Should UK Go for the New Homicide Law of 20th Century?

The current Law of Homicide has been subject to relentless criticisms among the concerned ones. Many scholars find this Act severely superannuated. The definition of murder and its range, its relationship to manslaughter, Complicity in murder and the joint enterprise doctrine, defenses and obviously the mandatory life sentence for murder are the key areas, criticisms are aimed at. In this essay I will evaluate the Homicide law and its scope, find out the possible reasons for not serving up to the expectations, the possible solutions and their evaluation. This essay will consider the significant provisions proposed by the English Law Commission, assessing whether they will fill in the loop holes existing in the current law or conversely simply worsen them.

The Homicide Act 1957 was never designated to do more than cut back the ambit of the death penalty and introduce some minor reforms to a structure of offences and defences that had evolved at common law that was already a couple of centuries old. In relation to “malice aforethought” and the definition of diminished responsibility the Act lacks clarity, not only that it is clearly evident that the Act’s lack of attention to issues regarding structure, grading and definition of the offences demonstrates substantial problems. [1] The English Law Commission was given a duty in 2005 to come out with a review of law in relation with murder and manslaughter. In it’s Consultation Paper 2005, the Commission proposed to retain murder and manslaughter, but to separate murder into two degrees and to narrow-down the scope of manslaughter. [2] The English Law Commission’s original proposal was that the offence of first degree murder would include cases of causing death where the offender intended to kill the victim. On the other hand, the offence of second degree murder would include cases of causing death where the offender intended to do serious bodily harm, was recklessly indifferent to causing death. It would also include the cases where the defendant killed the victim but had a partial defense, such as provocation, killing in pursuance of a suicide pact and diminished responsibility. [3] After a year the report titled ‘Murder, Manslaughter and Infanticide’ was published. [4] In this report the Commission recommended the same structure as it proposed in the earlier report but the border between the first and second degree of murder was changed. The commission felt that the first degree of murder was too narrow and should be extended beyond an intention to kill, to include causing death where the person intended serious harm was aware of the risk of causing death. [5] Second degree murder would encompass killing with an intention to do serious injury, or where the offender intended to cause some injury, fear of injury or a risk of injury in awareness that the conduct involved a serious risk of causing death. A final form of second degree murder is that where a person would have been liable for first degree murder but had a partial defense. And lastly, manslaughter would cover causing death by criminal act which was intended to cause injury or where there was awareness that the act involved a serious risk of injury or cases of gross negligence as to causing death. [6] The identification of the fair labelling as one of the principles by the Law Commission guided the development of the three tier structure of the homicide offences. [7] However the principle was not considered as the chief ground for the English Law Commission’s recommendation. This might be as there has not been too much elaborated examination of this principle and it often “…assumed to be a principle of self-evident value” as noted by Chalmers and Leverick. [8] It is likely that the Commission did not put too much importance on the principle as it did not wanted to embark into the disputed field of debating how homicides should be labeled. According to the Commission:

“People’s views on fair labeling questions will understandably differ very widely. Important though the fair labeling principle is, we would not want our analysis to become bogged down in questions concerning the appropriateness of particular labels for offences. It is more important that we set to rights the structure, or ladder, of offences.” [9]

However the statement above demonstrates that English Law Commission has adopted a constrict understanding of the principle of fair labeling. As Chalmers and Leverick note, the principle of fair labeling performs two-not entirely separate-functions: it explains the need to describe and the need to categorise. [10]

Some suggests that Criminal Justice system could operate with a few offences and some have also suggested that the offences of Homicide should be merged into one. Lord Kilbrandon stated in Hyamm v DPP:

“There does not appear to be any good reason why the crimes of murder and manslaughter should not both be abolished, and the single crime of unlawful homicide substituted; one case will differ from another in gravity, and that can be taken care of by variation of sentences downwards from life imprisonment.” [11]

Blom-Cooper and Morris placed a great deal of arguments in favour of the single homicide law. [12] The offence would be the same, regardless of the accused’s state of mind and the circumstances, but these would be taken into account in order to determine the appropriate level of punishment. [13] According to their opinion mitigating factors are should be treated with the sentence given, not through the inflexible structures and partial defenses. This method actually has the ability to reduce the complexity and adversarial elements of court procedure as then the defendant would not argue that what he has done was manslaughter rather than murder.

