Tuesday, 13 July 2010

Government now attracted to reforming the law of murder ... wonder why?

Back in January 2010, Law and Lawyers had a brief look at the law of murder "Murder: a whole spectrum of conduct".  In 2004, the Law Commission described the law as a "mess" and, in 2006, published their report - Law Com 304 Murder, Manslaughter and Infanticide.  The Commission recommended fundamental reform and proposed a new Act of Parliament to create a 3 tier structure for general homicide offences.  The government (as is often the case) cherry-picked the report and implemented reforms to the law relating to "partial defences" to murder -  see Coroners and Justice Act 2009 Part 2 Chapter 1

It now seems that the new government is attracted to the idea of reforming the law of homicide along the somewhat complex lines suggested by the Law Commission: First degree murder; Second Degree Murder and Manslaughter.  See Telegraph 13th July.

It is worth noting that the Law Commission's report was in 2006 and there is therefore a case for reform even if not exactly on the lines suggested by the Commission.  We know from Kenneth Clarke's speech (looked at here) that the government wishes to reduce the prison population.  The removal of the mandatory life sentence for some murders - (i.e. those classed as 2nd Degree) - will assist with that aim.  It is perhaps unfortunate that the aim of reducing the numbers in prison is likely to be seen as the main "driver" behind government's conversion to reforms suggested some time ago.


  1. Be fair- the last government produced a mish-mash from the Law Commission report, calculated to please the feminists, in the Coroner and Justice Bill (now Act) and I seem to remember that some Cons. MPs and Lords with legal background did express some dismay over this and expressed a preference for the Law Comm. ideas. Whatever the Coalition does will be tagged with saving money but it's possible that KC may remember what he had to do to the CJA 1991 w2hich also aimed at that objective. Personally I am looking forward to his Green Paper in the Autumn

  2. Yes, as I said, the last government amended the law relating to the partial defences. There was certainly a view that this was driven by the feminist agenda which existed within the Labour government. In the light of problems which had been raised in the various decided cases (especially regarding diminished responsibility and provocation) I am not fully convinced by that argument though there could be something in it. It is probably too early to say whether it is actually working that way in practice.

    Reform of the whole of the law of homicide is needed. This ought to be done as a well-considered package so that there is a new Homicide Act and all previous legislation relating to homicide is repealed. At the moment we have a hotch-potch of legislation brought about by governments bringing in selective reforms some of which were highly problematic - e.g. the capital murder provisions which were in the Homicide Act 1957 (as originally enacted and later repealed with the abolition of the death penalty).

    The simplest way to reform might be to merely have a law of "Unlawful Homicide" which would cover the whole spectrum of unlawful killing. This would (sensibly) be combined with abolition of the mandatory life sentence but that need not stop the most serious offenders receiving even full life tariffs. I have a concern that introducing "categories" of murder wll result in some very tricky distinctions arising as cases reach the appellate courts.

    As ever, political considerations enter into what is practicable for a government to do in reforming such a sensitive area of the criminal law. The general public would NOT accept that some killers would no longer be classed as "murderers" but merely as "guilty of unlawful killing". The public would also probably wish to see far more killers actually having to serve full life sentences. Very few now have full life tariffs.

    As I say, there is a good case for reforming the law but it will now look politically as though the government is acting only out of concern for prison numbers and reduction of expenditure.