be a more appropriate label?

    2.135      We recognise that there may be advantages to this more nuanced approach to partial defences in terms of labelling offenders more accurately. However, we believe that the benefits of that approach are outweighed by the drawbacks. In particular, we cannot countenance a situation in which a jury is agreed D is not guilty of first degree murder but there must nonetheless be a re-trial because (say) half the jury thinks that a defence that ends in a manslaughter verdict succeeds whereas the other half think that a defence that ends in a verdict of second degree murder succeeds. Quite simply, it would be wrong to put all those involved through a re-trial in such a case except in the most exceptional of circumstances. Fair labelling considerations are not a sufficient justification for risking more frequent re-trials, especially given that the sentence for second degree murder and for manslaughter is the same, namely a maximum sentence of life imprisonment.

    2.136      In that regard, we note that research, kindly made available to us by Professor Barry Mitchell and Dr Sally Cunningham,[58] indicates that three in every four provocation pleas were combined with another defence. By way of contrast, a 'lack of intent' plea on a murder charge was twice as likely to be pleaded on its own rather than with another defence.

    2.137      D may plead both lack of intent to commit murder and provocation, or provocation and diminished responsibility, or provocation and self-defence.[59] At least some of the same evidence will commonly be deployed in relation to each plea. Here is an example. D may say that a sudden loss of self-control meant that there was not only no relevant intent (the 'evidential' provocation plea), but also that there was a case for reducing the offence to manslaughter by virtue of section 3 of the Homicide Act 1957 (the 'substantive' provocation plea).

    2.138      There is nothing wrong with a system in which pleas overlap or involve reliance on the same evidential basis. Under the current law, however, it is not easy to raise a doubt that, in a case where (say) V was stabbed in the chest, following a loss of self-control on the part of D, there was at least an intention to do serious harm. So, in practice, a 'substantive' provocation plea under section 3 will be the more plausible plea in such a case. That may not remain true under our recommendations. If the fault element for murder is changed in the way that we recommend, the 'evidential' provocation plea may become as plausible as the 'substantive' provocation plea.[60] In a case where there was a loss of self-control, great rage or fear, D is quite likely to couple a substantive plea of provocation with a claim that he or she did not intend to kill, or, despite admitting intentionally inflicting serious injury, did not advert to the serious risk of causing death.

    2.139      In such cases, the lack of an intent plea (assuming it is not a plea D had the fault element only for manslaughter) should not lead to a verdict other than that to be reached if the partial defence plea of provocation is successful. The overlapping nature of the pleas dictates this.

    2.140      The same is true of cases in which provocation and diminished responsibility are pleaded together. Success in pleading either of these pleas must entail the same verdict (on our recommendations, second degree murder). D may attribute a loss of self-control and angry retaliation to provocation and to the effects of a serious mental disorder (diminished responsibility). Suppose that a jury, having heard the evidence on each of these (overlapping) pleas, agrees that D is not guilty of first degree murder. They should not then be required to agree that either the provocation defence succeeds or that the diminished responsibility defence succeeds, because each defence when successfully pleaded leads to a different verdict (say, second degree murder in the case of provocation, and manslaughter in the case of diminished responsibility). As we have already indicated, this would be unacceptable, because it is likely that very many juries would be divided on the question of which defence succeeds, perhaps necessitating a retrial even though the jury is agreed that D is not guilty of first degree murder.[61] The jurors should be allowed to come to the same verdict without having to agree on which ground.

    2.141      Dr Rogers has argued that a problem with the 'multiple pleas, single verdict' approach is that it would leave the evidential basis for sentencing unclear.[62] The jury might be very divided over the evidential plausibility of one or other of D's pleas, even if this is concealed behind the agreed verdict of second degree murder.

