Is the current law on murder in urgent need for reform?

Murder is currently defined as the unlawful killing of a human being within the Queen’s peace with malice aforethought. Murder is a common law offence and has not therefore been defined under any statute. It is a homicide offence, and carries a mandatory life sentence.

The mandatory life sentence aspect of the law is one of the main criticisms people make of the law. If a person is convicted of murder, the trial judge is required to pass a life sentence. Some people argue that motive is not relative under the current law, meaning that a person who commits a mercy killing (R v Cocker) would receive the same sentence as a person who commits an act of terrorism or acts in cold blooded murder. The only current way to reduce the sentence for a mercy killing is to plead the partial defence of diminished responsibility, which carries risks.

Both the House of Lords Select Committee Murder and Life Imprisonment (1989) and an independent committee chaired by Lord Lane in 1993 suggested the abolition of the mandatory sentence for murder, which would then leave the sentence to the discretion of the judge, and perhaps (to some extent) the jury and furthermore, Lord Irvine, the former Lord Chancellor has branded the current law “inappropriate [since] murder embraces such a multitude of diverse sins”.

At present, a person who helps to end the life of a terminally ill relative on compassionate grounds is treated in the same way as a cold-blooded killer. In cases such as R v Moloney, where the defendant is more stupid than evil, the defendant can be placed anywhere in between the two ends of the spectrum. The current mandatory life sentence in inflexible and goes against the doctrine of judicial independence. A Crown Court trial, with the aid of jurors, is supposedly society registering its disapproval of homicide offences, yet the circumstances of a particular offence could make a tremendous difference to the way that society views it. Yet if a defence fails, the person, however stupid, will be sentenced to life imprisonment.

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If the life sentence were to be abolished it would have to be in line with a system of classification of homicide crimes, or the abolition of the distinction between murder and manslaughter with the court having discretion over the sentence.

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There are further problems with intention, or the mens rea or murder. In many countries, there are degrees of murder, where first degree murder is intention to kill, and second degree murder is equivalent to involuntary manslaughter. Under current English law, a defendant may be convicted of murder if they intended to cause GBH (R v Ibrams) yet they did not foresee death, or only intended GBH. Those defendants will receive the same sentence as if they had planned the murder.

Some have campaigned for the MR of murder to be reduced to “intention to kill”, leading to the charge of murder to be for the most blame worthy crimes. The House of Lords proposed a different MR of “intent to kill or cause serious personal harm and being aware that death might result from that harm”, meaning that the subjective element is taken into consideration.

The current law in Nedrick only gives the jury guidelines on how to tell if intention is present, so the same facts could result in either conviction or acquittal. Smith and Hogan argue that the virtual certainty test is illogical as a defendant who foresees death as a possible result is as guilty as the one who foresees death as a virtually certain result.

The Law Commission has recommended that intention should be defined in common with the House of Lords Select Committee, arguing that foresight of virtual certainity should amount to intention.

Finally, there are problems with the partial defences to murder, with these being provocation and diminished responsibility.

The defence of provocation allows a defendant to plead that they are not guilty of murder as they were made angry (provoked) by something the victim said, or did, or both, and is defined in S.3 Homicide Act 1957. Many argue that this places blame on the victim, who naturally, cannot put forward their version of events.

In provocation, there is a wide meaning of “provocative conduct”, which includes things that are not illegal. It also elevates the emotion of anger over the other emotions, which for some is not a reason for it to be excusable. The law on provocation also has sexual bias. It was created by men, for men; element 2 is more based towards men and accords more with male behaviour, hence why the battered women who kill cannot claim provocation. Element 2 also carries problems, as though it is subjective, it means there is no standard that people must meet of self control.

As shown by the battered women who kill problem, it is difficult to distinguish revenge killings (R v Ahluwalia), but a time gap is now permitted, although the longer the time gap, the less likely it was not revenge.

