Wednesday, 20 January 2010

Murder: a whole spectrum of conduct

The law of murder remains one of the few crimes still basically defined by our ancient common law. Parliament has stepped in from time-to-time – (most recently in 2009) - to alter particular aspects of the law. There is now a pressing need for a full and complete overhaul.

In essence, a person (D) will be guilty of murder if he unlawfully kills another person (V) and at the relevant time he intended to kill V or intended to cause grievous bodily harm to V. A simple illustration is where D gets a gun, goes to a place where he knows V will be and then shoots V through the heart and kills him.

One of the problems with murder is that it covers a massive spectrum of conduct from the terrorist who plants a bomb on board an aircraft to the person who kills another for reasons of mercy or compassion so as to alleviate suffering. The immensely tragic case of Frances Inglis illustrates this. Her trial was held at The Old Bailey before the Common Serjeant of London (His Honour Judge Brian Barker QC) and a jury. She has been convicted by the 10:2 majority verdict of the jury of the murder of her severely disabled son – see The Times 20th January 2010 and she has received the mandatory sentence of life imprisonment (which has to be imposed by the trial judge). She has been told that she will serve 9 years (less days already served whilst on remand) before being eligible for parole.

The Law Commission has called for fundamental reform and the Commission proposed a new Act of Parliament involving a 3 tier structure for general homicide offences.

Mercy killings are discussed in Part 7 of the Law Commission’s report. They went on to recommend that the Government undertake a public consultation on whether and, if so, to what extent the law should recognise either an offence of ‘mercy’ killing or a partial defence of ‘mercy’ killing.

There has been no action on this. I would hope that the government might be spurred on to conduct that consultation sooner rather than later.


  1. I am against this. In cases where the deceased's suffering is such that the perpetrator is willing to risk prison in order to alleviate it, we might consider this less blameworthy.

    The problem is that the perpetrator must of neccessity self-certify this. The only way we can be sure that they truly think it is worth risking prison for, is to imprison them when we catch them.

    In a similar way, the defence of necessity can only be allowed where the necessity is apparrent to all.

    If I chose on one occasion to park illegally when my wife was giving birth, I did it knowing that I might well be fined, or my car towed, and that *it would be worth it* so I would not complain if I was caught. If I broke the speed limit for a family emergency, (short of dangerous driving) no-one I know would think I was being immorral.

    But the only way to enforce this sort of self-certification is to insist that the individual takes the punishment. If it isn't worth it, you shouldn't do it. If it is worth it, then take the punishment satisfied of that fact.

  2. Ben - thanks for your comments. I do not know of anyone who would suggest that the "mercy killer" should escape all censure. The Law Commission was indicating 2 possible alternatives to the present situation. One is to create a specific offence of mercy killing. The other approach is to enable mercy killing to be a partial defence to a murder charge so that, if the defence is made out, the conviction is one of manslaughter. That would avoid the mandatory life sentence which. as the law stands, anyone convicted of murder must receive. This second approach is akin to the partial defences of diminshed responsibility; provocation and suicide pact.

    You mention a defence of "necessity." As far as I can see, the current legal authorities indicate that such a defence would not be available to a murder charge. This seems to be based on the judiciary's view of public policy as much as anything. Duress, which can be seen as a specific form of necessity, is not available to a murder charge or to a charge of attempted murder.

  3. ObiterJ - The family of the lady you mentioned think she should have escaped all censure, at least according to their statements as reported in the news.

    The tariffs handed out to mercy killers seem to me to be about right. If anything I would like them to be a little higher.

    A "mercy killer" is unlikely to be denied parole at the earliest opportunity provided they can bring themselves to mouth the words "I accept that what I did was wrong".

    I am unsure what difference it would make in practice between a long sentence and a long tariff, and I see no reason to tinker to no practical effect.

    The argument is, I think, really over the appropriate sentence/tariff. A lot of people want it to be shorter, to spare people who were, they think, less culpable. I do not think they have given adequate weight to the other effects such a policy would have.

  4. If the Law Commission's proposal for a consultation were to go ahead we cannot be sure of the outcome. It may be that the outcome might be a rejection of either an offence of mercy killing or a new partial defence to murder.