    2.142      This problem has always existed in the law, and judges have dealt with it using common sense, experience and judgement. Take a case where it is unclear whether lack of intent, diminished responsibility or provocation is the basis for a manslaughter verdict. A judge will (a) try to form a defensible view on that question for him or herself, but also (b) frequently conclude that the sentence D is to receive should not differ materially whatever the basis was for the verdict. The judge is also entitled to indicate to members of the jury, before they retire to consider their verdict, that he or she will be asking them to indicate, if they can, what the basis for their verdict was.[63]

    2.143      In cases where diminished responsibility and provocation are pleaded together, it has been considered especially important (but still not absolutely essential) that the judge should ask the jury for the basis of their verdict.[64] This is understandable. Diminished responsibility, unlike provocation, requires D to satisfy a burden of proof, and the sentencing options are wider. Even so, a judge is in as good a position as anyone to decide whether the evidence favours a hospital order or another treatment-based sentencing option, when diminished responsibility has been pleaded and a manslaughter verdict brought in. There may be cases where the judge would be assisted by an indication from the jury as to the thinking that lay behind their verdict, but that will not be true in all cases.

    2.144      It would be possible to require a jury to return a 'special' verdict if D discharged the burden of proof in relation to a claim of diminished responsibility, as well as pronouncing on verdict more generally. However, that might lead a jury to attribute too much significance to the defence, when it is only one of two – or more – defences that D is running and is perhaps very much second or third best from D's point of view.

    2.145      In France, issues such as these are tackled in a different way. When the most serious crimes are being tried, although there is a presiding judge, three professional judges take their place alongside nine lay people as members of the jury and the jury members vote together on both verdict and sentence.[65] So, there is no need to have precisely the same kind of rules of law and practice governing the relationship between judge and jury as one finds in England and Wales.[66] We can see both advantages and disadvantages to this approach. However, to take it further would raise large questions about the composition of juries, and their role in sentencing, taking us well outside our terms of reference.

    Should the operation of partial defences be confined to first degree murder?

    2.146      We do not see a role for partial defences in reducing second degree murder to manslaughter. There are two reasons for this. One reason concerns the relationship between verdicts affected by partial defences and sentencing options. The other reason concerns the constraints on the way that evidence for the partial defence must be presented if it is to bear on verdict as opposed to sentence.

    2.147      The primary importance of partial defences should be seen as lying in the impact they have on sentence rather than on verdict. This is what could be called the 'sentence mitigation' principle. Matters of verdict and of sentence are effectively fused in murder cases. Partial defences affect the verdict of murder, and only that verdict, because a verdict of murder is the only one that carries in its wake a mandatory sentence of such gravity (life imprisonment). Therefore, in our view, the argument for partial defences that is based on fair labelling - avoiding the label 'murderer' - is of secondary importance compared to the sentence mitigation principle.[67]

    2.148      The secondary importance of labelling considerations explains, in part, why partial defences do not reduce other crimes that carry discretionary maximum sentences, such as attempted murder, to lesser included offences, such as, in appropriate cases, wounding with intent to do grievous bodily harm.[68] We found it significant that those consultees who thought labelling considerations ought to have played more of a role in structuring our proposals for partial defences to homicide, did not extend the logic of their arguments to those homicide-related crimes that have lesser included offences.

    2.149      Our view is that when the offender has killed with the fault element for first degree murder but pleads a 'partial defence' successfully, he or she still ought to be convicted of an offence of 'murder' (second degree murder). It is not imperative that there should be partial defences to second degree murder, just because it is an offence of 'murder', because second degree murder would attract a discretionary life maximum sentence.

    2.150      The idea of 'partial defence' is in reality something of a misnomer. Historically, the way that the law has created space for discretion in sentencing in murder cases has been by permitting the mitigating circumstances to reduce murder to manslaughter (the latter crime, unlike the former, having a discretionary element to the sentence). The creation of such space could equally have been achieved by making proof of the exceptional mitigating circumstances relevant to whether the sentence for murder was still mandatory, without affecting the verdict of murder. However, the consideration of such an option for reform of the law was beyond our remit, as it would have involved a departure from the mandatory life sentence principle in top-tier homicide cases.

