Murder, Manslaughter and Infanticide Law Com No 304 The Law Commission (LAW COM No 304) MURDER, MANSLAUGHTER AND INFANTICIDE Project 6 of the Ninth Programme of Law Reform: Homicide Laid before Parliament by the Secretary of State for Constitutional Affairs and Lord Chancellor pursuant to section 3(2) of the Law Commissions Act 1965 Ordered by The House of Commons to be printed 28 November 2006 HC 30 London: TSO £32.50 The Law Commission was set up by the Law Commissions Act 1965 for the purpose of promoting the reform of the law. The Law Commissioners are: The Honourable Mr Justice Etherton, Chairman Professor Hugh Beale QC, FBA Mr Stuart Bridge Professor Jeremy Horder Mr Kenneth Parker QC The Chief Executive of the Law Commission is Mr Steve Humphreys. The Law Commission is located at Conquest House, 37-38 John Street, Theobalds Road, London WC1N 2BQ. The terms of this report were agreed on 1 November 2006. The text of this report is available on the Internet at: http://www.lawcom.gov.uk Crown Copyright 2006 The text in this document (excluding any Royal Arms and departmental logos) may be reproduced free of charge in any format or medium providing that it is reproduced accurately and not used in a misleading context. The material must be acknowledged as Crown copyright and the title of the document specified. Any enquiries relating to the copyright in this document should be addressed to The Licensing Division, HMSO, St Clements House, 2-16 Colegate, Norwich, NR3 1BQ. Fax: 01603 723000 or e-mail: [email protected] ii THE LAW COMMISSION MURDER, MANSLAUGHTER AND INFANTICIDE CONTENTS Paragraph Page PART 1: WHY IS A NEW HOMICIDE ACT NEEDED? 1.1 1 The terms of reference for the review of Murder 1.1 1 How did the Law Commission take forward these terms of 1.2 2 reference? The existing law and the problems with it 1.8 3 The current structure of offences 1.12 3 Problems with these offences 1.15 4 The serious harm rule 1.17 4 Reckless manslaughter 1.24 6 The ‘two category’ structure of general homicide 1.32 9 offences Complicity in murder committed by another person 1.39 10 Partial defences 1.44 11 Problems with these partial defences 1.46 11 Provocation 1.46 11 Diminished responsibility 1.49 12 Killing in pursuance of a suicide pact 1.50 12 Infanticide 1.51 13 Missing Defences 1.52 13 Excessive Force in Defence 1.53 13 Duress 1.54 13 Sentencing and sentencing reform 1.58 14 An overview of the structure that we are recommending 1.63 15 The structure of offences 1.67 16 Partial defences reducing first degree murder to second 1.68 17 degree murder Other specific homicide offences 1.69 17 Conclusion 1.70 17 iii Paragraph Page PART 2: STRUCTURE WITHIN THE LAW OF HOMICIDE 2.1 19 A three-tier structure 2.1 19 Why a further tier is necessary 2.3 19 Approaches for reform that we reject 2.8 20 Retaining a two-tier scheme but re-aligning murder and 2.8 20 manslaughter Restricting murder to intentional killing 2.10 20 Expanding murder to include all killings where 2.11 20 there was an intention to cause some harm Defining murder to include killing where the 2.13 21 defendant is ‘reckless’ as to causing death A single homicide offence 2.18 22 The approach that we recommend 2.23 22 A three-tier structure 2.23 22 An alternative three-tier scheme including an 2.34 24 ‘aggravated’ offence of murder Offence labels 2.36 25 How sharply do offences need to be distinguished? 2.45 26 First degree murder 2.50 28 The provisional proposals in the CP 2.51 28 Responses to the provisional proposal 2.53 28 The impact of the responses on our thinking: a wider definition 2.55 29 of first degree murder The advantages of our recommendation compared to our 2.58 29 provisional proposal How our recommendation would be an improvement on the 2.63 31 existing law Second degree murder 2.70 32 The different functions that second degree murder would 2.72 33 perform Why killing through an intention to do serious injury (but 2.76 33 without awareness that there was a risk of causing death) should be treated as second degree murder The meaning of ‘injury’ 2.82 34 Should ‘serious’ injury be defined? 2.86 35 Approach 1: defining ‘serious’ injury 2.88 35 Approach 2: not defining ‘serious’ injury 2.93 36 iv Paragraph Page Why killing through an intention to cause injury or fear or risk 2.95 37 of injury while aware of a serious risk of causing death should be second degree murder Introduction 2.95 37 The provisional proposal in the CP 2.99 38 Responses to the provisional proposal 2.100 38 A new formulation 2.105 39 Advantages of the new formula 2.108 40 Resurrecting the ‘felony-murder’ approach? 2.112 41 Conclusion 2.115 41 The three-tier structure and ‘split’ juries 2.117 42 Partial defences 2.122 43 Introduction 2.122 43 The provisional proposals in the CP 2.124 43 Responses to our proposals 2.125 43 Should the law of homicide retain partial defences? 