The Law Commission do not believe the current law on provocation should remain the same as “the problems are deep and wide”, Lord Hoffman in R v Smith has said it has “serious and logical moral flaws” whilst Prof. Smith on R v Smith has said “what a muddle”. They believe that all of the defences are problematic as the law was developed in a different society than it now operates in.

There are two possible options for reform of the defence; abolition (proposed by the New Zealand Law Commission) or modification.

We should abolish the defence, some argue, because it only applies to murder and only exists due to the mandatory life sentence, which if that was abolished, would mean provocation was no longer needed. Provocation would then only be a mitigating factor, and not a defence.

Others argue that the defendant will get off a charge of murder and be convicted of manslaughter, even though they have the MR of murder. This is clearly not justice, as they have the intent to kill. The defence of provocation also blames the victim, yet they are dead, and so cannot “defend” themselves. The victims life is also under valued because the killer is not deemed to be a murderer, yet they technically are.

Finally, the defence allows a partial defence for those who kill in anger, but not compassion. Such a system places a premium on the emotion of anger, yet in my opinion anger does not last as long as compassion or empathy.

Although, others argue that the defence provides fair labelling of the defendant, and takes into account that the defendant is less culpable, and allows for the jury to be sympathetic to those who were provoked and may be too lenient if the defence was abolished.

If the defence is kept, but modified, it must be capable of working in practice. It must be uncomplicated for the jury; consistent in it’s application, and not lead to frequent appeals.

Yet there are problems with the application of a modification.

Should the defence be available where the victim acted offensively towards the defendant? The loss of self control must be clarified, there is a real problem reconciling a considered response with section three.

The defence of provocation could require “extreme emotional disturbance”, which would place all emotions equal, and the law should not favour those who suffer a sudden loss of temper over those victims of long term abuse. Such a person may kill the victim in a considered and controlled fashion, but still in a state of emotional stress. However, this would be a wide phrase, most people who kill are in a heightened emotional state about something.

The advantages of adopting the rule from the NZ Law Commission would be that it can be explained to the jury in clear terms, the jury have a judgement on whether the defendant is guilty of murder or manslaughters, and avoids the complexity of the ‘reasonable man test’.

With diminished responsibility, the defendant can claim they acted in a manner caused by an internal factor, which resulted in an abnormality of mind, which resulted in a substantial effect on the accused mental responsibility.

As the prosecution have a right to argue insanity in response to a plea of diminished responsibility, which if found would result in the defendant being sent to a mental hospital indefinitely. This could put some people off raising the defence, even if they are eligible to do so, and in no regard to the high success rate.

Furthermore, in cases of mercy killings, the prosecution will sometimes accept a plea of diminished responsibility even though the evidence is lacking, because by reducing the defendants conviction to manslaughter, this allows the court to take into account the defendants motive when sentencing and allows the judge to treat a deserving case sympathetically. Some may argue that this is a misuse of the defence, and a better solution would be to remove the mandatory life sentence.

It may also be wrongly denied for political grounds, such as the case of R v Sutcliffe. Both the defence and prosecution and defence wanted to plead a defence of diminished responsibility and had the backing of well respected experts. The trial judge refused and thus Sutcliffe was convicted of murder, yet he has spent his sentence in a mental institution. This leads some to believe that a high profile killer should always be labelled as a murderer.

Some critics argue that the defence dilutes the seriousness of intentional killing; women’s groups claims that it is too readily available for defendants who kill their partners then produce evidence of long term depression. This, for me, is paradoxical, as it brings into question battered women syndrome.

The Butler Report found the law unsatisfactory and said that if the mandatory life sentence for murder were abolished there would be no need to retain the defence. The criminal law revision committee recommends the retention even if the sentence for murder became discretionary, and recommended that the defence should be extended to attempted murder.

The current law on murder is in urgent need of reform. If the mandatory life sentence were removed, a lot of the problems would be removed, and the partial defences would also be able to be removed. If this were to happen, the current law would be satisfactory, yet other changes, such as the definition of intention being provided in statute, there would be fewer problems for juries in murder trials.