THE DISTINCTION BETWEEN MURDER AND MANSLAUGHTER IN ITS PROCEDURAL CONTEXT1
| Published date | 01 July 1976 |
| Author | M. D. Farrier |
| DOI | http://doi.org/10.1111/j.1468-2230.1976.tb01465.x |
| Date | 01 July 1976 |
THE DISTINCTION BETWEEN MURDER AND
MANSLAUGHTER IN ITS PROCEDURAL
CONTEXT
WRITING
in
1972,
Blom-Cooper and Drewry commented
:
“A . .
.
growing awareness of the springs of human conduct
prompting antisocial (hence criminal) behaviour is perceptible
in
the actions of the courts. English judges are slowly becoming
receptive to criminological theory, and as a consequence, are
beginning to sense the sociologically essential synonymity
of
criminal justice and penal sanctions. Mr. Justice Stephen’s
aphorism that
‘
the sentence of the court is the pith and substance
of the whole criminal process
’
is fast gaining general acceptance
in the courts.”
Sadly in at least two recent decisions of the House of Lords relating
to areas of substantive law which have a substantial bearing on other
aspects of
the
criminal and penal process, the judiciary has once again
failed to consider the broader context lying beyond the narrow
boundaries of the problem immediately posed. It will be the submission
in this article that their Lordships, by searching after general principles
underlying the substantive rules of the criminal law, have set their
decisions in a context which bears little relationship to the problems
posed for the agencies of criminal justice and penal administrators in
implementing those rules in relation to particular types of offence and
particular types of offender. In order to illustrate this, one
of
these
cases-Hyam
v.
D.P.P.-will be examined in some detail.“
1
I
wish to thank
Mr.
D.
Meure
of
the University
of
New South Wales and Mr.
D.
A. Thomas
of
the Institute
of
Criminology, Cambridge, for their comments
on
an
earlier dmft.
2
Blom-Cooper,
L.
ahd Drewry,
C.,
Find
Appeal,
p.
281.
Even more specifically
they argue, at
p.
280,
that
“
in recent
House
of Lords cases, there emerges a welcome
departure from
pure
logic towards the adaptatioh
of
the criminal law to modem
criminogenic factors.”
3
Hyam
v.
D.P.P.
[1975]
A.C.
55,
H.L. and
Haughron
v.
Smith
[1975]
A.C.
476,
H.L.
4
Op.
cir.
note 3.
Haughron
v.
Smirh
could equally be used to provide illustrations,
although the significant audience here
for
the Substantive law pronounced by the
House
of
Lords is not the
jury
or
those
charged with
the
task
of
sentencing
or
administering sehtcncc but the police
as
an
agency
of
crime prevention. A rigid
interprctntion
of
the distinction betwcen the concepts
of
mens
rea and
actus
reus
might, indeed, logically seem to necessitate the conclusion that here there was
no
actus
reus
(despite the fact that the accused thought that they could successfully
complete the
acfus
rercs
of
the substantive crime
of
handling and went
on
to perform
acts
in
pursuance of this objective, thus making the case very different
from
one
where mere criminal thoughts
arc
forbidden and penalised).
On
the other hand, such
a
conclusion shows little awareness
of
the difficulties faced by the police in making
the delicate decision of when to intervene in a chain
of
events directed towards
a
consummated crime, given their wish to prevent
loss
or
damage to the victim while
still securing the conviction
of
men who have shown themselves to be quite willing
to pose
a
significant threat. Apparently, the police must be prepared to risk the
possibility
of
losing the goods and the original thieves altogether if they wish to have
an
opportunity
of
laying thcir hands
on
the aspirant handlers. Although, to be fair
to thcir Lordships, there was
a
suggestion from at least one
of
them that the
414
July
19761
DISTINCTION BETWEEN MURDER
AND
MANSLAUGHTER
415
THE
RELATIONSHIP
BETWEEN SUBSTANTIVE
LAW
AND
PENAL PROCESS
:
THE
IWACT
UPON
THE
OFFENDER
Although in
Hyam
v.
D.P.P.
little attention was paid to the offence of
manslaughter, the House of Lords, in drawing boundaries around the
offence of murder, were in essence focussing on the distinction between
the two offences. Because they failed to see the issue in these terms,
however, the members of the House of Lords at no point examine the
functions of drawing a formal legal distinction between different
offences aimed at penalising the same broad category of social harm.
One of the ultimate objectives
is
to allocate offenders to different
sub-categories which are relevant to what happens to them after
conviction. As far as the sentencer
is
concerned, the most basic
limitation imposed upon his choice as a result
of
this categorkation is
the maximum sentence which he can impose for any particular offence.
In the case of murder, however, he
is
deprived of his discretion to
choose a sentence within the range below this maximum (and including
non-custodial sentences) because the sentence of life imprisonment
is
a
mandatory [The sentencing trial judge does however have a
discretion to
recommend
to the Home Secretary the minimum period
which should
be
served by the prisoner before the Home Secretary
exercises his powers of release on licence after a recommendation from
the Parole Board, and before releasing the prisoner the Home
Secretary must also consult the Lord Chief Justice and the trial judge
if
a~ailable.~] On the other hand, when
a
conviction of manslaughter
is registered, the sentencer’s discretion, in terms of the type
of
sentence
imposed. is unfettered and there is every possibility that the offender
will
receive a lower custodial sentence than the maximum sentence of
lifc imprisonment, or cven
a
non-custodial sentence. By mercly looking
at
the
formal position therefore, it is difficult to agree with Lord
Kilbrandon’s statement that
:
“
Since no homicides are now punishable
with death, these many hours and days have been occupied
in
trying
to adjust a definition of that which has no content.” Moreover, such
a
blank assertion also ignores the reality of the situation of someone
who has been convicted of murder,
as
distinct from manslaughter in
prosecution wns unwise to concede the fact that the
goods
had been rcturncd to
lnwful custody within
the
meaning of the Theft Act
1968,
s.
24
(3)
and that this
qucstion was still open to debate
(per
Lord Hailsham
[I9751
A.C.
476, 489.
This
qucstion has subsequently been exnmincd in relation to another set of facts on n
reference to the
Court
of Appeal by the Attorncy-General seeking the qinion
of
the court on
a
point
of
law pursuant
to
the Criminnl Justice Act
1972,
s.
36
(Re
Affortwy-General’s
Reference
(No.
I
of
197’4)
[1974]
2 All E.R.
899).
Apart from the
implications raised for police operations, the decision also poses questions
for
the
penal process insofar
ns
it filters
out
of
the correctional system those from whom
members
of
society might
feel
B
need to be protected.
s
The Committee on Mentally Abnormal Offenders, in its Final Report
(1975)’
Cmnd. 6244, suggested that the mnndatory life sentehce should be abolished but that
murder and manslaughter should continue to be regarded as separate offences: paras.
19.14
nnd
19.15.
The Criminal
Law
Revision Committee had previously rejected the
suggestion that the mandatory life scntence should bc abolishcd: 12th Report,
“
Penalty for Murder,” Cmnd.
5184,
parn. 23.
7
op.
dt.
hote 3, p.
98.
0
Murder (Abolition of Death Pcnnlty) Act
1965.
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