Principles, Pragmatism & Law Commission's Homicide Law Reform PDF

Here is the converted text from the image into a structured markdown format, with sections, lists, and LaTeX for formulas: # Principles, pragmatism and the Law Commission's recommendations on homicide law reform **Author:** Andrew Ashworth **Journal:** Criminal Law Review **Date:** Crim. L.R. 2007...

Here is the converted text from the image into a structured markdown format, with sections, lists, and LaTeX for formulas: # Principles, pragmatism and the Law Commission's recommendations on homicide law reform **Author:** Andrew Ashworth **Journal:** Criminal Law Review **Date:** Crim. L.R. 2007, May, 333-344 **Subject:** Criminal Law **Other related subjects:** Legislation **Keywords:** Duress; Homicide; Intention; Law Commission; Recklessness; Recommendations ## Introduction The Law Commission has taken significant steps away from the more ambitious scheme put forward provisionally in its consultation paper, *A New Homicide Act for England and Wales?* The Law Commission still recommends a three-tier law of homicide, but there are changes in the ambit of the different tiers. First degree murder will encompass not only killings with intent to kill but also those killings with intent to cause serious injury that are coupled with awareness of a serious risk of causing death. This will be the only offense to carry the mandatory penalty of life imprisonment. Second degree murder, with a maximum penalty of life imprisonment, is to include: - killings with intent to cause serious injury - killings intended to cause injury or fear or risk of injury coupled with awareness of a serious risk of causing death - killings that would fall within first degree murder but where there is a partial defense of provocation, diminished responsibility, or involvement in a suicide pact. Manslaughter, also with a maximum penalty of life imprisonment, will be committed either by killing with gross negligence or by killing through a criminal act that was intended or known to involve a serious risk of injury. There will also be a new form of manslaughter, consisting of complicity in an unlawful killing. The offense/defense of infanticide will continue unchanged. These recommendations conclude the first stage of a review, the second stage of which is envisaged to take the form of a public consultation by the government. ## 1. Defining first degree murder The Law Commission is right to support a “ladder principle" in recommending reform of the law of homicide. In its consultation paper it advanced strong arguments in favor of confining first degree murder to cases of intention to kill--a close connection with public opinion, a clear dividing line, and consistency with the correspondence principle. This reasoning has now been discarded in favor of a “moral equivalence” argument supported by quotations from Sir James Fitzjames Stephen. First degree murder should include both cases of intent to kill and cases of intent to cause serious injury where that is coupled with awareness of a serious risk of killing. The recommendation prompts four related questions, about the key concepts of intention, serious injury and serious risk, and about the "moral equivalence" thesis that is said to determine the scope of the new murder 1. ### (a) Intention The concept of intention will be relevant to the new murder 1 in both its forms, either intent to kill or intent to do serious injury. The Commission favors a definition along the lines of the existing law, rather than one that purports to make provision for a wider range of possibilities. Thus the simple definition should be "acting in order to bring a result about", a definition based on purpose but without the element of deliberation sometimes implied by that term. The extended definition, applicable where "the judge believes that justice may not be done unless an expanded understanding of intention is given", is the Nedrick-Woollin formula: "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." It is unfortunate that the Commission leaves open the possibility that a jury may decide that D thought the act was virtually certain to cause death and then decide that this does not amount to intention and therefore not to murder 1. In other words, D's foresight that the consequence is virtually certain allows the jury to "infer intention” or to "find intention" but does not require them to do so. The Commission defends giving this latitude to juries as “the price of avoiding complexity." For an offense as serious as murder, the aim should be to produce a tighter definition that requires juries to bracket foresight of virtual certainty with intention proper, leaving these unusual cases to be dealt with by (partial) defenses or otherwise. ### (b) Serious