    2.151      It follows that we do not support the case for applying partial defences to any offence other than what would, under our scheme, be first degree murder. This is because under our scheme, only first degree murder wouldl carry the mandatory life sentence. Offences below first degree murder would attract a discretionary sentence. So, the primary justification for having 'partial defences' is absent, when offences below first degree murder are in issue. The sentence upon conviction for both second degree murder and manslaughter is a matter for the judge. There is no need to reduce the more serious offence to the less serious one in order to secure this flexibility in point of sentence.

    2.152      That brings us to the second reason for recommending that partial defences should have no application to homicide offences other than first degree murder. This is that when partial defences are made relevant to verdict, this brings in its wake undesirable constraints on the way that evidence for the partial defence must be presented.

    2.153      The Royal College of Psychiatrists has argued that psychiatric evidence of diminished responsibility is inevitably distorted when it must be made relevant to verdict rather than to sentence.[69] Victim Support have argued[70] that in cases where provocation is pleaded, the fuller picture of the relationship between offender and the deceased is much easier to portray at the sentencing stage than in the adversarial context of the trial.

    2.154      By making evidence of diminished responsibility relevant to verdict, when (as in cases of second degree murder) it could simply be made relevant to sentence, one would needlessly force experts to distort the relevance of their evidence. Likewise, by making evidence of provocation relevant to verdict, one also forces the jury to work with only a partial picture of the context in which the provocation was alleged to have been given, a partial picture largely provided (usually uncontested) by D. These drawbacks may be something that we must live with when the verdict would otherwise entail the passing of an inappropriate mandatory sentence but they should not be tolerated outside that context.

    2.155      The restriction of the partial defences to first degree murder cases also inevitably makes matters much more straightforward for everyone involved in the trial of other homicide offences, especially second degree murder trials. This is for the simple reason that it reduces the range of matters that the jury has to consider and the number of complex rules and standards that they have to apply.

    Should a successful partial defence plea to first degree murder result in a verdict of second degree murder or manslaughter?

    2.156      We believe that someone who unjustifiably kills with the fault element for first degree murder deserves to be labelled as a 'murderer'. Even if successful in pleading a partial defence to first degree murder, an offender who intentionally kills or kills having intended to cause serious harm realising that his or her conduct involved a serious risk of death is appropriately convicted of second degree 'murder'. This view was strongly supported by amongst others the Crown Prosecution Service, the Association of Chief Police Officers, the Police Superintendents' Association, the Police Federation and groups representing the interests of victims.

    2.157      In addition, we have set out our reasons why we do not favour the partial defences reducing second degree murder to manslaughter. That being so, it would be illogical if a partial defence, successfully pleaded, reduced first degree murder to manslaughter. Those charged with second degree murder who had been provoked or who suffered from diminished responsibility would irrationally be treated too harshly. Evidence of provocation or diminished responsibility, however compelling, would be relevant only to sentence in their case even though they would have a lesser fault element than someone charged with first degree murder. Yet, someone charged with first degree murder would have the chance to reduce his or her offence to manslaughter through the use of such evidence.

    Conclusion

    2.158      We believe that a successful partial defence plea should reduce first degree murder to second degree murder but that there should be no partial defences to second degree murder or manslaughter.

    MANSLAUGHTER
    Introduction

    2.159      Under the current law, there are two kinds of manslaughter: voluntary and involuntary. Under our recommendations, if implemented, the category of voluntary manslaughter would disappear because a plea of partial defence to first degree murder would, if successful, result in a conviction for second degree murder.

    2.160      At common law, there are three types of involuntary manslaughter:

    (1) reckless manslaughter;
    (2) gross negligence manslaughter; and
    (3) 'unlawful and dangerous act' manslaughter.

