Another opportunity to deal with the legal hot potato of murder law reform in England and Wales has arisen recently, courtesy of the incumbent Director of Public Prosecutions, Keir Starmer, supporting the reform of homicide law. But Keir Starmer’s kicking over of the ashes of the previous government’s half-hearted reform proposals have landed the coalition with quite a tricky task; no politician wants to get their fingers burned by an issue as heated as murder and life sentences. Nonetheless, a debate on the categorisation of murder, by degree, certainly appears to be back on the cards.
Murder law really is a touchstone for the public and politicians know that movements on this front need to be carefully considered and even more carefully presented if they are to avoid the much feared tag of being ‘soft on crime’. But Keir Starmer is not alone; his remarks in support of reform follow hard on the heels of similar remarks from his predecessor, Sir Ken MacDonald QC; the former Metropolitan Police Commissioner, Lord Blair, also has thrown his weight behind the Law Commission’s original proposals, first aired some five years ago.
What may well be behind this flurry of ground preparation is the confirmation that the Lord Chancellor, Kenneth Clark, is himself “sympathetic to the line taken by the Law Commission.” This support was revealed during an exchange in the House of Lords in July this year; Lord McNally confirmed that the Law Commission’s report, Murder, Manslaughter and Infanticide, first put forward in 2006, was back on the table as part of the government’s general review of sentencing policy.
Time to become more nuanced
It has long been evident that the two-tier division of homicide, into murder and manslaughter, has been groaning under the weight of an increasingly secularised approach to the crime of murder. Once murder was no longer seen as first and foremost a Biblical affront, subject to Abrahamic retribution, the legal system has struggled to shoehorn a more nuanced understanding of culpability into the manslaughter and murder categories.
Manslaughter gathers up too many cases deserving a higher penalty—those where life is lost due to a reckless action but where serious harm is not the explicit intention, although risk to life is an obvious possibility. An example is a terrorist who, when he plants a bomb with the intent of causing terror and not serious harm, by giving a ‘reasonable’ warning beforehand, is guilty only of reckless manslaughter by current precedent, even when his or her actions result in the slaughter of innocents.
Three tiers from two?
So what exactly is the nature of the package being unwrapped now by Keir Starmer? The Law Commission’s original proposals are a set of carefully thought out measures, but at their heart lies the introduction of a three-tier system—an American-style split of murder into the first and second degrees, with a revamped crime of manslaughter.
First-degree murder would cover cases of primary culpability: where a killing was either intentional or there was an intent to cause serious injury, in the knowledge that death is a serious consequential risk. Second-degree murder would be for lesser levels of culpability, where the intent was to cause serious injury, but with no reasonable expectation that death would be a consequence.
Manslaughter would be reserved for killing by a criminal act intended to cause injury; or an act where injury could be foreseen to be a serious risk; or finally through gross negligence. First-degree murder could be commuted to second-degree murder by the jury, where the defences of diminished responsibility, provocation or suicide pact are successful.
Murder law reform needs political bravery
The whole package seems to be a sensible and balanced solution to address the malformations of the current system, but to gain political traction, the proposals need to be more than just rational—they need to be saleable by the government to a sceptical public.
The critical point here is that, under this revised system, only first-degree murder would continue to carry the mandatory sentence of life imprisonment. The headlines will all too willingly write themselves—as ‘fewer life sentences for murders’. This is likely, despite the Law Commission’s assessment that, as a whole, conviction rates for the new first and second-degree murder categories are likely to increase.
So it will be a brave administration that will be prepared to unwrap this particular hot potato and attempt to redefine the public’s prejudices.