injury Three issues may be raised here. - The Commission is surely right to adopt "injury" in preference to "bodily harm", in the hope that “injury” will more easily encompass psychiatric illnesses. - The Commission decides against recommending that “serious injury” should be defined. - Account must be taken of the likelihood that this head of liability for murder 1 will be much relied upon. Under existing law, the minimum task for the prosecution is to prove an intent to cause really serious harm. It is likely that many cases will turn on this head of liability, and, if so, this suggests some need for precision in the law. After all, where the prosecution prove that D intended only non-serious injury, coupled with awareness of a serious risk of causing death, that is a form of murder 2. So the difference between that category of murder 2 and the second head of murder 1 lies only in the distinction between injury and serious injury. It may well be concluded that any definition of "serious injury" would have to be so complex as to be counter-productive, since it would confuse juries and give rise to frequent appeals. ### (c) Serious risk In its consultation paper the Commission argued that cases of an intent to cause serious injury should be classified as murder 2, rather than murder 1, largely on the ground that it is possible to intend serious harm without risking danger to another person's life. In its Report the Commission partly recants, concluding that killings based on an intent to do serious injury do warrant classification as murder 1 if an awareness of a serious risk of causing death is also proved. What is a "serious risk" of causing death? Risks may be ranged, theoretically, on a probability scale from 0 to 100. Nobody expects a criminal statute to specify a particular degree of probability, but it ought to indicate the approximate level of risk required. The Commission asserts that “serious risk” is one of those concepts that juries “can safely be left to apply to the facts of a case with a minimum amount of embellishment", and that minimum is found in the recommendation "that a risk is to be regarded as serious if it is more than insignificant or remote." If the Commission really wants to have “serious” rather than "significant", it needs to say much more about the difference. Degree of risk is merely “one factor" in the assessment. ### (d) The moral equivalence thesis It is widely accepted that causing death with intent to kill is a paradigm case of murder, but the Commission now moves away from its previous position that this should be the only form of murder 1 and seeks to bring in killings where there is an intent to cause serious injury coupled with an awareness of a serious risk of causing death. The Commission justifies this change by arguing that in cases where these two features are united--the intent to do serious injury, and awareness of a significant risk of causing death--the killing is morally equivalent to causing death with intent to kill, the other form of murder 1. ## 2. The second rung on the ladder In its Report the Law Commission recommends a three-tier structure for the law of homicide: murder in the first degree, murder in the second degree, and manslaughter. The recommendation is that murder 2 should include 5 separate heads of liability--intent to do serious injury; awareness of the serious risk of causing death coupled with an intent to cause injury or fear or risk of injury; murder 1 with provocation; murder 1 with diminished responsibility; and murder 1 in the context of a suicide pact. ### (a) Killing through an intention to do serious injury It could be said that this is the only part of the Law Commission's package that involves any down-grading. Killing in these circumstances is currently murder and attracts the mandatory sentence of life imprisonment. Many believe this is inappropriate, since there are forms of intent to do serious injury that do not make death a foreseeable consequence (e.g. knee-capping, breaking a limb). It will be necessary to distinguish injury from serious injury , which the Commission admits may be a “fine distinction”; and it will be necessary to distinguish those cases where the intent to cause serious injury is and is not accompanied with awareness of a serious/significant risk of causing death . ### (b) Reckless killing The Commission states that the current law is too generous in treating most reckless killers as guilty only of manslaughter. The recommended formula for reckless killings falling within murder 2 is therefore those cases "where the defendant intended to cause injury or fear or risk of injury aware that his or her conduct involved a serious risk of causing death." It is necessary to place this on a spectrum of four