Towards a New Homicide Act

ON RUMMAGING THROUGH the debris of voluminous papers in which the late Professor Terence Morris and I had ven­tured to articulate reasons for a statutory revision of the law of murder (constructed 400 years ago by Sir Edward Coke and still operative by the common law), I came across a document which together we submitted to the Law Commission in March 2006.

In the Criminal Justice and Courts Bill, which had a second read­ing on 30 June 2014,^{[53] [54] the starting point for sentencing the murderer of a police or prison officer in the course of their duty has been raised to the status of ‘whole life’.}

Introductory

We are grateful to the Law Commission for its comments on the proposal in our book, With Malice Aforethought: A Study of the Crime and Punishment for Homicide^[55] for a single criminal homicide offence to replace the crimes of murder and manslaughter, even though our pro­posal does not fall within the restricted terms of reference given to the Law Commission by the Home Secretary. Accordingly, we have taken it upon ourselves in the following submission to answer the Law Commis­sion’s rejection of our proposal. We trust that the Law Commission will, in the light of this response, feel able to include in its final report to the Home Secretary a further comment on our proposal.

This document, therefore, deals with three topics only:

(a) the reliance of the Law Commission on the notion of the sanctity of life to sustain a contemporary law of murder and manslaughter;

(b) a rejoinder to the Law Commission’s rejection of a single criminal homicide in the manner of the Kilbrandon formula; and

(c) the persistence of the Government to retain the mandatory penalty for murder.

The concept of the ‘sanctity of life' in the context of law

1. Consultation Paper No 177 refers at paragraph 2.20 to the concept of the ‘sanctity of life’, a term used in the context of the law of murder by the Criminal Law Revision Committee (CLRC) in its report of 1980.^[56] The word ‘sanctity’ derives from the Latin sanctus, generally translated as ‘holy’, and the term ‘sanctity of life’ has therefore strong religious con­notations.

2. We would argue strongly, therefore, that terminology which employs concepts such as ‘sanctity’ is unhelpful and ought to form no part of the jurisprudence of homicide, not least since the matter of the inviolability of life is better accommodated by reference to Article 2(1) of the European Convention of Human Rights which is now incorporated within domes­tic law. Article 2 initially provided that the right of everyone to life shall be protected by law and that none shall be deprived of it intentionally save in the execution of sentence of a court following conviction for a crime for which death is the penalty prescribed by law. Effectively this is no longer applicable since capital punishment has been abolished within the various jurisdictions of the Convention signatories as a consequence of the Sixth and Thirteenth Protocols. Article 2, however, sets out the conditions in which deprivation of life constitutes a contravention of the Article with the proviso that this was, ab initio, a limited as distinct from an absolute right.

3. The obligation of the State under Article 2(1) extends beyond its pri­mary duty to secure the individual’s right to life, by requiring the State to put in place effective provision in criminal law to deter the commis­sion of offences against the person.^[58] It further includes the establishment of a criminal justice system which provides for the trial and punishment of those who take life. The nature and extent of the provisions of the criminal law are left to be determined by the individual State.^[59]

4. We would strongly argue that the term ‘sanctity of life' be no longer employed in discussion of reform of the law of homicide, and the term ‘right to life' be substituted: it has a pragmatic (as distinct from theologi­cal) character that can be accepted and readily understood by any reasonable participant in the debate.^[60] For this purpose it can be regarded as an absolute right identified in proactive terms that contrast with ‘sanctity of life' which at best is no more than ambiguously descriptive.

5. There are further arguments against the use of the term ‘sanctity of life' in the context of the law of homicide. In paragraph 2.23 the Consultation Paper makes reference to the distinction to be drawn between intentional and accidental or careless killing. In our view, while it is entirely logical to recognise that homicidal events encompass a very wide range of culpability and intention, the outcome of such events is that a life has been lost, whether by intent, accident or failure of duty to care. It is a simple and incontrovertible matter of fact that the dead are dead, however death may have come about.

6. It is this which is central in the minds of those who have been bereaved, and upon which the culpability or intention of the person responsible can have only a bearing, usually to accentuate it in propor­tion to the degree of recklessness, irresponsibility or evidently malicious intent. It would be difficult to maintain that the grief of a parent whose child has died under the wheels of a drunken driver is generically dis­tinct from that of a parent whose child has been killed by a paedophile. Whatever the circumstances, the inalienable right to life has been violated, or, to employ the term that the authors of the document would evidently prefer, the sanctity of that life has been profaned. The quality of the life that has been lost is entirely sui generis, and is no way contin­gent upon the nature of the killing by which it has been prematurely terminated, although doubtless the circumstance attending the event may aggravate or mitigate the sense of grief. One ought not to overlook the variable response of forgiveness - or lack of it - by secondary vic­tims.