Despite these advantages, the proposal of a single homicide offence has found little support from the law reform bodies. This view had some judicial support but was rejected by the English Criminal Law Revision Committee right after Lord Kilbrandon suggested it. [14] Since this would remove the specific label and uniqueness that attaches to it, the option is unlikely ever to find a find much general support. [15] It would take important components of the decision-making procedure out of the hands of the jury, applying the standard of proof beyond reasonable doubt, and give them to the judge, who would adjudicate them on the basis of the less strict criteria used in sentencing. [16]

Why there is so much concern regarding the divide up of the homicide offences, where on the other hand a single homicide offence can cost less in the trial? Fair labeling, that would be the answer. According to Andrew Ashworth, this principle demands that distinctions among the offences and their proportionate wrongfulness should be pointed out by the label attached to that offence. [17] The importance of fair labeling arises as it allows differences between the offending behavior and culpability to be identified and described. [18] The thing that promotes transparency in the criminal justice system is the accurate recording of different categories and degrees of criminal wrong in different offence labels. Chalmers and Maverick on this point,

“…the severity of sentencing is a very blunt tool for assessing the level of a person’s wrongdoing, it may also paint an inaccurate picture- a sentence may, for example, be substantially aggravated or mitigated as a result of factors which are unrelated to and tell us nothing about the offence itself or the offender’s culpability.” [19]

Fair labeling greatly serves communicative functions. The mass people, the defendant/offender, the victim and people of the Criminal Justice system can be communicated and get to know about the way in which the offender has breached the law and the aftermaths which should follow from this. According to Barry Mitchel,

“…ordinary people agree with the principle of fair labeling, at least in relation to homicide, that the nature and magnitude of the wrong doing should be reflected in the recognition of distinct offence categories.” [20]

This study was successful to convince the English Law Commission that with the introduction of ‘first degree murder’ it would be possible to bring the law in line with community standards. [21] Dividing the offences of murder brings transparency to the system, and the conviction might be more acceptable to the offender.

Due to its piecemeal development the Homicide law of England lacks coherence. The recommendation by the English Law Commission and the introduction of the offences of first degree and second degree murder must be undertaken, and the Government should therefore be encouraged for that. It is true that such a division between the offences of homicide can make the trials more complex, as an offender will always try to avoid the conviction of the most serious offence. The jury then will be in a difficult position in determining whether the requisite intention was in fact present. These criticisms are easily overweighed by the three tier-system. The system permits differences in the degree of culpability of the offenders to be recognized in the label of the offence for which they are convicted.

Lastly, it seems to be the case that the consultation paper provided by the Law Commission will help to meliorate issues in relation to lack of clarity, which the current law has failed to offer. The offences of murder and manslaughter can be considered as examples, which are at present too wide. The proposal of the three tier structure can assist a lot in achieving a coherent structure. In tightening the current law, fair labeling can play a very significant role, it can make sure that the offenders are sanctioned with suitable punishment.

Outcome 1:

Identify the principal issues for research on a specific topic.

Claim

‘I can identify the principal issues for research on a specific legal topic.’ I think I have attained this requisite outcome as I have managed and conducted my research on a particular topic ‘Homicide’. It is also to be noted that formulating the research question for this topic indicates that I have founded the principal and primary issues regarding the subject. In my opinion the

In my opinion the present law of Homicide certainly is a pretty controversial and significant topic. It is worth researching as it has been a live issue for several years and the debate regarding this subject never ends. The substantial criticisms, lackings and proposals posed in these years has made this topic extremely important and needs careful consideration. The law of Homicide was introduced to abolish the death penalty and to show some piecemeal reforms which were developed at common law and were already several centuries old. While I was doing my initial research I found out that there were flaws and questions regarding the topic which are needed to be answered and need careful consideration. I realized that the answer of my research question can only be achieved through a detailed and analytical observation of the topic. During the intense research process I came to understand that the Act is showing its age and its lack of attention to issues of structure, grading and definition of the offences of homicide presents significant problems. For an example, it has always been silent in relation to its use of malice aforethought and the definition of diminished responsibility. After collecting the required materials, I began to analyze. I found out that there were a lot of legal scholars who suggested and proposed very significant ideas and suggestions in order to improve the current system of homicide, such as, Louis Blom-Cooper, Terrence Morris, J.R. Spencer, Ian Dennis, Andrew Ashworth, James Chalmers, Fiona Leverick, William Wilson and others. The English Law Commission’s consultation papers are very important as far as my research process is concerned. The reform proposals given by the Commission are well thought and significant and can play a very vital role if implemented and dealt with careful consideration. The Government should be encouraged to take such a great step.