    In the Law Commission's 3 tier structure for homicide offences, the mercy killing would seem to be classifiable as First Degree Murder because it is an intentional killing. However, if a partial defence were to be available then it would be classifiable as Second Dgree Murder with a discretionary life sentence as the maximum penalty. I suspect that most people would see the latter as a preferable solution.

  5. The issue is that of the mandatory sentence. It is clear that imposition of a life sentence, when that rarely means "whole of natural life" itself encourages (no, requires) the trial jusge to assess seriousness before consideration of release. What a strange system. Surely, if the same principles as for almsot everything else applied, the judge could impose such sentence as, in all the circumstances, he saw fit. This would range from a very low number of years, to a "whole of life" approach. the sentence could be suspended on exactly the same basis as any other sentence can be. For this to work however, we would need to be much clearer on the public policy stuff. Why do we imprison murderers? Punishment? protection of the wider public? Rehabilitation? Self protection? 'Cos it's what we have always done? Until this is clear, a rational approach to the issue is likely to prove a little tricky.

  6. In this it must be noted that the jury found Frances Inglis guilty of Murder.

    Had they really wanted to, they could have found her not guilty, but they didn't: their finding was Murder.

    Juries are great for ensuring real justice.

  7. Rex_imperator - many thanks for your post. The mandatory life sentence is certainly ONE of the issues which haunts this subject. We currently have a system in which the judge must impose that sentence but then goes on to apply the Criminal Justice Act 2003 and determine a "tariff" which the person must serve before being eligible for consideration for release on licence. There is logical force in adopting a system in which the maximum sentence is a discretionary life sentence, thereby enabling the judge to determine the sentence. No doubt sentencing guidelines would still exist and they might be similar to the CJA 2003 Schedule 21. Of course, if you get to the point where you have a discretionary life sentence for murder and the same for manslaughter then you might be getting nearer to having an entirely new offence of "Unlawful Homicide" which encompasses both.

    Having said all of that, there appears to be a fear within government that abolishing the mandatory life sentence would be politically damaging. This fear is not without some justification. For this reason, the government stated (in December 2007) that it remained committed to it.

    Here is an interesting item explaining their position.

    Anonymous- thanks also for your post. Yes, the jury did convict Frances Inglis. Their verdict was clearly entirely justifiable on the evidence. The only debate in her case may be about the 9-year tariff which the judge has set. I have not seen his sentencing remarks so it is difficult to comment in detail. No doubt this very experienced judge will have considered the points that (a) there was a not guilty plea; (b) she was convicted of the earlier attempt as well as the substantive murder; (c) she killed her son when on bail for the attempted murder charge etc.

  8. The point of a life sentence is that the convict loses the right to liberty and other civic rights, for life.

    A "lifer" has never served his sentence - he is only released on licence, and then only if it serves the interests of the public to do so.

    I.e. it is the interests of the public which should determine parole, not the rights of the convict, which he has been stripped of by the court.

  9. Grumpy Old Planner22 January 2010 at 17:30

    One of the unfortunate aspects of newspaper and TV/radio reporting of sentencing is that the actual words of the judge are rarely if ever reported.

    The judge no doubt gave clear reasons why he thought a 9-year minimum term was appropriate. (The life sentence itself was, of course, mandatory.)

    This was murder, was pre-meditated (after a previous failed attempt) and involved some deceit on the part of the accused in gaining access to her son to carry out the killing. These may well have been seen by the judge as aggravating factors.

    An accurate report of the judge's words in passing sentence would have been much more informative than any amount of 'reaction' from the family, various pressure groups, politicians and sundry axe-grinders.

  10. Ben - Thanks again. For those sentenced to the mandatory life sentence, whatever the minimum term, release of the offender will not be automatic at its conclusion. On the contrary the offender will only be released if the Parole Board is satisfied, having considered the offender’s rehabilitation, that it is no longer necessary for the protection of the public that the prisoner should be confined. In many cases the offender will in fact serve very much longer than the minimum term and in some cases may never be released.

    Once released, the offender will remain ‘on licence’ for the rest of his life. Conditions will be imposed on his licence, including supervision by the probation service. If the offender presents a risk of harm to others or is in breach of his licence conditions he may be recalled to prison.

  11. GOP - thanks for the post. I agree. Publication of the trial judge's sentencing remarks would be very useful in all serious cases. They would properly inform the public and avoid the inevitable media "spin".