The Law Commission's Proposed Restructuring of Homicide
| DOI | 10.1350/jcla.2006.70.3.223 |
| Date | 01 June 2006 |
| Author | Jonathan Rogers |
| Published date | 01 June 2006 |
| Subject Matter | Article |
The Law Commission’s Proposed
Restructuring of Homicide
Jonathan Rogers*
Abstract This article overviews the Law Commission’s proposed reforms
of homicide with a critical but constructive eye. First and foremost, the
article supports the proposed restructuring, recommending only that con-
crete suggestions be made for the situation when jurors agree upon second
degree murder for different reasons. But the Commission’s reasons for not
considering whether consent to be killed should reduce first degree mur-
der to second degree murder do not stand up to scrutiny and a possible
formulation of such a partial defence is examined. Further, the Commis-
sion’s definition of ‘reckless indifference’ needs to be clarified and sugges-
tions are offered for consideration.
This article is inspired by the Law Commission’s provisional proposals in
its recent Consultation Paper, A New Homicide Act for England and Wales?1
The Consultation Paper is admirable in many respects, not least in its
length and breadth of discussion. As one might expect, intention and
partial defences tend to steal the limelight, but complicity in murder,
duress and infanticide each claim a separate Part of the Paper for them-
selves, and there is some welcome attention to the definition of grievous
bodily harm2(for it would be hard to imagine a structure of homicide
offences which did not invoke some such phrase at some point).
But in this short article, I do not seek to summarise all of the
Commission’s myriad recommendations.3Indeed, my purpose is to raise
some issues which are under-discussed in the Consultation Paper, and
which perhaps ought to have been the subject of consultation questions.
Section 1 of this article presents a supportive overview of the Commis-
sion’s recommendations, but in so doing emphasises that some further
thought might usefully be given to the difficulties in asking the juries to
agree upon one from many different possible verdicts. Section 2 criti-
cises the Commission for having opted not to examine the mitigating
* Lecturer in Laws, UCL.
I am grateful to Laura McGowan, who (besides being a teaching colleague at
UCL) was a research assistant at the Law Commission, for her insights and
comments on an earlier draft of this article. As ever, I remain responsible for the
material, oversights and all.
1 Law Commission, A New Homicide Act for England and Wales, Consultation Paper No.
177 (2005) (hereafter ‘the Consultation Paper’). The Consultation Paper is
accessible via www.lawcom.gov.uk, accessed 6 March 2006.
2 See paras 3.65–3.120 in Part Three of the Consultation Paper.
3 Thus, I shall say nothing about complicity and infanticide, and little about the
reformulated provocation partial defence, on which the Commission repeats its
recent proposals in Law Commission Partial Defences to Murder, Law Com No. 290
(2004). Nor shall I discuss the recommendation that duress can act only as a partial
excuse where the defendant actually intended to kill, though this recommendation
(which reflects a belief that intentional killing is never wholly excusable) is perhaps
the most telling indication of the special seriousness which the Commission
attaches to intended death. See too the earlier work by J. Horder, ‘Occupying the
Moral High Ground? The Law Commission on Duress’ [1994] Crim LR 334 at
335–6.
223
force of the consent of a dying person to be killed.4Section 3 examines
further the proposed definition of reckless indifference to death, and
argues that there are certain common issues between the mental ele-
ments of oblique intention, reckless indifference and gross negligence
which ought to be explored together.
The good news is that both of these latter points can be addressed by
the Commission without its needing to abandon its key proposal that we
should distinguish between first degree and second degree murder. This
brings us to the Commission’s proposed restructuring of the general5
offences of homicide.
1. The Law Commission’s proposed restructuring on
homicide
The differences between the present law and the proposals of the Law
Commission is summarised below (Table 1). The most important differ-
ence is that instead of having two general offences of murder and
manslaughter, the Commission proposes three such offences: first de-
gree murder, second degree murder and manslaughter. Only those
convicted of first degree murder will receive the mandatory life sen-
tence, and those convicted of manslaughter would face a fixed maxi-
mum penalty of perhaps 14 years’ imprisonment. In the middle,
however, second degree murder allows the sentencing judge the full
range of options up to life imprisonment.
Three general offences
There are two compelling reasons for extending two offences into three.
The first, inevitably, relates to the mandatory sentence for murder,
which the Commission was asked to assume6and indeed effectively to
work its way around when proposing reform to the substantive law
itself. Thus the Commission wished to create a form of murder that is
both as narrow and as serious as possible. In turn, having a very narrow
offence to which the mandatory life sentence would be attached rather
inevitably means that there would be too much left over into a second
general offence, if we were to persist with just two general offences. So,
4 The Commission was asked to only consider euthanasia and assisted suicide
‘inasmuch as they form part of the law of murder, [and] not the more fundamental
issues involved which would need separate debate’. See www.lawcom.gov.uk/docs/
Terms_of_Reference.doc, accessed 6 March 2006. But as the Commission itself
acknowledges (paras 8.3–8.6), this limitation need not have prevented it from
considering whether (for example) voluntary euthanasia ought to mitigate the
defendant’s liability in a restructured set of homicide offences. This is discussed
further below n. 55 and accompanying text.
5 The Commission does not address most of the ‘specific’ homicide offences, such as
causing death by careless driving. Besides infanticide, the other ‘specific’ homicide
offence which receives consideration on account of its close relationship with
murder is the offence of assisting suicide, which the Commission considers should
be left to the jury as an alternative verdict to first degree murder where the killing
occurred during a suicide pact (since the Commission recommends the abolition of
the specific partial defence of suicide pact killing in s. 4 of the Homicide Act 1957):
see paras 8.95–8.102.
6 See Consultation Paper, para. 1.1.
The Journal of Criminal Law
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