    2.161      Our terms of reference did not include consideration of the substantive law of manslaughter. The substantive law has been considered by the Law Commission and by the Home Office in previous reports.[71] We did not think it appropriate to re-visit that ground in a detailed way, except in so far as it had an impact on the structure of the law of homicide in general.[72] In that regard, of course, we are recommending that some cases of so-called 'reckless manslaughter' should be moved up from the bottom to the middle tier of the three tiers within the law of homicide, when they involve an intention to cause injury or a fear or risk of injury coupled with an awareness of a serious risk of causing death.

    2.162      We received some critical comment on the substantive law of involuntary manslaughter from academic consultees although not from practitioners. Additionally, groups representing victims' families considered that, in general, sentences for manslaughter were too low. That is an issue we hope will be addressed in part by moving many instances of reckless killing into the middle tier of the law of homicide.

    The scope of manslaughter within the three-tier structure

    2.163      We recommend that manslaughter should encompass:

    (1) killing another person through gross negligence ("gross negligence manslaughter");[73] or
    (2) killing another person:
    (a) through the commission of a criminal act intended by the defendant to cause injury, or
    (b) through the commission of a criminal act that the defendant was aware involved a serious risk of causing some injury ("criminal act manslaughter").

    2.164      Our recommendation with regard to gross negligence manslaughter reflects the current legal position. Our recommendation with regard to criminal act manslaughter is almost identical to the proposal put forward by the Government for replacing 'unlawful and dangerous act' manslaughter.[74] In Part 3, we consider and explain the fault elements of both gross negligence manslaughter and criminal act manslaughter.

    2.165      As we have already indicated, not all reckless killings will fall into the category of second degree murder.[75] Will they be covered by the concept of gross negligence, within manslaughter? We believe that they will. If someone realises that there is a risk of causing death, but unjustifiably carries on with his or her conduct, that can be regarded as a kind of 'gross' negligence. It can be regarded as a failure to take account of the interests of potential victims so highly culpable that it should amount to a homicide offence against the person killed. There is, in consequence, no need for the addition of 'reckless killing' to killing by gross negligence in the lower tier of homicide, manslaughter.

    SHOULD KILLING A POLICE OFFICER ON DUTY BE FIRST DEGREE MURDER EVEN IF THE KILLER DID NOT HAVE THE FAULT ELEMENT FOR FIRST DEGREE MURDER?

    2.166      This approach, which is common in American state criminal codes, was supported by the Police Federation, amongst some others. We, however, do not recommend it.

    2.167      We fully acknowledge and appreciate the difficult and dangerous circumstances in which police officers (and prison officers, amongst others) have to operate. It is almost always right to impose very long – retributive and deterrent – sentences of imprisonment on those who kill those they know to be police officers, whether they are convicted of first or of second degree murder.[76] Our concern is with the real potential for arbitrariness and legalism in the interpretation of when a police officer is 'on duty' if a special exception for them is created.

    2.168      As one serving police officer put it to us, "In one sense, we [the police] are always on duty". What he meant was that a police officer may justifiably feel obliged to intervene in an incident even when he or she is not, formally, on duty. If the officer is then killed, the killer would not automatically be guilty of first degree murder because the officer was not killed when on duty. That would remain the case even if the killer knew that V was an off-duty police officer. Yet, in some respects, it is even more admirable that a police officer is prepared to risk his or her life by intervening in an incident even when not formally on duty and even more detestable that he or she was intentionally killed in these circumstances.

    2.169      In our view, the point-and-distinction making and legalism that would inevitably accompany the creation of special categories of persons whose killing is to be automatically regarded as 'first degree murder' should not be regarded as an acceptable aspect of the way in which categories of homicide are divided.