forms or levels of reckless (or “undesired") killing: those where D knew the risk of death was so high as to be virtually certain are murder 1; those where D was aware of taking a serious risk of causing death and intended serious injury also fall within murder 1; the present group falls within murder 2; and then there are reckless killings where D may realize the risk of death but is not intending to cause fear or risk of injury, which will fall into manslaughter in the third tier. The distinguishing element of the murder 2 variety of reckless killing is that D must have one of three attitudes towards injury (not necessarily serious injury). ### (c) Labels and sentences One of the objections to the present law of homicide is that the mandatory penalty of life imprisonment applies to too large a number of cases, on account of the wide definition of murder. The Report now recommends a broader form of murder 1 that encompasses cases of killing with intent to do serious injury coupled with awareness of a significant/serious risk of causing death. Probably that will not greatly reduce the number of killings to which the mandatory penalty applies, since it will exclude chiefly cases where the serious injury intended would not normally be life-threatening. Suggestions of a different label for the middle tier, such as grave or culpable homicide, have not moved the Commission. One may grant the Commission its argument that the current law is too generous to some reckless killings, and that such cases should be placed one tier below the highest category; but the argument put forward is that the culpability in these cases is so high that manslaughter is an inadequate label, not that they justify classification as “murder”. The Commission's view is that the sentence mitigation principle is more important here than the use of the label "murder": partial defenses operate solely in murder cases, because it is the only offence with a mandatory penalty. ## 3. The duress recommendations Another difficult part of this demanding project is what to do about duress. There is general agreement that the current law, barring duress as a defense or partial defense to murder, is unsatisfactory. The Commission therefore reviewed the issue as a matter of principle and changed its position, recommending that duress be available as a complete defense to murder 1, murder 2 and manslaughter, provided (and here is a dose of pragmatism) that the burden of proof lies on the defendant. The discussion of the proper place of duress is, in large part, measured and principled. The Commission argues that duress should not be aligned with provocation and diminished responsibility, recognizing that "some instances of duress come close to being a justification for killing rather than an excuse." General, analogies with self-defense (as a complete defense, albeit a justification) are therefore found more attractive than comparisons with the partial defenses. This leads the Commission to insist that the threat must be believed to be life-threatening, and that D's belief that the threat has been made must be based on reasonable grounds. The Commission's argument that the reasonableness requirement is right because the duressee usually has “time to reflect" does not convince; and its claims about the relative difficulties of proving the qualifying conditions of duress are inadequately grounded. Difficulty of proof should not be determinative, and proper attention should be paid to the similar problems of the defendant, not least where it is one person's word against another. The Commission cites the risk of concoction, particularly in the context of organised crime; this is a general risk with defenses, and in duress there are already strong restrictions for those involved in criminal enterprises with others. But diminished responsibility cases depend on medical evidence, and the arguments for reversing the burden of proof are strongly contestable, while the "public protection" rationale used in suicide pact cases should not, of itself, be sufficient to justify convicting someone of murder when there is reasonable doubt about guilt. ## 4. Pragmatism and principle Reform of the criminal law is unavoidably political, and reform of homicide law is essentially political. But, in the hope that the present or a subsequent government does take up the issue, the Commission has undoubtedly tried to present a package that is pragmatic and that members of the judiciary think workable. A three-tier structure for homicide law, with a 2-5-2 formation of heads of liability, is preferable to the current law's reliance on the two offenses of murder and manslaughter. There is the risk of split verdicts and more generally of confusing juries, and also the abiding problem of