7. In this context we note that paragraph 2.26 cites Exodus 20:2-17 as ‘Do no murder'. The Authorised (‘King James') Version of the Bible pub­lished in 1611 does not use the word ‘murder', but the broader term ‘kill', as does the Douai Version of 1609 which is a direct translation of the Latin Vulgate. In Latin there is no word corresponding ‘to murder' that is distinct from the word ‘to kill'.^[61] ‘Kill’ is also used by the Revised Standard Version in all its three editions of 1881-5, 1901 and 1952. The Ecumenical Edition of the RSV, published in 1973 and accepted by Roman Catholic scholars, similarly uses the word ‘kill’. The New International Version published in Chicago in 1973 appears alone in employing the term ‘murder’ in this text from Exodus. Given that by the end of the 16th century the term ‘murder’ as distinct from manslaughter had emerged within the Common Law,^{[62] [63] it is not unimportant to note that Biblical scholarship, both Anglican11 and Roman Catholic, remained consistent with the approach of the mediaeval jurists for whom the dis­tinction was much less apparent.}

8. Although in paragraph 2.28 there is a quotation from Finnis, Boyle and Grisez^[64] in which the Law Commission cite Exodus 20:13 as ‘Do no murder’, they go on with their analysis of its meaning by reference not to the word ‘murder’, but ‘kill’ or ‘killing’, no fewer than four times in a sin­gle paragraph. One must conclude either that this is simply a case of ter­minological inexactitude, or that they acknowledge murder to be no more than a synonym for unlawful killing. It is significant that they also, within this same passage, refer to ‘reckless homicide’. The essence of their argu­ment, however, would seem to be to draw a distinction between reckless­ness, however blameworthy, and the deliberate killing of the innocent.

9. Again, this raises problems, for if we are to pursue the argument that the worst kind of homicide consists of deliberate killing, that must extend beyond situations involving innocent victims to those where that label cannot possibly be attached. Let us suppose that an armed police officer, called to a house, finds a man who has just killed his wife and is standing over her body holding a golf club. The officer shoots the suspect through the head, killing him instantly.^[65] The circumstantial evidence points to the shooting having been deliberate, and in circumstances in which the disparity in weaponry was self-evidently extreme.^[66] While it could not be said that the suspect so killed was inno­cent, since he had evidently just killed his wife, the police officer would have had no licence to take the suspect's life and could, as the law pres­ently stands, be properly charged with murder. The life thus taken could certainly not be described as that of an innocent man, since he had shortly before clubbed his wife to death and one would need to stretch the concept of ‘sanctity of life' to reason that, notwithstanding the evi­dence of deliberate homicide, that ‘sanctity' was in no way compro­mised.

10. The central issue here is not the ‘sanctity', or otherwise, of the life of the uxoricide, but the violation of his inalienable right to life that his conduct, unlawful and morally reprehensible though it may have been, has in no way affected. Not only is this association of the concept of deliberation with that of innocence a non sequitur, it is also highly mis­leading. ‘Innocence', or indeed any specific characteristic of the victim, is not a necessary element in establishing the criminal guilt of the offender, although such factors are likely to be highly relevant in estab­lishing culpability for the purposes of sentencing.

11. Our fictional example is a clear case in which the right to life, under­written by Article 2, must be the paramount consideration, notwith­standing that in the circumstances the moral desert of the husband might be regarded as negligible. A right is either violated, or it is not. In the 19th century trial of Dudley and Stephens the defendants, who, cast adrift for days after shipwreck and without food or water, had chosen to eat and kill the cabin boy, unsuccessfully ran the defence of ‘necessity'.^[67] It is instructive in its demonstration that even in a situation as grave as theirs, the right to life enjoyed by the cabin boy was inalienable.^[68] (Under the Law Commission's proposal Dudley and Stephens would be guilty of first degree murder.)

12. In 2.30 it is stated that the provisional view of the Law Commission is that the connection between the law of murder and the view that life is sacrosanct is best expressed through the creation of the crime of ‘first degree murder'. The proposition that ‘life is sacrosanct' needs to be more closely examined in the ways in which the law has considered the tak­ing of human life. The mediaeval notion of what were termed the ‘petty treasons' is instructive in demonstrating that the lives of some members of society were regarded as more important than those of others. The essence of such treasons consisted of a failure of duty owed to one deemed a social superior, primarily within the framework of feudal obli- gation.1⁷ This graduated hierarchy of superiority among homicide vic­tims is reflected in Coke's analysis of what he terms ‘malice implied'. Thus: ‘As if a magistrate or known officer, or any other that hath lawful warrant, and doing or offering to do his office, or to execute his warrant, is slain, this is murder, by malice implied by law.'¹⁸ The notion of there being special categories of homicide victims, largely concentrated among those responsible for law enforcement, was much in evidence in the var­ious proposals for amending the law of homicide in the latter part of the 19th century and was very much in evidence in the Homicide Act 1957 in which the killing of a police or prison officer was a specific instance of a capital murder.¹⁹ Why fire service and ambulance personnel were considered unworthy of such putative protection has never been satis­factorily explained.