Ý
Ü   Þ

Note 1    Paras 1.17 to 1.31 above. See also paras 2.5 to 2.6 above.    [Back]

Note 2    See para 1.27 above.    [Back]

Note 3    Under our recommended structure, only first degree murder would attract the mandatory life sentence.    [Back]

Note 4    The offences in question are attempted murder (at the top), then the offences under the Offences against the Person Act 1861, s 18, s 20, and s 47, with common assault (Criminal Justice Act 1988, s 39) as the lowest tier. See further C. Clarkson, A. Cretney, G. Davies, and J. Shephard, “Assaults: the relationship between Seriousness, Criminalisation and Punishment” [1994] Criminal Law Review 4.    [Back]

Note 5    See HHJ Nic Madge, “Summing-Up: A Judge’s Perspective” [2006] Criminal Law Review 817.    [Back]

Note 6    Martin Wasik, “Sentencing in Homicide”, in Andrew Ashworth and Barry Mitchell (eds) Rethinking English Homicide Law (2000) p 192.    [Back]

Note 7    Home Office, Violence: Reforming the Offences Against the Person Act 1861 (1998).    [Back]

Note 8    These offences, which include causing death by dangerous driving or causing the non-accidental death of a child or vulnerable adult, can be thought of as constituting a fourth tier to the law of homicide.    [Back]

Note 9    Criminal Justice Act 2003, s 269 and sch 21.    [Back]

Note 10    A term in use in Scottish law.    [Back]

Note 11    It is also worth noting that in Germany (through use of the term mord) and in France (through the use of the term meurtre) very similar terms to “murder” are in use to identify the most serious forms of homicide.    [Back]

Note 12    Such a judgement of offence seriousness can, of course, be reflected in the sentence handed down for manslaughter - eg Wacker [2003] 1 Cr App Rep (S) 92. For further discussion see the valuable article by Victor Tadros, “The Homicide Ladder” (2006) 69 Modern Law Review 601, 610 to 613.    [Back]

Note 13    We do not say that this is the only test of the defensibility of a ladder of offence seriousness. It may be that a ladder must be so structured that certain ‘key’ cases fall within one tier rather than another whatever the position ‘by and large’ in terms of seriousness.     [Back]

Note 14    The offences are to be found in, respectively, the Offences Against the Person Act 1861, ss 18 and 20. For the courts’ interpretation of those sections, that makes it right to think of them in terms of a ladder of ascending seriousness, see Mowatt [1968] 1 QB 421; Belfon [1976] 3 All ER 46.    [Back]

Note 15    Contrary to Offences Against the Person Act 1861, s 18.    [Back]

Note 16    Contrary to Offences Against the Person Act 1861, s 20.    [Back]

Note 17    In saying this we are not, of course, endorsing these offences as currently defined. We have previously proposed root-and-branch reform of these offences whilst retaining and indeed reinforcing the ‘ladder’ principle: Offences Against the Person and General Principles (1993) Law Com No 218.    [Back]

Note 18    Paras 1.17 to 1.18 above    [Back]

Note 19    Clause 58 reads, “A person is guilty of murder if he causes the death of another – (a) intending to cause death; or (b) intending to cause serious person harm and being aware that he may cause death.”    [Back]

Note 20    “The Structure of Criminal Homicide” [2006] Criminal Law Review 471, 474. See further, A P Simester, ‘”Why Distinguish Intention from Foresight?” in A P Simester and A T H Smith (eds), Harm and Culpability (1996) p 71.    [Back]

Note 21    There was also criticism of our attempts to justify confining first degree murder to intentional killing through the claim that this was the highest offence against the ‘sanctity of life’. As Sir Louis Blom-Cooper QC and Professor Morris pointed out, what is at issue in all homicide offences is a violation of the right to life, and references to ‘sanctity of life’ considerations can be misleading. See further, Alan Norrie, “Between Orthodox Subjectivism and Moral Contextualism: Intention and the Consultation Paper” [2006] Criminal Law Review 486, 488 to 491.    [Back]

