The muddle over murder
Published in: Daily Mail
The Law Commission's proposal to downgrade many killings to manslaughter would run contrary to centuries of understanding of the meaning of our most serious crime.
Murder is defined as an unlawful killing with 'malice aforethought', which in turn is defined as an intention either to kill or to commit grievous bodily harm.
If someone is attacked with enough violence to kill him, the fact that the attacker may not have intended his victim to die is considered irrelevant. If he intended to inflict upon his victim so much harm that he died, it is thought as bad as if he intended to kill him.
Now the Law Commission is recommending an end to this assumption, so that only cases where the assailant intends to kill his victim will be classified as murder.
At a stroke, this would remove a very large proportion of cases which are currently found to be murder. Crimes where a victim is kicked to death, for example, or is stabbed during a robbery would be downgraded to manslaughter.
This startling proposal would minimise the severity of crimes in which people are killed as a result of intentionally severe violence. This would seriously offend many people's innate sense of right and wrong. It would undermine the very notion of criminal responsibility at the heart of justice and would have a disastrous knock-on effect on the rest of the criminal justice system.
The inspiration for the Law Commission's proposal, however, appears not to be a problem with the definition of murder but with the sentence it commands. There is general agreement that the law in relation to murder is in a mess because of the mandatory sentence of life imprisonment which automatically follows any such conviction.
This blanket punishment does not permit sentencing to reflect the fact that murder covers different degrees of culpability. Most people would agree that a 'mercy killing' - someone who kills his sick wife because of her unbearable pain, for example - is not in the same moral universe as a murder committed during an armed robbery.
Yet both would receive the same sentence of life imprisonment. As a result, juries are reluctant to convict of murder someone charged with a mercy killing, which means they are either acquitted or convicted of manslaughter instead. Either outcome after a deliberate killing is clearly unsatisfactory.
This was what happened last week when Andrew Wragg walked free from court, having been cleared of murdering his terminally-ill son Jacob. Although he had smothered him with a pillow in a premeditated act, he was given a suspended sentence after the jury accepted his plea of manslaughter on the grounds of diminished responsibility rather than the prosecution's charge of murder. The result left many feeling that justice for Jacob had not been done.
This muddle could be resolved by scrapping the mandatory life sentence and leaving it to the discretion of the judge to pass a sentence commensurate with the gravity of the murder that had been committed.
The government refuses to do this because it fears a savage backlash from the public, since the quid pro quo for abolishing the death penalty was the mandatory life sentence. So instead of scrapping the sentence, the Law Commission is proposing to scrap the meaning of murder itself.
This is hardly a sensible or just resolution to this problem. A premeditated act of violence that kills someone should always be considered the most serious crime that can be committed, whatever the extenuating circumstances that in all compassion should mitigate the sentence in certain cases.
What's more, the government appears poised to deepen this moral confusion still further. The Lord Chancellor, Lord Falconer, has indicated not only that mercy killings might be downgraded from murder to manslaughter but that the defence of provocation might be extended to premeditated killings rather than being restricted to those carried out in the heat of the moment.
But someone who deliberately plans a killing is not lashing out under the kind of provocation that blots out the normal reasoning process. The suspicion is that Lord Falconer is taking advantage of the confusion over the law of murder to advance a quite different agenda -to load the dice in favour of women who premeditatedly kill their partners, on the specious grounds that such women can never be really guilty because it is men, who unlike women benefit from the defence of provocation, who are always at fault.
The way through all this is surely to scrap the mandatory life sentence. If it were ever to happen, it would have to be accompanied by a new quid pro quo. The truth is that much of the public backlash over sentencing is driven by the fact that only a proportion of the sentence that is passed is actually served. Judges should have discretion over sentences for murder; but whenever a life sentence is given, it should mean just that, life.
The integrity of the crime of murder should be upheld, with flexibility and compassion introduced into sentencing; and transparency is the key.