Homicide in Criminal Law

A Research Companion

Alan Reed, Michael Bohlander, Alan Reed, Michael Bohlander

• Publisher: Routledge
• Year: 2018
• ISBN:
  9781351016292
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

This volume presents a leading contribution to the substantive arena relating to homicide in the criminal law. In broad terms, the ambit of homicide standardisations in extant law is contestable and opaque. This book provides a logical template to focus the debate. The overall concept addresses three specific elements within this arena, embracing an overarching synergy between them. This edifice engages in an examination of UK provisions, and in contrasting these provisions against alternative domestic jurisdictions as well as comparative contributions addressing a particularised research grid for content. The comparative chapters provide a wider background of how other legal systems treat a variety of specialised issues relating to homicide in the context of the criminal law.

The debate in relation to homicide continues apace for academics, practitioners and within the criminal justice system. Having expert descriptions of the wider issues surrounding the particular discussion and of other legal systems' approaches serves to stimulate and inform that debate. This collection will be a major source of reference for future discussion.

Part I

1 The mandatory sentence and the case for second degree murder

Jeremy Horder¹

Introduction

This chapter will review the case for having a category of second degree murder in English law. The introduction of a ‘homicide ladder’ was recommended by the Law Commission in 2006.² The ladder involved reform dividing the general offences of homicide into three rungs or categories: first degree murder, second degree murder and manslaughter. Although generally welcomed by consultees, the proposal for the ladder system did not find favour with Government and is not currently on the law reform agenda.³ Should reformers accept the current two-tier framework consisting of murder and manslaughter, and concentrate their efforts on working to improve the definitions of these two offences? The arguments for and against an affirmative answer are quite evenly balanced, but I believe that the case for a three-tier law of homicide is still strong. Here I will compare the merits of introducing a second degree murder category with alternative ways of reducing the scope to apply the mandatory life sentence, through an examination of the English historical background to the issues. In particular, I consider an important source somewhat neglected by criminal lawyers, the Report of the Commission on Capital Punishment of 1866.

Overview: how problems may arise

English law, in common with many other jurisdictions, seeks to bolster the moral power of the message it conveys through the law of homicide by the appropriation of moral categories or labels (such as ‘murder’) to describe forbidden kinds of wrongdoing. This is an example of law’s dependence on morality. Conversely, morality may be dependent on law in this context.⁴ The law’s ability to provide clear and authoritative definitions of wrongdoing is an example of this. That the law of murder settles what murder is, in a way that (ex hypothesi) commands or has the potential to command wide acceptance, may itself provide indirect support for the moral obligation not to kill. It may, for example, prevent the vagueness of the moral concept undermining people’s confidence in it as a source of distinct and special obligations.⁵ The law of murder also performs important bureaucratic functions, functions connected to the state’s duty to uphold and promote certain virtues, such as justice. These functions include the making of provision for trial and conviction, and the conferral of sentencing powers on judges. How might a category of second degree murder fit into this picture? As a legal category, second degree ‘murder’ relies in part on the moral understanding of murder for its legitimacy. So, what falls within the category should, notwithstanding the existence of a category of first degree murder lying above it, also reflect in the right measure what Feinberg calls, ‘the nontechnical sense [of murder] – “the most heinous kind of unjustified killing generally (wanton, barbarous, etc.) whether lawful or not”’.⁶ In that regard, there is bound to be disagreement over what should fall within the category of second degree murder.⁷ However, few doubt that such a category is in principle capable of meeting this demand. As we will see in the next section, it does so perfectly satisfactorily in many jurisdictions.

The real difficulty with a category of second degree murder lies in the way that it may help, or hinder, the state’s duty to secure justice in homicide cases. On the one hand, it appears to provide a means by which the law’s bureaucratic functions – the provision of trial and punishment – could be performed in a more fine-grained way, in a legal system in which the mandatory life penalty remained for ‘first degree’ murder. There is the potential for greater moral sophistication in a jury verdict that reflects a choice between three different grades of homicide offence. A related point, at the sentencing stage, is that an over-inclusive law of manslaughter may leave judges with no secure factual basis for sentencing.⁸ A judge may have no very obvious way of settling the question whether, for example, the defendant was convicted of manslaughter on the basis that there was no intent to cause serious harm, or whether the conviction reflected the jury’s view that the defendant, in intentionally killing, lost self-control in exceptional circumstances or was suffering from diminished responsibility.⁹ Whilst the introduction of a category of second degree murder would not rid the law of such difficulties – far from it – it might reduce them in number.