13. Nor is it the case that in the workplace human life has always been regarded as sacrosanct. Throughout the 19th century the mortality of those employed in the construction industry - mining, quarrying, fish­ing and shipping - was extremely high. In the merchant shipping indus­try it was not unknown before 18742⁰ for unscrupulous owners to send vessels to sea that were known to be unseaworthy, risking the lives of their crews which were regarded as expendable, while in the knowledge that their cargoes were insured. 19th century Blue Books are replete with evidence that the lives of workers were frequently regarded as of little account, not least when the supply of labour was plentiful. The practice subsequently initiated after fatal industrial incidents, of bring­ing criminal prosecutions under the Factory Acts rather than for man­slaughter, continued throughout the 20th century and remains essentially unchanged. The reason for this is undoubtedly the extreme difficulty in prosecuting corporate manslaughter, but the penalties are manifestly less onerous, both in quantum and social stigma, than those possible on conviction for a homicidal offence. The effect is to send a signal that no matter what the magnitude of failure in respect of a duty of care, the loss of life is not so great a matter as it would have been had the penalty been one imposed upon a conviction for murder or manslaughter.

¹⁷ See: T Plucknett, A Concise History of the Common Law, 4th edn (London, Butterworth, 1948) 418.

¹⁸ Coke, Institutes vol 3, 51-52.

¹⁹ One might note that the slaying of judges and magistrates in the execution of their office was no longer a capital matter such as Coke would have most certainly regarded as an instance of ‘malice implied by law'.

²⁰ The Act piloted by Samuel Plimsoll MP.

14. By the same token, the hiving-off of the offence of causing death by dangerous driving by the Road Traffic Act 1956, providing substantially lesser penalties than those available following conviction for manslaugh­ter, has sent a signal that to kill a person with a mechanically propelled vehicle upon a public road is not as serious as killing a passenger by driving a train through a signal set at danger, or, indeed, in the course of any other system of public carriage.

15. Our point, therefore, is a very simple one. If human life is regarded as ‘sacrosanct’, the evidence both of history and the patterns of prosecu­tion suggest that, to adapt Orwell’s phrase, the law regards the lives of some people as more sacrosanct than those of others. That, in our view, is a consequential defect of the disarray in the present law, which we maintain is remediable by returning to a single crime of criminal homi- cide.^[69]

The argument for a return to a single offence of criminal homicide: our rejoinder to its rejection

16. Admitting that murder, though co-extensive with deliberate killing, has not hitherto been confined to it is a recognition of what we have elsewhere defined as the ‘penal premium’, deriving from Coke’s notion of constructive malice.^[70] The anxiety of the Criminal Law Revision Committee three decades ago that to abolish the separate crime of mur­der and with it the mandatory sentence of life imprisonment would be to give a public signal that murder was no longer a ‘specially or uniquely grave crime’ was understandable, given the circumstances of the time when capital punishment had only recently been abolished.

17. In its Fourteenth Report CLRC noted that, in response to its Working Paper of September 1976 in which it invited attention to the Kilbrandon proposal, the Law Commission alone supported it.^[71] The criticism of the present Consultation Paper is directed towards our advocacy of it. While it is, of course, accepted that the present Law Commissioners cannot be bound by the conclusions of their predecessors, we cannot fail to note that in rejecting our advocacy of the Kilbrandon Formula, no mention is made of the fact that at the time the CLRC was rejecting the Kilbrandon Formula, the Law Commission was supporting the idea. Nevertheless, having now had the opportunity of reading the comments of the Law Commission in 197824 upon the Criminal Law Revision Committee’s Working Paper on Offences Against the Person (which run to some 24 pages) we are somewhat puzzled as to why the present Consultation Paper, in rejecting the Kilbrandon Formula, makes no reference to its support by the Law Commission of the time.

18. Nevertheless, that the disappearance of ‘murder’ as a discrete cate­gory of homicide might be interpreted as a ‘signal’ that the deliberate killing of another is no longer to be considered the gravest of crimes is a point that cannot be ignored. But, as an argument against what we term the Kilbrandon Formula, we consider it defective. By what reasoning can deliberation be demonstrated to be the source of the ‘unique gravity’ of the crime of deliberate killing? As the law currently stands, to prove murder the prosecution needs to prove intention to cause serious harm, notwithstanding that the defendant may stoutly maintain that he had no intention to exceed that objective and that that outcome was one he would bitterly regret for the rest of his life. Deliberation can be shown to be present in other homicides where death was not the outcome sought by the defendant, including those now charged as murder, though the intention extends no further than to do serious harm and which the Commissioners propose should be defined as murders in the second degree. Deliberation is undoubtedly indicative of a high degree of moral culpability and such killings can give rise to feelings of the greatest revulsion. But what of instances of reckless disregard for the welfare of others such as the terrorist who plants a bomb in a public building, whether a specific duty of care is owed to them or not? What of the con­duct of the aggressive drunken driver who forces an oncoming vehicle off the road after having deliberately overtaken other traffic, with the result that its occupants are killed? While it cannot be said that he delib­erately killed them, not least since he had no foreknowledge of their presence, their right to life has been violated by his unlawful conduct. To drive whilst intoxicated is to invite moral opprobrium and, when combined with reckless irresponsibility and aggression behind the wheel, must surely invite substantial amplification of that opprobrium. If, on conviction, the offender demonstrates remorse, a wish that he had never become the author of his own penal misfortune, rather than genu­ine contrition manifested in a desire to express a sincere regret at the enormity of the consequences of his conduct, then surely the crime merits the description of substantially grave, if it is not uniquely so.