Note 22    Sir James Stephen, History of the Criminal Law of England (1883), vol III, at 92. Stephen goes on to list examples of an intention to do serious injury coupled with ‘reckless indifference’ as to causing death that he believes might be viewed as worse than intentional killing, such as killing in the course of prolonged torture.    [Back]

Note 23    G [2003] UKHL 50, [2004] 1 AC 1034 at [39].    [Back]

Note 24    See para 2.70.    [Back]

Note 25    See the discussion in Part 1, paras 1.19 and 1.25 to 1.30 and in the CP at paras 1.119 to 1.123.    [Back]

Note 26    See Criminal Justice Act 2003, s 269 and sch 21.    [Back]

Note 27    Under our recommendations, that crucial question of fact would be turned over to the jury, The jury would make that decision in determining whether D is guilty of first or of second degree murder.    [Back]

Note 28    See the CP, para 3.15.    [Back]

Note 29    As we will see from para 2.95 onwards, in murder cases where there was only an intention to cause some injury or a fear or risk of injury, foresight of a serious risk of death is a necessary part of the fault element if the correspondence principle is adequately to be satisfied.    [Back]

Note 30    Chan-Fook [1994] 1 WLR 689; Ireland [1998] AC 147.    [Back]

Note 31    Chan-Fook [1994] 1 WLR 689, 690, by Hobhouse LJ.    [Back]

Note 32    Dhaliwal [2006] EWCA Crim 1139, [2006] 2 Cr App R 236.    [Back]

Note 33    DPP v Smith [1961] AC 290.    [Back]

Note 34    See the CP, Part 3.    [Back]

Note 35    The definition was an amalgamation of attempts in other jurisdictions to define serious harm: see the CP, Part 3 paras 3.115 to 3.120.    [Back]

Note 36    As, eg, under the Indian Penal Code, and the Singapore Penal Code, Cap 224, 1985 Rev Ed, ( 300(c).    [Back]

Note 37    Bearing in mind that the injury inflicted will, ex hypothesi, already have been judged serious by the jury.    [Back]

Note 38    Although, under the present law, it is possible for the judge to decide that a convicted murderer’s initial period of custody should be shorter because he or she did not intend to kill or to inflict the very worst kinds of serious injury: see para 2.67 above.    [Back]

Note 39    Paras 1.24 to 1.31 above.    [Back]

Note 40    See Part 3. This is also murder under the present law.    [Back]

Note 41    See Part 1, para 1.27 above.    [Back]

Note 42    We see no reason to distinguish between simple recklessness and gross negligence. One of the things that can make negligence gross is the fact that D went ahead to pose the risk in question in spite of the fact that he or she knew it existed: see Part 3.    [Back]

Note 43    William Wilson, “The Structure of Criminal Homicide” [2006] Criminal Law Review 471, 477 to 479. For another penetrating critique, see Jonathan Rogers, “The Law Commission’s Proposed Restructuring of the Law of Homicide” [2006] Journal of Criminal Law 223.    [Back]

Note 44    Professor Ian Dennis, “Reviewing the Law of Homicide” (Editorial) [2006] Criminal Law Review 187 to 188. See also Victor Tadros, “The Homicide Ladder” (2006) 69 Modern Law Review 601, 610 to 613.    [Back]

Note 45    Para 2.70(2) above.    [Back]

Note 46    The element of ‘serious risk’ in this formula is considered in more detail in Part 3.    [Back]

Note 47    Unless the killer thought that someone’s death was almost certain to result from his or her conduct: see part 3. Then the killer stands to be convicted of first degree murder.    [Back]

Note 48    An intention to cause injury or fear or risk of injury is different from intentionally doing an act that in fact creates an unintended risk of injury.    [Back]

Note 49    In analysing our recommendations in this way, we are drawing in part on the theoretical structure advocated by Professor William Wilson, ”The Structure of Criminal Homicide” [2006] Criminal Law Review 471.    [Back]