However, such a gain, in point of the ability to do justice, must be weighed against a potential loss. More choice is not necessarily better than less. The greater the number of possible verdicts, the greater the scope for jury disagreement over the right outcome, and hence the greater the scope for inconclusive trials.¹⁰ This problem is liable to be aggravated in trials involving multiple defendants, where the defendants are making different and perhaps incompatible claims, on different bases, about the nature of their liability (if any liability is conceded at all). Consider this hypothetical example, as it might arise under a law of homicide shaped by the Law Commission’s recommendations for reform:¹¹

D1, D2 and D3 are charged with first degree murder, arising out of the stabbing of V through the heart in the course of a melée. D1 claims that V caused him to lose self-control and encourage D2 to stab V, which D1 says D2 did, but that he (D1) did not intend D2 to do serious harm to V. D2 claims it was D3 who stabbed V, that D1 cold-bloodedly encouraged D3 to kill V, that D1 is blaming him (D2) for the stabbing out of spite, and that he (D2) had no idea that an attack of any kind on V was planned. D3 claims to have driven D1 and D2 to the scene with no knowledge of their plans, beyond an intention to fight.

On such facts, even with no more than verdicts of murder, manslaughter and outright acquittal to consider, the route to verdict might not be an easy one for the jury without independent evidence bearing on who played which role in the offence, or showing the defendants were all in it together. It might be hard to see what benefit is to be derived from adding a further possible verdict into the mix, a verdict of second degree murder. Such a possibility might even make a difficult situation worse, in point of justice.

The situation is aggravated, as a result of the highly regrettable decision of the House of Lords in Coutts.¹² In that case, a decision of a strong Court of Appeal led by the Lord Chief Justice was overturned by the House of Lords. The House of Lords held that the public interest in the administration of justice requires the trial judge, irrespective of the wishes of Counsel, to leave to the jury, ‘any obvious alternative [verdict] which there is evidence to support’.¹³ So, in a case charged as first degree murder with facts such as those in the example just given, it would not be open to the trial judge to acquiesce in an agreement between prosecution and defence to run the trial on the simple basis that one or more of the defendants was guilty (other than in relation to D2’s plea of loss of self-control¹⁴) either of first degree murder or of manslaughter, or was not guilty of a homicide offence. The trial judge would be obliged to introduce the possibility of a second degree murder verdict, in relation to each and every defendant, alongside possible verdicts of first degree murder, manslaughter and outright acquittal.

In spite of these formidable difficulties, it is still possible to justify the introduction of the new two-tier murder structure, comprised of first degree and second degree murder. However, it would probably be undesirable to do so exactly in accordance with the Law Commission’s recommendations, for fear of aggravating the problem of jury disagreement on the factual basis for verdict. That issue will be addressed in the concluding section of this chapter. If the mandatory life penalty for murder is to remain, the introduction of a second degree murder category is generally to be preferred, as a way of ameliorating or finessing the law, to a form of individualised ‘discretionary assessment’ in which the judge and the jury can decide in a particular case that, in the circumstances, the life penalty should not apply.¹⁵ What has not been appreciated by would-be reformers is that we have been here before. The Law Commission’s Consultation Paper on homicide contained a good deal of historical background on the law.¹⁶ Regrettably, though, it did not cover previous attempts to introduce a category of second degree murder into English Law, or examine older proposals for forms of individualised discretionary assessment. There is much to learn from these historic debates.

Second degree murder and law reform in Victorian England

The Victorian period saw lively debate over the future of the criminal law, through Parliamentary reform. As early as 1843, law reformer Charles HB Ker had expressed the view that, ‘9/10th of the Criminal Law is already Statute Law’.¹⁷ However, the scattered nature of the statutory material meant that it was commonly held at that time, even by those opposed to codification generally, that the criminal law was best suited to codification.¹⁸ Full codification of the criminal law was, though, decisively opposed by the judges. This meant that the consolidations of 1861 were in large measure all the reformers had to show for their efforts. The failure of codification has overshadowed the vigour and range of the debate over reform at that time, perhaps especially in the case of murder.¹⁹

The principal issue was the possible abolition of the death penalty, a subject voted on in the House of Commons no less than eight times between 1840 and 1869.²⁰ Abolition in the case of murder (as well as for other offences) was strongly advocated by many influential Parliamentarians and others, from at least the 1840s onwards, but reform efforts in the case of murder were successful only in ending public executions in 1868.²¹ The death penalty for murder remained. What is more, the sharpening of the issues through debate meant that the link between the death penalty and the crime of murder became firmly underpinned by the honing of a two-pronged argument, an argument that would sustain the link ...