24 We are grateful to the Law Commission for having furnished us with material upon our request. The Law Commission’s response to the CLRC was almost certainly drafted by Mr Derek Hodgson QC (later Mr Justice Hodgson). The Chairman of the Law Commission at the time was Mr Justice Cooke.

19. We would underscore this point by saying that it was the statutory separation of killing by the drivers of mechanically propelled vehicles from that part of the general corpus of homicide known as manslaughter by the Road Traffic Act 1956 and its (initial) maximum penalty of 5 years' imprisonment that has led to this category of crime being reduced in its perceived social importance. By no means all road deaths result in this being charged at all. Indeed, in some instances it is now largely a matter for determining damages in tort, with the element of criminality being marginalised to what the relatives of the dead frequently perceive to be derisory penalties.

20. In referring to unlawful deaths arising from what we would term road crimes^[72] we recognise that the offence of causing death encom­passed in road traffic legislation is outwith the present remit of the Law Commission. That, in our view, is an arbitrary exclusion for which the Law Commission bears no responsibility but which is most unhelpful to the development of an intellectually credible law of homicide.^[73] The number of deaths arising from road crimes is not negligible and exceeds those deaths that are presently prosecuted as murder or manslaughter. Nor is there any evidence to suggest that the social consequences of such deaths are less for those who are bereaved, other than that relatives fre­quently believe that both the substantive law and its penal outcome mar­ginalise both their suffering and the value of the lives that have been lost.

21. Therefore, though Government has excluded certain categories of homicide from the present review, we maintain that it is important to demonstrate how such exclusion must inevitably distort the outcome of the debate. The deliberate exception of the issue of abolition from the terms of reference of the Royal Commission on Capital Punishment (1949-1953) introduced a not dissimilar element of unrealism into its deliberations. We make no apology, therefore, in underscoring our argu­ment that to pursue the notion that a new Homicide Act cannot ignore a whole range of homicidal events without reinforcing that condition which Lord Mustill described as ‘permeated by anomaly, fiction, misno­mer and obsolete reasoning'.^[74]

22. The conduct of the aggressive drunken driver^[75] described above surely exemplifies the variety of reckless indifference as to causing death^[76] that the Law Commission’s proposals have in mind. What is cru­cial is that the essence of the offence resides in the ‘reckless indiffer­ence’, not the fact that the instrument of death was a motor vehicle - a potentially lethal weapon - or that the result came about as a conse­quence of either intoxication or the manner of the driving. These are circumstantially descriptive of the criminal event. Other kinds of aggres­sive driving, such as ‘tailgating’ and ‘undertaking’ on motorways when vehicles are travelling at high speed, may equally demonstrate a ‘reck­less indifference’ to causing death. On what basis would such conduct, when it resulted in death, continue to be charged as causing death by dangerous driving when it patently meets the criteria for the new offence of second degree murder?

23. We find additional difficulty in instances in which the killing has come about ‘... through gross negligence as to causing death, or through a criminal act intended to cause injury, or where there was recklessness as to causing injury’.^[77] The Law Commission proposes that the offence in these circumstances should be that of manslaughter. Let us consider the following example which demonstrates the complexities involved. D, who is driving a large white van in lane 3 of a busy 3 lane motorway and at a speed in excess of 70mph, comes up behind a small saloon car driven by V who is observing the speed limit whilst legitimately and safely overtaking slower moving goods vehicles in lanes 2 and 1 on his near side. D flashes his vehicle headlights on the rear of V’s car, and when V does not increase speed D approaches to within a few feet of V’s car such that no safety gap remains. D then notices a gap between the goods vehicles in lane 2 and, cutting in to the left, drives alongside V and attempts to overtake from the inside by then cutting in front of V. Misjudging the manoeuvre, he collides with V’s car, forcing it against the central barrier from which it ricochets into the path of following traffic. In the resulting series of multiple collisions three drivers die and a num­ber of others sustain a range of injuries. The van driver is not seriously injured.

