The Law Commission was set up by section 1 of the Law Commission Act 1965 for the purpose of promoting the reform of the law. The Law Commission reviews the various elements of murder, including the defenses and partial defenses to it, and the relationship between the law of murder and the law relating to homicide (in particular manslaughter) in England and Wales. The review will make recommendations that take account of the continuing existence of the mandatory life sentence for murder and provide coherent and clear offences which protect individuals and society.
It is also to ensure that those convicted to be appropriately punished. Recommendations that are made should be fair and non-discriminatory in accordance with the European Convention of Human Rights and the Human Rights Act 1998. The process of review used is open, inclusive and evidence-based which involves a review structure that will look to include key stakeholders and consultation with the public, criminal justice practitioners, academics, those who work with victims' families, parliamentarians and faith groups.
It also involves looking at evidence from research and from the experiences of other countries in reforming their law. 2. 0 The 'Two Category' Structure of General Homicide Offences: Murder and Manslaughter There are two general homicide offences – murder and manslaughter – cover the ways in which someone might be at fault in killing. Murder, which carries a mandatory life sentence, is committed when someone ("D") unlawfully kills another person ("V") with an intention either to kill V or to do V serious harm.
While manslaughter can be committed in one of four ways: killing by conduct that D knew involved a risk of killing or causing serious harm ('reckless manslaughter'); killing by conduct that was grossly negligent given the risk of killing ('gross negligence manslaughter'); killing by conduct taking the form of an unlawful act involving a danger of some harm to the person ('unlawful act manslaughter'); or killing with the intent for murder but where a partial defence applies, namely provocation, diminished responsibility or killing pursuant to a suicide pact.
The problems with these offences are that the current definitions of these offences are largely the product of judicial law making in individual cases over hundreds of years. They are not the products of legislation enacted after wide consultation and research into alternative possibilities. From time to time, the courts have tinkered with the definitions. New cases have then generated further case law to resolve ambiguities or new avenues for argument left behind by the last case. 1 2.
1 Problems with the General Homicide Offences Under the current law, anyone is liable for murder not only if he or she kills intentionally but also if he or she kills while intentionally inflicting harm which the jury considers to have been serious as the offence of murder is too wide. Even someone who reasonably believed that no one would be killed by their conduct and that the harm they were intentionally inflicting was not serious can find themselves placed in the same offence category as the contract or serial killer.
The distinction between murder and manslaughter is almost certainly over 500 years old. No further general category of homicide has been developed over the intervening period. So, over the centuries, the two categories of murder and manslaughter have had to bear the strain of accommodating changing and deepening understandings of the nature and degree of criminal fault and the emergence of new partial defences. They have also had to satisfy demands that labelling and sentencing should be based on rational and just principles.
Further, the existence of the death penalty and, then, its successor the mandatory life sentence for murderers, has meant that the argument over who should be labelled a 'murderer' has become identified with who should receive the mandatory sentence for murder. Whilst in some respects understandable, the link with sentencing can distort the argument about labels. For example, it is arguable that although a person who kills intentionally in response to gross provocation does not deserve a mandatory sentence, he or she should still be labelled a 'murderer'.
The two-category structure of the general law of homicide is no longer fit for purpose. Consequently, the Law Commission is proposing to replace the two-tier structure with a three-tier structure on the ground that such a structure will be much better equipped to deal with the stresses and strains on the law and with the issues of appropriate labelling and sentencing. The three tiers in descending order of seriousness would be first degree murder, second degree murder and manslaughter.
"First degree murder" and the mandatory life sentence should be confined to cases of intentional killing and not to include cases where the defendant intended to cause serious harm. In arriving at this view, the Law Commission is mindful of the mandatory life sentence provisions under s. 269 at Schedule 21 of the Criminal Justice Act 2003. This is because those provisions have had the effect of markedly reducing the discretion of the judiciary to reflect properly the appropriate sentence for each individual case.
The 2003 Act, in setting down a series of recommended minimum terms for those who commit murder in its current form is insufficient flexible to encompass the range of culpability of those who have intended to cause serious harm. It is important for the law to draw a distinction between first and second degree murder. When the potential degree of culpability is significantly less for those offences which are proposed to be referred to as second degree murder offences, the discretionary life maximum penalty will be available for those types of offences.
Far from over-complicating the law, moving to a three-tier structure will greatly improve the prospects for a sentencing structure for homicide that the public can readily understand. However, the element of "an intention to do serious injury" is too uncertain a basis for categorization within the law of murder as it is difficult to prove whether a killing is done with intention or merely out of negligence. Some kinds of killings that are not intended are so especially heinous that they should be regarded as, morally speaking, virtually indistinguishable from intentional killings.
Professor Wilson, for example, argued that, 'some reckless killings attract far more revulsion and indignation than some intentional killings'. 3 Moreover, the element of "serious injury" is rather vague – shall it be confined to harm of such a nature as to endanger life; or to cause, or likely to cause, permanent or long-term damage to a significant aspect of physical integrity or mental functioning? Different courts will come out with different interpretations which eventually bring about uncertainty to law and decrease public confidence to the law.