providing the judge with a clear factual basis for sentencing. To take full account of the practical implications would require consideration of self-defense as a defense to murder 1 and to murder 2 and the role of intoxication as a defense to murder 1 and to at least the first head of murder 2. The most significant change from the consultation paper is the widening of the ambit of murder 1: given the strong arguments of principle adduced in the consultation paper for restricting murder 1 to cases of an intent to kill, the change is introduced on the basis that it creates "a greater measure of consensus". There will come a time, however, when this and other threads will need to be drawn together. The second stage of the review of homicide law is to be a public consultation by the government, and that should probably focus on the same issues. Sentencers have the task of determining the relativities between these offences, and if there is still an aspiration to produce a criminal code, all of them ought to have their place in it. No doubt pragmatism indicates that the subject-matter of this Report should be dealt with first, but at some stage the interrelationships should be considered in principle and in practice. Goals such as maximum certainty and clarity are a vital part of the rule of law, insofar as they conduce to predictability, consistency and accountability in decision-making. ## Footnotes 1. Law Com.No.304 (HC30, November 2006), available at www.lawcom.gov.uk (hereinafter Report). See Editorial [2007] Crim. L.R. 107, and J. Rogers (2007) 157 N.L.J. 48. 2. LCCP 177 (November 2005), available at www.lawcom.gov.uk (hereinafter LCCP 177). 3. Report, 1.7. 4. Editorial at [2006] Crim. L.R. 187; W. Wilson, "The Structure of Criminal Homicide" [2006] Crim. L.R. 471; A. Norrie, "Between Orthodox Subjectivism and Moral Contextualism: Intention and the Consultation Paper" [2006] Crim. L.R. 486; G.R. Sullivan, “Complicity for First Degree Murder and Complicity in an Unlawful Killing" [2006] Crim. L.R. 502; O. Quick and C. Wells, "Getting Tough with Defences" [2006] Crim. L.R. 514. 5. LCCP 177, 2.13-2.15 and elsewhere. 6. House of Lords Select Committee on Murder and Life Imprisonment (the Nathan Committee), HL Paper 78 of 1988-89; Law Com. No.177, A Criminal Code for England and Wales (1989). 7. An argument advanced strongly by William Wilson: see fn.4 above, and his “Murder and the Structure of Homicide" in A. Ashworth and B. Mitchell (eds), Rethinking English Homicide Law (2000). 8. Report, 3.27. 9. V. Tadros, "The Homicide Ladder" (2006) 69 M.L.R. 601. 10. Nedrick (1986) 83 Cr.App.R. 267 11. Woollin [1999] A.C. 82. 12. Report, 3.21. Note that this definition of intention will also apply to the first two heads of murder 2, discussed in 2(a) and 2(b) below. As Ian Dennis pointed out to me, no such latitude is left by s.66(3)(a) of the International Criminal Court Act 2001, which provides that a person has intention in relation to a consequence if he means to cause it or is aware that it will occur in the ordinary course of events. 13. In LCCP 177, 4.47-4.62, the suggestion was to add a clause as follows--"Proviso: a person is not to be deemed to have intended any result which it was his or her specific purpose to avoid." The Report does not say what difficulties that would cause. 14. As discussed by Alan Norrie, fn.4 above, at pp.495-499. 15. These words relate only to murder 2, and are followed (Report, 2.93) by the observation that "the judge will reflect the degree of harm actually intended in the sentence passed"--whereas in murder 1, the mandatory penalty applies. 16. The JSB Specimen Direction on Intention states that it is “usual but not necessarily essential" to put the adverb "really" before “serious”. Should this apply to the recommended definitions of murder 1 and murder 2? 17. Compare Report, 2.88-2.94, with LCCP 177, 3.115-3.120 and Law Com. No.218, Legislating the Criminal Code: Offences Against the Person and General Principles (1993), 15.1-15.31. 18. See, more fully, LCCP 177, 3.33-3.39, 3.60-3.147. 19. cf. Criminal Law Revision Committee, 14th Report: Offences Against the Person (1980), para.31; Ashworth, Principles of Criminal Law (5th edn, 2006), p.260. 20. Report, 3.40. The Commission aims for consistency of terminology on this point, so it also requires a “serious risk of causing some injury” as a component of criminal act manslaughter (3.49). 21. See Criminal Justice Act 2003, ss.225-229, as interpreted in Lang [2006] 2Cr.App.R.(S.) 3 at [17], where Rose L.J. (admittedly in a slightly different context) held that significant risk is “a higher threshold than the mere possibility of occurrence" and means (quoting the Oxford Dictionary) “noteworthy, of considerable amount or importance." 