24. Presently, a charge of causing death by dangerous driving would seem a likely choice for the prosecution, but manslaughter would not necessarily be excluded. Would these circumstances support a charge of manslaughter per the Law Commission’s proposals? While gross negli­gence would not appear relevant, do the facts nevertheless disclose evidence of ‘a criminal act intended to cause injury'? D's conduct as a driver is entirely criminal, (i) lacking in reasonable consideration for other road users, (ii) driving in excess of the speed limit, (iii) driving dangerously close to the vehicle in front, and additionally so in the course of overtaking on the nearside. It would not, moreover, be unrea­sonable to view his ‘tailgating' as threatening behaviour intended to coerce V into moving out of his path and employing his vehicle as a weapon.^[78] Did D's conduct amount to an assault,^[79] in that V was put in fear, and did that fear, no doubt of being run down from behind, consti­tute an injury? Such would constitute the apprehension of immediate and unlawful violence.^[80] In 1984 Goff LJ (later Lord Goff of Chievely)^[81] in considering the notion of ‘violence' quoted Blackstone:

The law cannot draw the line between different degrees of violence, and therefore prohibits the first and lowest stage of it; every man's per­son being sacred, and no other having a right to meddle with it, in any the slightest manner.^[82]

It might be noted that while Blackstone clearly subscribes to the idea of ‘sanctity of life' he might also be said to acknowledge something of the indivisibility of the principle enshrined in Article 2, namely that no other has ‘a right to meddle with it'. But again, it is difficult to anticipate the nature of the prosecution. Would the van driver, as presently, confi­dently expect the likely charge to be one under the Road Traffic Act, or might he be at risk of being prosecuted for manslaughter under a new Homicide Act for England and Wales?

25. No less important is the general perception that it is the severity of the penalty that is the benchmark against which the gravity of the offence is measured, not the label by which the offence is identified. This is demonstrated across the whole spectrum of statute law and exemplified in the varying level of maximum penalties attaching to particular offences. If, in our lexicon, a criminal homicide is proved and the cir­cumstances of the criminal event disclose not only deliberation but also other aggravating circumstances of the gravest kind, then there would be absolutely no reason why a sentence reflecting those facts would not be available to the court, up to and including imprisonment for life or any other order the court considered necessary in the public interest. The assumption of what is now termed murder into the generic offence of criminal homicide would have no bearing upon the penalty, save to pro­vide the court with the flexibility - and thereby the ability better to serve the public interest - that it is presently denied by the existence of the mandatory penalty of life imprisonment on conviction of murder. Moreover, a strict liability offence, which we are proposing, emits as strong if not a stronger message than liability that requires a specific intent.

26. We turn now to paragraphs 2.32-2.38 in which the document considers our argument for what we term the Kilbrandon Formula. We suggest the following:

a. in important respects our argument has been misunderstood;

b. the fact that what we would consider a return to the single offence of criminal homicide is a proposal that has discernible support within the constituency of judicial opinion places an obligation upon the Commission to expand its contrary argument beyond the seven para­graphs in which it is rejected.

27. We consider that the approval of Victim Support for what is in effect the Kilbrandon Formula in their response to Consultation Paper 173,^[83] Partial Defences, is important, in that it would reduce the adversarial dimension of the criminal trial generated by attempts by the defence to achieve a reduction in the outcome from murder to manslaughter. In our view the defences which seek to reallocate the homicidal event from the category of murder to that of manslaughter are the source of much of the ‘mess' which presently characterises the law of murder. Not least are they a source of difficulty in that such technical reallocation inevitably redefines the character of the conduct in ways which may be an addi­tional source of distress to those who have been bereaved.^[84] Would not the same ingenuity be employed to escape first degree murder in favour of second degree murder, and to escape second degree murder in favour of manslaughter?

28. To be convicted of manslaughter is to suffer less moral opprobrium than to be convicted of murder. To be convicted of causing death by dangerous or drunk driving, with its lower statutory maximum penalty, serves to diminish the mark of opprobrium still further. Indeed, to employ the argument of the CLRC, the effect of the Road Traffic Act 1956, in hiving-off road killing from the general body of manslaughter, notwithstanding a subsequent increase in the maximum penalty, has been to send out a signal that he or she who kills with a mechanically propelled vehicle on a public road commits a crime less serious than a train driver who goes through a signal set at danger or one who kills with a broken glass in a public house brawl. Such offenders remain at risk of receiving a discretionary life sentence. Not only is the law of homicide in a ‘mess'; at the supposed periphery its apparently capricious alloca­tion of penalties of varying severity and social opprobrium to homicides that occur in particular situations such as these serves to diminish pub­lic confidence in the objectivity of the criminal justice system..

29. Thus, pace the argument of the CLRC, which the Law Commission clearly approves in 2.30, if it is indeed the available penalty which sig­nals the degree of opprobrium attaching to the offence, it must by the same token give an indication of the degree of ‘sanctity' attaching to the life that has been lost. Yet it is difficult to accept that the life of one who dies as the outcome of a road crime is somehow less sacred than that of one whose throat is severed with a broken beer glass or one who is shot to death in a gangland killing, simply as a result of the circumstances of the criminal event. ‘Innocence', whether demonstrable or merely puta­tive, is not even an issue. We return, therefore, to underscore our earlier argument, namely, that by defining unlawful homicide as a violation of the right to life enshrined in Article 2, in this respect every life taken in the course of unlawful conduct is, by definition, of equal value.

