The Law Commission has proposed the biggest overhaul of homicide law in generations, in a review that the Government ordered.
In a consultation paper, the advisory body suggests replacing the current two offences of murder and manslaughter with three. These would be first-degree murder, second-degree murder and manslaughter.
The paper is the first strand of the Commission’s homicide review. Two more strands will follow, one on defences and one on the sentencing framework for murder.
The consultation runs until 30 September. The Commission is holding meetings and inviting written responses.
Two degrees of murder
First-degree murder would cover killings where the defendant intended to kill. It would carry the mandatory life sentence.
Second-degree murder would cover killings where the intention was to cause serious injury. It would carry a discretionary life sentence as its maximum.
The Commission says the change would make the offences and their sentences reflect each defendant’s culpability more accurately. Critics have long complained that the current law fails to distinguish between killings carried out with different intentions.
The paper also proposes a new verdict of “murder with a partial defence”. A jury could return it where a defendant intended to kill but succeeded with a partial defence. At present, such defendants receive a manslaughter conviction. The maximum sentence would match today’s maximum for manslaughter, which is life imprisonment.
Manslaughter and Joint Enterprise
The Commission also wants to address criticism that the law of manslaughter lacks coherence. Reckless manslaughter would sit at the top of the scale. It would cover a defendant who was aware that their conduct risked death or serious injury and took that risk unreasonably.
For unlawful act manslaughter, the prosecution would need to prove an intention to cause some injury, or recklessness about it. A new test for gross negligence manslaughter would ask whether the conduct was truly exceptionally bad. It would also have to fall far below what anyone could reasonably expect of the defendant in the circumstances.
The consultation also asks about a possible new homicide offence. It would apply where coercive or controlling behaviour by a partner or family member contributed to the victim’s suicide. Murder or manslaughter charges can already apply in some cases, but causation is hard to prove.
Campaigners had hoped for changes on Joint Enterprise, but the paper makes none. It says the rules on complicity apply across the whole of criminal law, not only to homicide. However, the Commission says the new structure would sometimes help to separate two kinds of culpability. One belongs to the principal, who carried out the fatal act. The other belongs to an accessory, who helped or encouraged them. That could lead to more proportionate sentences. The paper also states that Joint Enterprise needs urgent review and resolution through a separate exercise.
Helen Mills, of the Centre for Crime and Justice Studies, responded to the Commission’s position. She said it was “unequivocal about the need for change on Joint Enterprise”. Ms Mills is the centre’s Director of Programmes.
“But recognising the problem isn’t the same as fixing it. This decision leaves the real question unanswered: what route will actually deliver meaningful change? And when?” she said. “A Government-commissioned independent review would be a good place for the new Government to start.”
In June, Deputy Prime Minister David Lammy said he wanted to raise the minimum sentence for domestic murders in which the attacker used an item found in the home rather than bringing a weapon. Critics said his announcement pre-empted the Commission’s review of homicide sentencing.