Note 50    This is the problem of so-called ‘felony-merger’: see C Finkelstein, “Merger and Felony-Murder”, in S Green and R A Duff (eds.), Defining Crimes (2005) p 218; Kimberly K Ferzan, “Murder after the Merger: A Commentary on Finkelstein” (2006) 9 Buffalo Criminal Law Review 561.    [Back]

Note 51    See para 2.98 above.    [Back]

Note 52    Saunders [1988] AC 148.    [Back]

Note 53    See Criminal Law Act 1967, s 6(2).    [Back]

Note 54    See Archbold, Criminal Pleading, Evidence and Practice (2006 ed) para 4-460.    [Back]

Note 55    Paras 2.95 to 2.96.    [Back]

Note 56    See the CP, Appendix E.    [Back]

Note 57    See paras 2.117 to 2.121 above.    [Back]

Note 58    See Appendix C: Defences to Murder.    [Back]

Note 59    R.D. Mackay, “Pleading Provocation and Diminished Responsibility Together” [1988] Criminal Law Review 411. See also Appendix C for an analysis of the range of defences commonly employed in murder trials.    [Back]

Note 60    It will also become more difficult to plead provocation successfully under our proposals for that defence: see Part 5.    [Back]

Note 61    See para 2.117 above.    [Back]

Note 62    Jonathan Rogers, “The Law Commission’s Proposed Restructuring of the Law of Homicide” [2006] Journal of Criminal Law 223.    [Back]

Note 63    Eg, see Cawthorne [1996] 2 Cr App Rep (S) 445.    [Back]

Note 64    See Matheson [1958] 1 WLR 474; Cawthorne [1996] 2 Cr App Rep (S) 445    [Back]

Note 65    Catherine Elliott, French Criminal Law (1991) p 49.    [Back]

Note 66    The French Penal Code, Articles 348 to 364 sets out in detail how the jury’s decisions are to be made. They are based on a sheet of questions prepared by the President of the court. This is, then, analogous to the common practice followed by judges in England and Wales of providing the jury with such a sheet (see para 2.27 above). Rather different from English law is the requirement for the French jury vote on the answer to each question by secret ballot. We are very grateful to Professor John Spencer QC, of Cambridge University, for the guidance he has provided us on the law of homicide in France.    [Back]

Note 67    Although the importance of labelling considerations does in part support our recommendation that the effect of partial defences should be to reduce first degree murder to second degree murder.    [Back]

Note 68    Contrary to the Offences Against the Person Act 1861, s 18.    [Back]

Note 69    See the CP, para 6.26 and Part 5 below.    [Back]

Note 70    See the CP, para 2.68 which refers to the formal response of Victim Support to our consultation paper Partial Defences to Murder (2003) Law Commission Consultation Paper No 173.    [Back]

Note 71    Involuntary Manslaughter (1996) Law Com No 237; Home Office, Reforming the Law on Involuntary Manslaughter: The Government’s Proposals (2000).    [Back]

Note 72    However, in the CP, para 3.2(4), departing from the recommendation that we made in our earlier report Involuntary Manslaughter (1996) Law Com No 237, we did provisionally propose that the gross negligence form of manslaughter should only be committed where there was gross negligence as to a risk of causing death as opposed to causing serious harm. That change reflects the current legal position – Adomako [1995] AC 171.    [Back]

Note 73    In Part 3, paras 3.58 to 3.60, we set out the fault element for gross negligence manslaughter.    [Back]

Note 74    Home Office, Reforming the Law on Involuntary Manslaughter: The Government’s Proposals (2000) para 2.11.    [Back]

Note 75    See the discussion in paras 2.108 to 2.111 above.    [Back]

Note 76    See Appendix A.    [Back]

Ý
Ü   Þ


BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII
URL: http://www.bailii.org/ew/other/EWLC/2006/304(2).html