30. It is stated by the Law Commission in 2.34 that:

If, for Blom-Cooper and Morris, fault is merely a factor to reflect in sentence then that could logically be said to be true of the outcome (the victim's death) as well. Why single out unlawful killing for sepa­rate treatment, when it may purely have been chance that the victim died and the result could have been more or less serious bodily harm done?

31. We confess to some difficulty in following this line of reasoning. In this context we understand ‘fault' as a neutral term to describe no more than liability arising from the conduct of D. The right to life enshrined in Article 2 places an obligation upon State and citizen alike, analogous to a general duty of care, in that the duty to preserve life involves both a range of positive conduct as well as inaction. What happens in criminal homicide is that D has taken the life of V. The nature and circumstances of the criminal event will inevitably vary, but what will remain invaria­ble is the fact that V's right to life has been violated by the conduct of D. By the same token, the circumstances of that conduct will vary in respect of the blameworthiness of the action.

32. Fault is not ‘merely a factor to reflect in sentence'. That is not our contention. It may indeed be the case that it was by chance that the vic­tim died and had this not been so, homicide would not have been at issue. But in homicide, death, by definition, will have occurred. A lesser outcome is irrelevant, save where D is charged with an attempt to kill. The task of the prosecution, in our view, ought to be focused on proof that the death was unlawful and that it was the outcome of the intrinsi­cally unlawful conduct of the offender. Such unlawfulness may consist in a failure of duty to care, recklessness or deliberation - whether merely to inflict harm or cause death. The experience of many trials is that hours, even days or weeks, may be spent in an attempt to determine what was or might have been in the defendant’s mind at the time; whether there was provocation, and if so what tests of its magnitude or expected effect might be applied, whether D was suffering from dimin­ished responsibility and if so, in what did it consist and over what period. The burden placed, not only upon juries in interpreting what may often be a confusing plethora of evidence from expert witnesses brought by the defence and the prosecution, but also upon judges in guiding juries through these forensic thickets, cannot be underesti­mated. How much time and expenditure of resources might be saved by simplifying the task remains to be calculated, but it cannot be incon­siderable.

33. We have considered Professor Robinson’s material in detail,^[85] and in particular his point that the rule that is violated in homicide can be said to be the rule prohibiting unjustifiably harming someone simpliciter. It appears to us that he is affirming the inclusive nature of the prohibition of unjustifiable harm.^[86] The consequence of that infliction of harm will vary from physical injury to death. But it is at the point at which harm is inflicted that the threshold of criminal liability is crossed. Conduct is either criminal or it is not, and the relative seriousness of the act, as defined by its consequences, cannot affect its primary, criminal charac­ter. It would be unjustifiable for a householder to use excessive force against an intruder; likewise, it would be unjustifiable for the house­holder to kill him. Once the boundary between the force necessary to restrain or expel the intruder has been exceeded, the harm becomes unjustifiable. It would be as ‘unjustifiable’ to break a burglar’s leg as to break his neck.^[87]

34. We re-affirm our argument that in criminal homicide it is the right to life that is infringed; a right which is the corollary of membership of civil society and which cannot be modified or qualified, since it is enjoyed by every citizen irrespective of the circumstances in which it has been infringed.

35. Footnote 20 to paragraph 2.34 refers to our definition of criminal homicide in which it is suggested that we distinguish between ‘simply causing serious physical harm to another person in which the various fault elements... are relevant and the crucial fatal result, to which they are not'. Again, we believe this to misunderstand our position.

36. In employing a definition that encompasses an act or omission - an intention to cause serious harm, or the manifestation of recklessness, gross negligence, or failure of corporate management - we seek to iden­tify the necessary circumstances which must be proved to have existed before a death can result in a conviction for criminal homicide. The essence of Professor Robinson’s argument, as we understand it, is that as the law presently stands mens rea and actus reus, far from being concep­tually distinct as necessary elements that must be established before criminal guilt is determined, are unhelpfully confused. Attempting to assess the intention of the offender, whether by subjective or objective criteria, in order to determine criminal guilt (for example whether mur­der or manslaughter, or in the application of partial defences, such as provocation or diminished responsibility), gives rise to not inconsidera­ble difficulty.

37. The Law Commission at 2.36 states:

If the fact that death has been caused can provide sufficient justifica­tion for the creation of a distinct offence worthy of special categorisa­tion, so can the mental element with which it was caused.

We agree that it may be logical to equate the existence of the mental ele­ment with the actus reus of criminal homicide, but it is just as logical to exclude the mental element from criminal responsibility, as is done in crimes of strict liability.

38. In his classic work The Common Law, the great American jurist Oliver Wendell Holmes Jr (Mr Justice Holmes of Supreme Court fame) had taken pains to emphasise in his chapter on criminal law^[88] that the tests of liability are external and independent of the degree of evil in the particular person’s motives or intentions. As his biographer Edward White wrote, ‘his championing an external standard of liability was to strip the common law, like other legal subjects, of the baggage of morals... he was interested in converting terms such as ‘malice’ or ‘intent’ from subjective to objective concepts’.^[89]

39. If the mental element is to be properly preserved in a civilised sys­tem of criminal justice as envisaged in Article 2 of the ECHR, its proper place is assessment of the degree of moral culpability for the unlawful killing, rather than constituting an element in criminal responsibility. In other words, English law has consistently put mens rea in the wrong place. Motive, intent, or premeditation, all belong to the stage of sen­tencing the offender as the penalty for breaking the criminal law. That is the purport of Lord Kilbrandon’s formula; once rid of the arcane distinc­tions between different categories of homicide - notably murder and manslaughter - the offender can be sentenced in the most appropriate way and proportionate manner.

