Reforming Murder

From the BBC:

Research into the sentencing of murderers has found no evidence that people support mandatory life imprisonment.

“We found no evidence of overwhelming or widespread public support for automatically sending all convicted murderers to life imprisonment.

“We found considerable evidence that the public perceive significant variations in the seriousness of different murder scenarios.”

In a sense, this is not particularly surprising. Murder is a commonly misunderstood offence. The relevance of this survey is to the persistent calls to reform the law in this area.

Murder is a surprisingly wide offence. Broadly speaking, it is any conduct that results in a person’s death, where the defendant intended to cause either death or “really serious harm”. That can cover anything from a “fatal punch” scenario to the most sadistic of killings. This is not, in itself, problematic. The difficulties arise in sentencing. For an offence that covers a very wide range of conduct, it has only one possible sentence: life imprisonment. The only discretion the court has is in setting the minimum time a prisoner must serve in prison.

As the research pointed out, people are uneasy at the idea that someone who didn’t even strike the fatal blow should receive the same sentence as a serial killer. A mandatory life sentence ignores a range of factors, such as the level of premeditation, the extent of involvement, or the nature of the conduct that caused death. The court’s ability to assess the culpability of the killer, and impose punishment accordingly, is thus severely limited.

Not only that, but there is some suggestion that it also reduces the likelihood of any conviction. Juries often dislike convicting the guilty if they think the law is unfair. Lord Macdonald, a former Director of Public Prosecutions, hinted that this might be happening in some murder trials.

The law has attempted to moderate some of the most unjust results of this system, with varied success. In particular, the defences of provocation and diminished responsibility were designed to allow the courts to avoid imposing mandatory life sentences where it might appear unfair to do so, convicting the defendant instead of manslaughter. These defences are not, however, an ideal solution. They have proved persistently inadequate: provocation had significant difficulties dealing with victims of domestic abuse, resulting in their conviction instead for murder. Meanwhile, others were able to get “lesser” convictions for manslaughter even though their conduct was more reprehensible than that of some murderers. So difficult has this area been that provocation was abolished last month and replaced with a new defence of “loss of control”. Even this is unlikely to be a panacea. Factors such as provocation and diminished responsibility traditionally speak to mitigation rather than guilt, and moving them from one category to another makes the law a much messier exercise.

Nevertheless, it is impractical (and would be massively unpopular) to make the sentence for murder entirely discretionary. Some crimes should have a mandatory life sentence, as a matter of principle as well as politics. But the current breadth of the offence of murder makes this impossible. The proposal has therefore been for quite a while to split the offence up into two “degrees” of murder. The first, retaining the mandatory life sentence, would be where the defendant intended to kill his victim. Second degree murder would cover everything else: intent only to cause serious harm, diminished responsibility, “loss of control” and any other mitigating factors. This would have a wider range of sentences, defined by sentencing guidelines, and again carrying a maximum of life imprisonment. Manslaughter would then be confined to cases where death was caused by gross negligence or other unlawful acts.

This has the distinct advantage of allowing the punishment to be better tailored to the particular circumstances of offending, while retaining a mandatory life sentence for the more serious offenders. It also does away with rigid and unsatisfactory partial defences in favour of a more realistic appraisal of culpability.

This three-tier system has been proposed for years, most recently in 2006 by the Law Commission, and again backed by Keir Starmer, the present DPP, as well as his predecessor, Lord Macdonald. Unfortunately, it was rejected by the last government, presumably because they didn’t want to be seen as soft on murderers. Today’s findings may help challenge that notion and move the law in a more sensible direction.

Photo of the Week

Filming for Pirates of the Carribbean in Essex Court, Inner Temple.