2.130 44 Should each partial defence have the same effect? 2.132 44 The problem of ‘split’ juries 2.132 44 Should the operation of partial defences be confined to first 2.146 48 degree murder? Should a successful partial defence plea to first degree 2.156 50 murder result in a verdict of second degree murder or manslaughter? Conclusion 2.158 50 Manslaughter 2.159 50 Introduction 2.159 50 The scope of manslaughter within the three-tier structure 2.163 51 Should killing a police officer on duty be first degree murder even if 2.166 52 the killer did not have the fault element for first degree murder? PART 3: THE FAULT ELEMENT 3.1 53 Introduction 3.1 53 How different fault elements fit the new structure 3.1 53 The different fault elements and the ‘ladder’ approach 3.4 53 v Paragraph Page Intention 3.9 55 The common law 3.10 55 The options we set out in the CP 3.16 56 Responses to the CP 3.17 56 Our conclusions 3.18 57 ‘Awareness’ of risk 3.28 59 ‘Serious’ risk 3.36 60 The fault elements of manslaughter 3.41 61 Introduction 3.41 61 Criminal act manslaughter 3.46 62 Gross negligence manslaughter 3.50 62 The first change - structure 3.52 63 The second change - fault 3.58 64 PART 4: COMPLICITY IN MURDER 4.1 65 Our recommendations 4.1 65 D’s liability for first degree murder 4.8 66 D’s liability for second degree murder 4.31 71 Peripheral involvement in the joint venture 4.35 72 Duress 4.37 72 A new application of manslaughter 4.42 74 Conclusions 4.47 74 PART 5: PROVOCATION AND DIMINISHED RESPONSIBILITY 5.1 76 The effect of a plea of provocation 5.1 76 The substance of the defence 5.11 78 An absence of judicial control over when the plea is 5.15 80 considered by the jury The unnecessary and undesirable loss of self-control 5.17 80 requirement Uncertainty over the ‘reasonable person’ requirement 5.33 84 A new basis for the defence: fear of serious violence 5.47 87 How narrow should the provocation defence be? 5.61 91 Bars to the defence 5.78 94 The effect of a diminished responsibility plea 5.83 95 The definition of diminished responsibility 5.107 101 Developmental immaturity 5.125 106 vi Paragraph Page Diminished responsibility and insanity 5.138 108 PART 6: DURESS 6.1 111 Introduction 6.1 111 The current law 6.5 112 Our provisional proposals and questions 6.12 114 Responses to the provisional proposals and questions 6.17 115 Our recommendations 6.21 116 Options we reject 6.22 116 Option (2): duress should be a partial defence to first degree 6.22 116 murder resulting in a conviction for second degree murder but a full defence to second degree murder and attempted murder Option (3): duress should be a partial defence to first degree 6.29 118 murder resulting in a conviction for second degree murder and a partial defence to second degree murder resulting in a conviction for manslaughter Option (4): duress should be a partial defence to both first 6.32 118 degree murder and second degree murder, in each case resulting in a conviction for manslaughter Option (5): duress should be a partial defence to first degree 6.33 118 murder but not a defence to second degree murder or attempted murder The option that we are recommending 6.36 119 Option (1): duress should be a full defence to first degree 6.36 119 murder, second degree murder and attempted murder A full defence to first degree murder 6.36 119 Reasons for questioning our provisional proposal 6.39 120 that duress should be a partial defence to first degree murder Reasons for concluding that duress should be a 6.43 121 full defence to first degree murder Distinguishing cases according to whether 6.54 123 or not the defendant acted in response to a threat against his or her own person Distinguishing between principal offenders 6.56 123 and secondary parties Consistency with provocation and 6.59 124 diminished responsibility vii Paragraph Page A possible refinement of our recommendation 6.66 126 A full defence to second degree murder and attempted 6.70 127 murder Additional recommendations 6.73 127 Fear of death or life-threatening harm 6.73 127 Reasonably held belief 6.77 128 The defendant’s characteristics for the purpose of the 6.83 129 objective limb of the defence A reverse burden of proof 6.87 130 A further consultation 6.87 130 The further questions that we asked 6.88 130 The responses 6.92 131 The objective limb of the defence 6.95 131 Burden of proof and defences 6.97 132 Reasons for departing from the common law principle 6.101 133 The problem of disproving duress 6.101 133 No analogy with provocation and self- 6.103 133 defence Duress emanating from or relating to acts 6.107 134 outside the jurisdiction Collaboration between criminals 6.109 135 Distinguishing