40. We suspect that within some of the objections to the notion of a single crime of criminal homicide there resides an anxiety that with the removal both of the term ‘murder’ and the mandatory penalty of life imprisonment the judges will take the opportunity to impose sentences of lesser severity, even for crimes which appear to be among the gravest and most socially repellent in character. In short, there exists a distrust of the judiciary - in our view wholly groundless and manifestly ill- deserved - encouraging support of the status quo. This ought not, in our view, to be a fatal objection since sentencing in criminal matters gener­ally discloses little evidence, either of random inconsistency or undue lenity.

41. The abolition of the mandatory penalty for murder, which would be the automatic consequence of a single offence of criminal homicide, would permit a greater degree of ‘fine tuning’ of sentencing by the appel­late process, which would in turn be strengthened by giving the Crown wider opportunities for appeal.^[90] Our argument is that, given the prob­lems of balancing mens rea and actus reus at the trial stage, it is better to ask the prosecution to establish its case on an altogether simpler basis. Was the death the result of an act or omission by the defendant? Can it be demonstrated that the defendant caused^[91] the harm? Was there evidence of failure of corporate management? Did such conduct cause harm, even though not intended? Was the death the result of such harm? Did this conduct manifest recklessness or ‘gross’ negligence? It is not, moreover, easy to distinguish the criteria whereby a negligent act may be defined as grossly so. Baron Rolfe in 1843 said that he ‘could see no difference between negligence and gross negligence... [it was] the same thing, with the addition of a vituperative epithet.’^[92] A more helpful way of describing such conduct which attracts criminal responsibility is that the accused demonstrated a serious failure to achieve the standard of care objectively to be expected of a reasonable person.

42. In short, we would approve proof of guilt in criminal homicide to approach more closely to the norm of strict liability. While it might be immediately suggested that we are doing that which the late Professor Glanville Williams criticised in the House of Lords judgment in Smith,⁴ namely, that it would henceforward be possible to commit murder (or criminal homicide) by accident, that criticism is only valid if the conse­quence of conviction is the imposition of what Lord Reid in Sweet v Parsley^{[93] [94] described as a ‘disgraceful penalty', by which he had in mind imprisonment. It is our argument that some of the evidence presently adduced for the purpose of establishing a partial defence, together with other evidence neither relevant nor necessarily admissible in the course of trial, should be presented after a finding of guilt but before sentence. There is no reason why a court cannot perfectly well take such matters into account, not least since modern sentencing is reliant upon the preparation of expert reports, in addition to hearing mitigation. It is at this stage that the moral dimensions of personable accountability and desert may be properly accommodated within the sentencing process. The circumstances of the criminal event might be at the very margins of blameworthiness, as in a so-called ‘mercy' killing. Alternatively, they might be such as to attract a condign penalty, as in a so-called ‘contract' killing.}

Degrees of murder and the mandatory penalty

43. At the heart of all the difficulty in reforming the law of homicide in England, whether the concern is specifically with murder or with the entire corpus of homicide law, is the mandatory penalty of life imprison­ment. The tenacity with which it is defended as if it were some axio­matic proposition underpinning the whole law of homicide has caused it to become an unreasoning and unreasonable impediment to any attempt at applying reason in the process of reform. The Law Commission proposal to limit its application to what would be first degree murder would, without doubt, limit the extent of its applicability but this would do no more than did the Homicide Act 1957 to limit capital punishment by restricting the offences which fell within the capital category.

44. The introduction of two categories of murder that is proposed by the Law Commission differs from such earlier proposals only in that the basis of distinction consists not in the identity of the victim but in the deliberation or otherwise of the offender. In one sense, that is an undoubted improvement upon all the suggestions for degrees of murder that have been proposed and deservedly foundered in the past 150 years. But it is not, in our view, the way forward. It is, at best, only a partial remedy for the ‘mess'. Every past attempt to construct a list of victims whose killers deserve the most condign punishments has been guided by the same ignis fatuus, and to employ the putative mental element in the offender, as distinct from the social identity of the victim, can scarcely hope for better success.

45. As the distinction is presently proposed, we see it is having an effect no different from the distinction in the Homicide Act 1957 between cap­ital and non-capital murder. It would provide the court with the oppor­tunity of passing the sentence of its own choice as distinct from the mandatory sentence which would still apply to first degree murder, irre­spective of any mitigating circumstances. Just as the 1957 Act produced some quite absurd anomalies,^[95] the present proposal would undoubtedly be vulnerable to the sometimes capricious decision-making of juries.

