Recent proposals to replace existing homicide laws with a system allowing suspects to enter pleas of varying ‘degrees of murder’ have polarised legal opinion, writes Grania Langdon-Down

The Law Commission’s controversial proposals last month to replace the ‘archaic and misleading’ homicide laws with a two-tier offence of murder have ‘stirred up quite a bit of heat’, admits Dr Jeremy Vorder, the law commissioner leading the project. But it has not been ‘blown off course’, he says.


In the first review of murder law in England and Wales for more than 50 years, the commission has proposed revising the current ‘blunt and rudimentary’ categories of homicide so that the mandatory life sentence is confined to cases of first-degree murder, where the offender intended to kill.


Killers who intended to cause their victims ‘serious harm’ but not to kill would be prosecuted for second-degree murder, where a life sentence would be discretionary. The second tier would also include killings that currently come under manslaughter, including those caused either through ‘reckless indifference’ or where the killer intended to kill but had the partial defence of provocation, diminished responsibility or duress, a defence not currently available under the existing law.


Manslaughter would be confined to deaths caused by gross negligence or by intentionally or recklessly causing harm, attracting a fixed-term sentence. There would then be specific homicide offences, such as assisted suicide.


While criminal law practitioners broadly welcome the proposals, they question whether the government will risk introducing them if they are seen as being soft on crime. Ministers, opposition politicians and victims’ groups have challenged what they see as a downgrading of murders where the killer only intended to cause serious harm. ‘Authoritative’ government sources are quoted as saying it is unlikely they will accept the recommendations wholesale.


However, Dr Vorder tells the Gazette: ‘On the whole, we have been reasonably impressed with the way the consultation paper has been received by those who have read it thoroughly. It is controversial, so it has inevitably stirred up quite a bit of heat, but we don’t feel we have been blown off course before it has got under way.’


He says the proposals are designed to create a more rational and simple structure – intent to kill: first degree; no intent: second degree. ‘But [the proposals] are also saying that if you kill recklessly, that is second-degree murder, not manslaughter as it is at present. If someone pushes a lump of concrete onto a car under a bridge and then says they thought death was only highly likely, not virtually certain, they are entitled to a manslaughter verdict. That seems wrong to us. Far from being a downgrading, I think we are investing a lot of capital in the idea of murder and trying to ensure that crimes which should be murder are treated as murder, but distributed across the first/second degree border.’


He says people have jumped to the conclusion that the commission is trying to slim down the number of mandatory life cases. ‘Although cases where there is no intent to kill will go down to second-degree murder, we are recommending restrictions on provocation, which is a very popular defence at the moment because it gets you from murder to manslaughter. If you restrict that, you may well get more mandatory life cases.’


Those who want to see tough measures should consider the proposals on complicity, which would make more convictions possible, he says. But he adds: ‘It isn’t a numbers game. We are trying to get the structure of the law right. It’s for others to say whether the punitive consequences turn out right or not.’


For the next three months, the commission will be taking on board the comments of a wide range of groups, before producing a final report for the Home Office in the autumn.


Among those welcoming the proposals is Ian Kelcey, who took over as chairman of the Criminal Law Solicitors Association (CLSA) in November. Senior partner of Bristol-based Kelcey & Hall and a member of the Law Society’s criminal law committee, he has been involved in more than 50 murder cases during his career.


‘I see little in the way of risk with these proposals. There is always an outcry that people may be released too soon but I think, by opening up the possibility of determinate sentences, you are more likely to find that people accused of second-degree murder will be prepared to plead guilty. At the moment there is little or no incentive.’


He reckons the problem with the current law lies with the mandatory life sentence. ‘Juries understand there is only one possible sentence. If they felt there was judicial discretion, they might be more inclined to convict rather than risk throwing the key away on this man’s life.


‘Two years ago, I dealt with a young man charged with double murder. He argued it was self-defence. There was no doubt he had, at some stage, been abducted. With a more clearly defined law, his case might have fallen into a lower category of murder.


‘You also get cases where someone is punched outside a nightclub, falls down, hits his head on the pavement and the next thing, someone is charged with murder. That is a million miles away from the Ian Huntley type of case. Nothing is going to change in relation to [the latter] types of cases. What the commission is looking at are the grey areas, where there are extenuating circumstances, which may not currently fall within the definitions of provocation, diminished responsibility or self-defence.’


He hopes the government will take up the proposals. ‘But there is a certain paranoia about being seen as soft on crime. The first part of the debate has to be to make it clear to the public that that is not what this is about. It is about coming up with a punishment that fits the crime and, in many instances, it may involve someone serving longer in prison than they do now.


‘I understand why victims’ families and pressure groups take a strong line, but mature reflection may well prove this is a very workable and sensible process that will benefit everyone concerned.’


CLSA director Rodney Warren also thinks the proposals would give defendants a much greater opportunity to enter guilty pleas to the lesser offence, and so spare victims’ families the pain and anguish of a trial.


‘Politicians talk about the proposals downgrading murder. But nobody is suggesting that the sad death of any individual is less significant in one case than another.


