I have in front of me a copy of an Order for Assize and General Gaol Delivery, dated 1955, ordering the execution of a defendant for ... ‘the crime of wilful murder’. That sentence was carried out.

Happily, we have moved on in our sentencing practices to a more appropriate regime, but the law in relation to the offence of murder does not seem to have followed suit. Please note the words ‘wilful murder’ – for that was the term used to describe a deliberate homicide with intent. True, extreme recklessness was permitted as a basis of conviction for murder but, by and large, a defendant convicted of murder as a result of extreme recklessness was not executed and his sentence was commuted to imprisonment for life, or less.

Reasonable personSince those days, the law has moved on in a way somewhat out of step with what any juror or reasonable person understands by the word ‘murder’. The law now defines murder as a killing with intent to kill or with intent to cause really serious harm [GBH].

One can understand, perhaps, why this move has occurred, but it can cause problems for a jury when dealing with more than one defendant, or where there is a gang-related homicide. In those circumstances, the Crown has to prove that all of those present had an intent to kill or cause serious harm to the victim.

So, in a gang-related homicide, the person who kills, together with anyone who went along to participate in what they expected to be a serious assault (even a lookout or getaway driver) would all be liable to be convicted of the murder and face life imprisonment. Such is the state of the current sentencing provisions in the Criminal Justice Act 2003; they would all face a minimum of 15 years’ imprisonment before being on licence for life.

Any juror might consider such a sentence very harsh on the lookout who believed that the victim was to be beaten up and not killed but, when the victim died, faces a conviction for murder.

The old rule that there must be a criminal act with a guilty mind has been changed so radically in the recent past that parliament must step in to make a homicide more easily understood by society.

Prosecution barThe director of public prosecutions, Keir Starmer, has seen the light. It is obvious that the prosecution bar is set far too low for an offence as serious as murder and he has suggested that there be two classes: murder with intent, carrying the same sentence as at present, and murder with intent to cause really serious harm, which may carry life imprisonment or a determinate sentence.

The benefits are obvious. This would make the work of the Crown and, indeed, defence lawyers easier because it will be easier to advise upon the likely consequences of the actions of a defendant. It would make the work of a jury easier because jurors could apply their common sense to the evidence rather than being asked to stretch a logical definition of murder beyond the normal meaning. And it would make the work of the judge far easier in the summing up, allowing the judge to permit the jury to judge each defendant according to their act and intent.

The change would also allow the judge to make the punishment more accurately fit the crime. This should not affect the ability of the Crown to prosecute gang members, or let gang members escape their [criminal] liability for a killing, but will result in justice.

Justice is the bedrock of a democratic and humane society. As things stand, the law of murder, developing as it has over the years, has resulted in a law which the general public cannot easily understand or accept.

The time for a change is long overdue – it now rests upon parliament to show that justice must prevail and therefore confidence in the criminal justice system can be increased.

Julian Young is a criminal law specialist and senior partner at Julian Young & Co in London