The actions of the survivor

The existing law gives a partial definition of intention. A jury is obliged to follow that definition when it applies. The law also gives guidance on when a jury has the power or discretion to find that a result was brought about intentionally, even when the case falls outside the partial definition. It is important, however, to note that juries are not thought to need to have 'intention' explained to them in the trial judge's directions, even though it is an essential element of the crime of murder.

A similar approach to intention has been taken, for example, by the Court of Criminal Appeal in Queensland. 4 There is one or more of the fault elements for first degree murder, second degree murder and manslaughter use the term 'intention'. Yet the Law Commission is in favour of a fuller statutory definition of intention that sought to address a range of problems that might arise in difficult cases. They recommend that the existing law governing the meaning of intention should be codified as follows: (1) A person should be taken to intend a result if he or she acts in order to bring it about.

(2) In cases where the judge believes that justice may not be done unless an expanded understanding of intention is given, the jury should be directed as follows: an intention to bring about a result may be found if it is shown that the defendant thought that the result was a virtually certain consequence of his or her action. (B) 'Awareness' of risk To avoid doubt, the Law Commission stress that 'awareness' involves conscious advertence to the risk. In particular, someone should not be said to have been aware of a risk at the time of the alleged offence, unless it was brought to mind at the relevant time.

Merely having knowledge of the risk stored in one's memory ought not to suffice. They recommend that both first and second degree murder should be regarded as crimes of 'specific intent'. This means that if the defendant did not kill with the requisite fault element, he or she must be acquitted of murder although he or she may still be guilty of manslaughter. In particular, the defendant should be entitled to rely on any evidence tending to show that he or she did not have the intent or awareness in question, including evidence of intoxication. 5 (C) 'Serious' risk

By 'serious' risk, the Law Commission mean a risk that ought to be taken seriously. They do not mean a risk that by definition is 'likely to' or 'probably will' result in harm done. Probability may come into the question of whether a risk is 'serious' but it is not determinative of the question. It is merely one factor determining whether the risk ought to be taken seriously. The Australian High Court has succinctly and clearly expressed what they mean by serious risk in Boughey6 with the following formulation: "a substantial or real chance, as distinct from a mere possibility".

In short, a risk is regarded as 'serious' if it is more than insignificant or remote. 3. 1 The Advantages and Disadvantages The approach that is recommended by the Law Commission for the fault element of 'intention' will by all means gives the jury an element of discretion in deciding whether, a verdict of (first degree) murder can and should be returned. Giving the jury the power to find intention when they find that the defendant foresaw the result as virtually certain widens the fault element in the law of homicide.

However, it does this whilst avoiding the much greater uncertainty involved in the use of evaluative terms such as 'recklessness' or 'extreme indifference'. That the law expands the fault element through letting the jury decide when intention should be found, rather than through requiring the jury to apply yet further legal rules governing inference-drawing, can thus be regarded as a strength and not a weakness. A statutory definition of intention that sought to tackle all foreseeable difficult cases because they thought it would complicate the law and confuse juries.

Complexity should be kept to a minimum if the new structure of homicide offences is to be acceptable to Parliament, the public and the legal profession. Some academics claim it would be simpler and more honest to say that someone can be found guilty of first degree murder either if they intend to kill (or to cause serious injury aware of a serious risk of causing death) or if they know or believe that death or serious injury (aware of a serious risk of death) will occur. 7 On this view, intention, knowledge and belief, are alternate forms of fault element. This is the approach, for example, of French law8 and the American Model Penal Code.

4. 0 Partial defences Currently, there are three partial defences to murder: provocation, diminished responsibility and killing in pursuance of a suicide pact. If successfully pleaded, they do not result in a complete acquittal but in a conviction of manslaughter rather than murder. There is also what might be called a 'concealed' partial defence, created by legislation as a specific offence. This is the offence of infanticide which is committed when a mother whose balance of mind is disturbed kills her baby when the baby is less than 12 months old. 9 Infanticide is both an offence and a partial defence.

A mother may be charged with this offence. Alternatively, she may be charged with murder and plead infanticide as a partial defence to murder. 4. 1 Problems with the partial defences (A) Provocation The partial defence of provocation is a confusing mixture of judge-made law and legislative provision. The basic rule has been clear enough for a long time: if someone kills, having been provoked to lose his or her self-control, in circumstances in which an ordinary person might also have done so, it is manslaughter not murder. However, the higher courts have disagreed with one another on a number of occasions about the scope of the defence.

Consequently, the scope of the defence has become unclear. There appears to be little prospect of the courts resolving this disagreement. (B) Diminished responsibility The introduction of the partial defence of diminished responsibility in 1957 was a welcome reform. However, medical science has moved on considerably since then and the definition of diminished responsibility is now badly out of date. It has not been drafted with the needs and practices of medical experts in mind. Lord Justice Buxton describes the wording of the Act as "disastrous" and "beyond redemption". 10

(C) Killing in pursuant of suicide pact Section 4 of the Homicide Act 1957 makes the survivor of a suicide pact who took part in the killing of another person in the pact guilty of manslaughter and not murder. This provision was meant to allow the jury to take pity on those desperate enough to seek to take their own lives along with that of another person or persons. (D) Infanticide The main problem is on the procedure for ensuring that evidence of a mother's mental disturbance at the time of the killing is heard at trial. A mother may be 'in denial' about having killed her infant.

She may, therefore, be unwilling to submit to a psychiatric examination if the point of this examination seems to her to be to find out why she did it. In such circumstances, she is unlikely to have another defence and is, therefore, likely to be convicted of murder. This is not in the public interest. 11 Apparently, this is not an easy problem to solve in order to do justices in such cases. 4. 2 Recommendations on partial defences The Law Commission proposed that the operation of the partial defences should be confined to first degree murder only. There should be no partial defences to second degree murder or manslaughter.