It is quite clear that judges should sentence on the basis of what the defendant did, rather than on the outcome.’


He says public attention has focused on the prospect that some people might not get ‘life meaning life’. He adds: ‘But life never did mean life in that way. What life meant was there would always be life licence. Newspapers said after the deaths of Fred West and Harold Shipman that they had “cheated” their life sentences – people may feel cheated by what they did, but they served their life sentences. This is where we have to consider what the purpose of sentencing is – is it about punishment? How big a part does vengeance play? What about rehabilitation?’


Prosecutors have also raised concerns with the commission that proving intent to kill in first-degree murder could be difficult. However, the commission argued that intent was proved in around 80 attempted murder convictions a year, showing it was ‘far from impossible’.


But, overall, the proposals are likely to get the support of the Director of Public Prosecutions Ken Macdonald QC, who last year called for a more flexible system that recognises degrees of homicide.


Other proposals being put forward by the commission include rewording the partial defences. Provocation would apply to someone who acts in response to fear of serious violence, even though they are not under threat at the time, which acknowledges the ‘slow burn’ response of some women trapped in violent relationships. It would also apply to those who cannot plead self-defence because, even though they were under imminent threat of violence, they responded with disproportionate force.


The commission also provisionally proposes reworking the defence of diminished responsibility by replacing ‘abnormality of mind’ with abnormality of mental functioning arising from an underlying condition or developmental immaturity, which could apply to a young defendant.


The commission wants views on whether duress – where the defendant kills under threat of death or serious violence against himself, his family or someone close – should be a partial defence to both first- and second-degree murder, or lead to a complete acquittal.


When it comes to mercy killings, the commission proposes that ‘deserving’ cases, where there has been a suicide pact or the carer was severely depressed, could be accommodated by the partial defence of diminished responsibility. However, it acknowledges that would mean a professional carer, such as a doctor or nurse, who carries out a consensual mercy killing would be charged with first-degree murder, as neither would satisfy the diminished responsibility defence.


Harriet Wistrich, assistant solicitor at London firm Birnberg Peirce and founder member of the campaign group Justice for Women, has mixed views on the proposals. She says: ‘I think some of the proposals, such as the rewording of the provocation defence, are quite sensible. But I have some serious reservations about raising voluntary manslaughter to second-degree murder from the point of view of abused women who have killed. You can’t get away from the label of murder, even if it doesn’t carry a mandatory life sentence.


‘I can see, however, that the proposed reforms might offer an improvement for cases where a defendant is caught between self-defence and provocation. At the moment, abused women who kill don’t always fit easily into self-defence, and there is such a leap between acquittal and a mandatory life sentence. In those cases, it might be better to be charged with second-degree murder.’


Ms Wistrich represented Joanne Cole, who remains convicted of the murder of her violent partner after a failed appeal last May. She says Cole is an example of someone trapped between self-defence and provocation. ‘She would probably have benefited from the proposed rewording of the provocation defence.’


Another of her clients was used as a case study in the commission’s consultation paper. Sue Schickle, who was addicted to drugs and alcohol, was convicted of murdering a diabetic man with whom she had a long and complex relationship by injecting him with insulin. At her trial she said she had no recollection of acting violently or wanting to harm him.


The case highlights the difficulties of successfully running a partial defence based on personality disorders, post-traumatic stress disorder or depression. Under the commission’s proposals, she would not have had the defence of provocation, but could have used the reformed diminished responsibility defence, which would allow a wider range of contributing facts to be considered.


Not all lawyers welcome the idea of a two-tier murder offence. Sally Howes QC, barrister at Atkinson Bevan Chambers in London, was junior prosecuting counsel in the Victoria Climbie case. She says the current law is quite clear and opposes introducing degrees of murder.


‘The offence should be murder, with the circumstances reflected in the sentence. However, I can well see how an administration would rather have more control, because judges tend not to be trusted. This is a shame because they are in a better position to judge than anybody, having seen all the evidence. Judges who have their murder ticket are the best in the country – they haven’t got it because they saved the tokens and sent them in, they have earned it.’


She argues that the biggest problem is the mandatory life sentence. ‘But, putting it bluntly, I don’t actually see politicians allowing a trade-off with the life sentence, even though it would make sense from a legal point of view and also for the public purse. You would have a lot more cases where defendants plead guilty if people knew they would have a more appropriate sentence along the lines of their criminal responsibility, within the parameters of murder. But it would be difficult to get past the public.’


Dr Vorder says it is not easy to predict if there would be more guilty pleas. ‘I think people would still want to avoid a murder conviction, whether it is first or second degree, so I don’t think there would necessarily be fewer contested cases.


‘I also wouldn’t describe limiting the mandatory life sentence to first-degree murder as a “trade-off”. We wouldn’t have accepted the terms of reference under which the mandatory life sentence was left in place unless we were content with that position.’


However, the commission does accept that the grading of offences is not a science. It concludes in its review: ‘Where the lines are to be drawn between the different categories is only in part a matter of legal reasoning. Ultimately, it is a matter of political judgment informed by public debate.’


Grania Langdon-Down is a freelance journalist