22. Report, 3.36. 23. Perhaps in parallel with the objective element in recklessness: see, e.g. Smith and Hogan, Criminal Law (11th edn, 2005, by D. Ormerod), p.102 and, in this specific context, Tadros, above, fn.8, pp.609-611. 24. Report, 2.60-2.69. 25. See Norrie, above, fn.4, at pp.493-495, although he would prefer to reduce reliance on intention as a delineator. The Commission regards the "moral equivalence" point as important, partly because it would no longer require judges to distinguish (when setting the minimum term for murder 1) between those who intend to kill and those who fall under the second head (Report, 2.68). 26. There is a sixth possible head: the Report recommends that duress should be a complete defence to murder 1, but raises the possibility that provision may be made for an imperfect defence of duress to operate as a partial defence that reduces murder 1 to murder 2: see 6.66-6.69. 27. On this, the Report includes two strange paragraphs (2.79-2.80) arguing that the GBH rule is compatible with "the so-called correspondence principle" because in almost all cases an intent to do serious harm “will have made D's death a foreseeable consequence." 28. Report, 3.48, in another context. 29. Report, 1.24 and 2.97. 30. See J. Rogers, “The LawCommission's Proposed Restructuring of the Law of Homicide" [2006] J.C.L. 223 at pp.238-239, making a similar point. 31. Report, 1.31. Cf. also 2.101, where the Commission refers to "a middle tier offence between murder and manslaughter.” 32. See also Quick and Wells, above, fn.4, p.516, and Tadros, above, fn.8, pp.614-615. 33. The Commission states its expectation that "guidelines for sentencing in second degree murder cases will be set down by Parliament as part of any reforms to the law" (Report, 1.61), but it is not clear why this should be so. 34. Report, 2.147. In relation to the controversy over whether the partial defences should apply to the other two forms of murder 2, reducing them to manslaughter, it should be noted that the Commission shows no reluctance to allow infanticide as a defence to both murder 1 and murder 2: Report, 8.42. 35. See the article by Richard Taylor, below. 36. In Pt 5 of this Report, and more fully in Law Com. No.290, Partial Defences to Murder (2004). 37. See also W. Wilson, above, fn.4, pp.481-483. 38. Report, 2.141-2.145. 39. Report, 2.44. 40. Report, 6.1. 41. This reverts largely to the approach taken by the Commission in 1993: see Law Com. No.218, above, fn.16, critically reviewed by J. Horder, “Occupying the Moral High Ground? The Law Commission on Duress" [1994] Crim. L.R. 334. 42. Report, 6.45. 43. Report, 6.61; cf. also 6.48 and, more generally, Ashworth, Principles of Criminal Law (5th edn, 2006), Ch.4.9. 44. In the decision known as Hasan or as Z [2005] UKHL 22; [2005] 2 A.C. 467. 45. (1982) 74 Cr.App.R. 235. 46. Report, 6.79. 47. Report, 6.104. 48. See fn.42 above, per Lord Bingham at [28]. 49. Cf. the forceful argument by Horder, above, fn 41, pp.335-337. 50. Lambert [2002] 2 A.C. 545. 51. A. Ashworth, "Four Threats to the Presumption of Innocence" (2006) 10 E. & P. 241 at pp.267-268; see also I. Dennis, "Reverse Onuses and the Presumption of Innocence: the Search for Principle" [2005] Crim. L.R. 901 at pp.914-916. 52. Report, 6.107. 53. The plight of the young and vulnerable was a significant argument in the consultation paper, and is recalled in the Report at 6.46, 6.55 and 6.142. 54. Report, 6.109. 55. Report, 6.126-6.128. 56. For discussion and references, see Ashworth, above, fn.51, pp.263-266. 57. [2006] 2 Cr.App.R. 11; [2006] Crim. L.R. 911. 58. [2006] 2 Cr.App.R. 11 at [27]. 59. cf. R.Taylor, "JuryUnanimity in Homicide" [2001] Crim. L.R. 283 and J. Rogers, above, fn.30, 229-232, with the relevant paragraphs in the Report, 2.117-2.121 and 2.132-2.145. 60. cf. Report, 2.142, with 2.68 and fn.25 above. 61. Adapting Acott [1997] 2 Cr.App.R. 94. 62. These complications are well illustrated by the survey reported in Appendix C to the Report, "Defences to Murder", by B. Mitchell and S. Cunningham. 63. Appendix A at A.4. 64. Report, 1.2-1.6. 65. Such offences have generally been ranked low on the scale by members of the public: see B. Mitchell, “Public Perceptions of Homicide and Criminal Justice" (1998) 38 B.J.Crim. 453. 66. These include causing death by careless driving while intoxicated and (since the Road Safety Act 2006) causing death by careless driving and causing death when driving while uninsured, unlicensed or disqualified. 67. Ashworth, Principles of Criminal Law (5th edn, 2006), p.59. 68. Report 1.10. 69. Report, 2.4. 70. Report, 2.25. See also the magnificent quotation at 1.71. I have aimed to provide an accurate and well-structured conversion of the text while maintaining the integrity of the information.