Partial defences with a successful plea shall have the effect of reducing first degree murder to second degree murder. The main reason is the intrinsic nature of the link between the existence of the plea and the mandatory life sentence for murder. Under their recommendations, second degree murder, attempted murder, and manslaughter would all have a discretionary life sentence maximum. Hence, there is no compelling reason to extend the defence to these offences. In addition, they recommend the principle of 'multiple pleas, single verdict' where each partial defence shall have the same effect. 4. 3 The Advantages and Disadvantages

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. Since the first degree murder only would carry the mandatory life sentence and offences below first degree murder carry a discretionary sentence, so partial defences are suitable to be operated to the first degree murder only as they can affect the verdict of murder. 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. The principle of 'multiple pleas, single verdict' does not seem to be advantageous even Dr Rogers has argued that it would leave the evidential basis for sentencing unclear. 12 The jury might be much divided over the evidential plausibility of one or other of the accused pleas, even if this is concealed behind the agreed verdict of second degree murder. This problem has always existed in the law, and judges have dealt with it using common sense, experience and judgments.

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 try to form a defensible view on that question for him or herself but also frequently conclude that the sentence which is be to received 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. 13 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. 14 Thus, 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. 5. 0 Duress In the current law, duress, if raised by admissible evidence and not disproved by the prosecution, is a full defence to all crimes except murder,15 attempted murder,16 possibly some forms of treason and, possibly, conspiracy.

The prevailing judicial view is that duress operates as an excuse rather than a justification. 17 5. 1 Duress to be a defence for murder The Law Commission has recommended that duress should be a full defence to first degree murder, second degree murder and attempted murder. For duress to be a defence to first degree murder, second degree murder and attempted murder, the threat must be one of death or life-threatening harm.

Most importantly, the defendant should bear the legal burden of proving the qualifying conditions of the defence on a balance of probabilities. This proposal is accorded with the way that duress operates as a complete defence in relation to other offences and it is, therefore, conducive to coherence and consistency. The commission is aware that it is important to bear in mind the stringent qualifying conditions that attach to the defence. They believe that juries should be trusted not to accept the defence in undeserving cases.

Their proposal is found to be compatible with the Article 2 of the European Convention on Human Rights (the "ECHR") which provides that no one shall be deprived of his or her life intentionally save in the execution of a sentence of a court following conviction of a crime for which the penalty of loss of life is provided by law. Article 2 requires not only that the state must refrain from taking life intentionally but also that appropriate steps are taken by the state to safeguard life. 5. 2 The Advantages and Disadvantages Duress being a full defence to first degree murder has a moral basis.

It is that the law should not stigmatize a person who, on the basis of a genuine and reasonably held belief, intentionally killed in fear of death or life threatening injury in circumstances where a jury is satisfied that an ordinary person of reasonable fortitude might have acted in the same way. If a reasonable person might have acted as an accused did, then the argument for withholding a complete defence is undermined. As in the words of Professor Ormerod,"if the jury finds that the defendant has, within the terms of the defence, acted reasonably, it seems unfair to treat him as a second degree murderer or even manslaughterer.

" The Criminal Bar Association also argued that, if duress were not a complete defence to first degree murder, it would give the impression that, in law, "it is better to prevent the death of a stranger than to prevent the death of one's children. " Besides that, it would be compatible with Article 6(2) of the ECHR where a defence leads to a complete acquittal, it is the conditions in which the defence can be pleaded successfully that may have to be structured so as to satisfy the 'appropriate steps' requirement imposing a legal burden on the accused to prove duress on a balance of probabilities.

It is notable that the American Supreme Court by a seven to two majority has recently held that the burden of proof may be placed on the accused in duress cases. 18 Even in French law, the burden of proving any general defence, including duress, is traditionally regarded as falling on the defendant. 19 On the other hand, there are flaws in the Law Commission's proposal. Since the law rightly attaches special sanctity to innocent human life and that this should preclude duress ever being a full defence to first degree murder.

Moreover, cases of intentional killing under duress can never be completely deserving of excuse, but some are more deserving of excuse than others. Undeniably views may differ as to what makes a case more or less deserving of excuse. For example, some, but not all, will think that a person is more deserving of excuse if he or she commits first degree murder under duress in order to secure a net gain of life.

Alternatively, some will believe that those who commit first degree murder under duress in order to save the life of an innocent third party are more deserving of excuse than those who do so to save themselves, particularly if the killing also secures a net gain of life. It is a subjective issue and apparently may cause uncertainty and unfairness in law. 6. 0 'Mercy' and consensual killings A 'mercy' killing involves an intention to prevent the continuation of one kind of harm (extreme pain and suffering) to a person by doing another kind of harm (killing) to the very same person. 'Mercy' killings pose a particular problem.

Although they are intentional killings, and thus in principle, they fall in the top tier of the law of homicide, they commonly share a distinctive quality. The law of England and Wales does not recognize either a tailor-made offence of 'mercy' killing or a tailor-made defence, full or partial, of 'mercy' killing. Unless able to avail him or herself of either the partial defence of diminished responsibility or the partial defence of killing pursuant to a suicide pact, if the defendant intentionally kills the victim in the genuine belief that it is in victim's best interests to die, the defendant is guilty of murder.

20 This is so even if the victim wished to die and consented to being killed. The current law does not recognize the 'best interests of the victim' as a justification or excuse for killing. What it does, instead, is to acknowledge, to a very limited extent, that the consent of the victim can be relevant in the context of suicide pacts. However, the consent of the victim does not operate to justify the actions of the survivor of the suicide pact. Rather, combined with the fact that the survivor intended to kill him or herself as part of a pact, the victim's consent partially excuses the actions of the survivor.