Conclusion

46. We have not attempted to comment upon every part of the Consultation Paper, a scholarly excursus of the law of murder today val­uably demonstrating many aspects of the current ‘mess'. Rather, we have concentrated upon particular issues which include the comments made by the Law Commission on our own position as set out in our book With Malice Aforethought. We should point out that in the period of almost two years since publication, while we have reflected upon the comments of critics we have at the same time been able to consider other writings on the subject. While our belief that the Kilbrandon formula offers the simplest and most effective way of resolving the ‘mess' of the present law has, if anything, been reinforced, where the establishment of crimi­nal guilt is concerned we are now firmly inclined to favour a move towards a model approximating more closely to one of strict liability. In combination with the Kilbrandon formula, this would lead to a percepti­ble strengthening of the law; not, as some critics might suggest, to a weakening of it.

47. To do so would be to simplify a trial process that has become ever more complicated, not least by the use of defences that, while they may be readily transparent in their possession of little intrinsic merit, have a great instrumental value to defendants when they are employed to persuade a jury to bring in a manslaughter and not a murder verdict. Just as defend­ing advocates once employed their every art to turn the M'Naghten Rules (and later, between 1957 and 1965, diminished responsibility) to advan­tage, thereby protecting their clients from the gallows, so today, essen­tially the same practice is used to ensure that neither the mandatory life sentence, nor its attendant Schedule 21,^[96] render them immediately liable to long periods of incarceration and subsequent liability to it for the remainder of their lives. A simplified approach to prosecution has addi­tional merits, not least in terms of court time and legal resources generally.

48. To permit judicial discretion across the entire spectrum of homicide convictions would, in our view, lead to a more rational pattern of sen­tencing. By its nature, this would more accurately reflect both the oppro­brium in which some offences are quite properly held, as well as the sensitivity and compassion appropriate to those other offences arising out of the often tragic circumstances of the human condition. Such pos­sibilities ought to be embodied in a law of homicide that recognises both justice and mercy, and without distinction.

ANNEX: EXTRACT FROM LAW COMMISSION CONSULTATION PAPER NO 177

The Argument of Sir Louis BIom-Cooper and Professor Terence Morris

2.32 Sir Louis Blom-Cooper and Professor Terence Morris have recently argued in favour of the abolition of the crime of murder.^[97] The impor­tance of their argument, and the influence that it has had, warrants spe­cial attention here. In their view, there should be a single offence of ‘criminal homicide'. Matters such as provocation, diminished responsi­bility, and other mitigating factors, should be dealt with through the nature and degree of severity of the sentence given, not through a rigid structure of grades of offence and discrete (partial) defences, with all their complex restricting conditions.

2.33 There is powerful force in this argument. An argument for a single offence of unlawful homicide is also put forward by Victim Support.^[98] They see virtue in ridding the law of the adversarial dimension to trials generated by the natural desire of defendants to see their crime reduced from murder to manslaughter. This, says Victim Support, often entails blaming the victim as part of the defence to the murder charge, a feature of trials they would like to reduce or eliminate. It may be, however, that reform of the doctrine of provocation as a partial defence to murder will address these concerns to some degree.^[99]

2.34 Even if it were within our terms of reference to consider it, however, we do not agree that it is the right course to recommend the creation of a single offence of unlawful killing. If, for Blom-Cooper and Morris, fault is merely a factor to reflect in sentence, then that could logically be said to be true of the outcome (the victim's death) as well. Why single out unlaw­ful killing for separate treatment, when it may purely have been chance that the victim died, and the result could have been more or less serious bodily harm done?^[100] Let us consider this point further.

2.35 Professor Paul Robinson, has argued that causing death can, like the more culpable of the mental elements (intention/recklessness), be regarded as simply a matter of grading.^[101] On his account, the rule one violates in homicide cases can be said to be a rule prohibiting unjustifi­ably harming someone simpliciter. On this view, the fact that one caused death is simply an aggravating factor, a possible ground for increasing the sentence.^[102] It is not the basis for a separate offence.

2.36 We take it that Blom-Cooper and Morris would not wish to endorse this line of argument, if it led to the conclusion that there should be no separate offence focused on the fact that the defendant has committed ‘homicide'.^[103] In our view, though, if the fact that death has been caused can provide sufficient justification for the creation of a distinct offence worthy of special categorisation, so can the mental element with which it was caused.

2.37 All Consultation Papers must have some fixed points, if consulta­tion is to be focused and meaningful. Virtually all jurisdictions have a special category of homicide approximating to murder, whether or not they impose the mandatory life sentence for that offence. Accordingly, it is not proposed that such a category should cease to be a part of the law of England and Wales.

2.38 Further, our provisional proposal is that to maintain a firm and clear connection between the sanctity of life and the structure of the law of homicide, intentional killing should be made into a unique offence: ‘first degree murder'. Intended killing is rightly regarded as specially grave species of wrong, because it involves a successful attack on the most basic of values, life, through the deliberate destruction of human being born alive.