Evidence

The first two paragraphs clearly indicates that I have managed to successfully identify the key issues for research in my topic and demonstrated the required skills of 1) legal sources and research and 2) autonomy and the ability to learn. The formulation of my research question regarding the topic plays a vital role in the process. At first I tried to identify the key problems of the current homicide structure and their proposed solution. Text books, journals and other supporting materials helped me greatly in the process. Later I evaluated the probable solutions represented by the legal scholars and the law commission. There were several case laws which I studied during the research process and found them very informative and useful in order to get the total understanding of the current law, e.g. Moloney, Woollin, DPP v Smith, Matthews and Alleyne, Hyam v DPP, Frankland and Moore v R, A-G’s reference (no.3 of 1994) and others. These cases brightened up my conceptions regarding the topic. There were some very informative and useful articles I found at the online database. Thanks to London University for providing such a great source of materials, that helped me a lot as I could not have found those journal in the local libraries. The article of Andrew Ashworth “Principles, Pragmatism and the Law Commission’s recommendations on Homicide Law reform” gave a very in depth reflection on the chosen topic and guided me maturely throughout the process. The editorial by Ian Denis titled “The Law commission’s report on homicide” published in Criminal Law Review was surely an interesting one to read and

provided a thoughtful overview regarding the Commission’s recommendations. There were other handfuls of articles which helped me a lot throughout the course in order to identify the key ideas and significant issues of my research. Those were, “The structure of Criminal Homicide” by William Wilson, “Lifting the life sentence?” by J.R. Spencer, “The penalty for murder: A myth exploded” by Terence Morris and Louis-Blom Cooper, “A capital indictment of the penalty of murder” by Nicola Padfield, “Reforming the law of murder” by Andrew Ashworth and others.

Outcome 2

Locate and retrieve relevant information on a specific topic using primary and secondary legal sources, in paper or electronic media (including use of the world-wide-web)

Claim

I can locate and retrieve relevant information on a specific topic namely homicide, using primary and secondary legal sources, in paper or electronic media (including use of the world-wide web). At the initial stage of the research I went through the text of Catherine Elliot and Smith & Hogan on Criminal Law which provided me a very precise detailed idea regarding the topic. While reading the texts I also came to know about some secondary materials referred by the authors in the bibliography which enlightened me with an in depth idea. I went through the subject guide provided by the University of London, which was a great help indeed. I also went through the Lexis Nexis: Haulsbury’s Law of England provided by the online law library and it helped me to find out significant research materials for my research. I downloaded the Homicide Act 1957 from Bailii in PDF format. The two libraries I primarily used are Westlaw and LexisNexis, for their easy to use interface and strong search engine. I went through some local libraries but could not find anything useful that can be attributed to the research due to their poor collection of sources. I was greatly helped and supported by the online law library during the research process.

Evidence

At the initial stage my target was to find all the relevant and necessary materials. The textbooks and subject guide helped me to identify the most important issues regarding my research. I read the whole Homicide Act 1957 in order to have a better idea. Searched for the debated cases regarding constructive malice and found them via online laws library and went through them. There were several very informative articles I downloaded from Westlaw and LexisNexis which widened my scope of thinking in relation to the chosen topic.

The bibliography of my research essay lists the primary and secondary sources I located for my research.

Outcome 3

Use sources in a critical and reflective way.

Claim

I can use sources in a critical and reflective way. In the research essay I demonstrate a critical and reflective analysis of the inefficiencies of the current homicide law and the reasons behind it. Not only that I also expressed my view on the proposed reforms and the evaluation of the proposals. I identified and downloaded the relevant cases, articles and statutes from the online laws library, the textbooks helped me a lot in achieving these materials. I went through the articles I downloaded so that I can widen my cope of thinking in relation to the topic. There were some really informative articles which made me think deeply about the topic in a reflective way. After gaining the proper knowledge of the chosen topic, I analyzed the problems. Evaluated the proposals, critically analysed the opinion of the legal scholars in order to find out what can be done for the betterment of the current law.