Law Commission proposes offences of first-degree and second-degree murder

A review ordered by the Government and carried out by the Law Commission has proposed the most significant overhaul in generations of the law on homicide.

The advisory body published a consultation paper proposing to replace the existing two-tier structure of homicide offences (murder and manslaughter) with a three-tier structure (first-degree murder, second-degree murder and manslaughter). The proposed reform constitutes the first strand of the Law Commission’s homicide review, with two further strands of work, respectively on defences and the sentencing framework for murder, to follow.

However, the review does not propose any change in guidance on Joint Enterprise cases, as campaigners hoped. The report is out for consultation until 30 September, with the Law Commission holding meetings and inviting written responses to its paper.

Under the proposals, first-degree murder would cover cases of killing with the intention to kill, while second-degree murder would encompass killing where the intention was to cause serious injury. First-degree murder would carry the mandatory life sentence, whereas second-degree murder would carry a maximum sentence of life imprisonment (discretionary life sentence).

The change, according to the Law Commission, would mean that two degrees of murder and the attached sentences would more accurately reflect the culpability of defendants, addressing longstanding criticism that the current law fails to differentiate killings committed with different intentions.

The Law Commission also proposes that, when a defendant killed with the intention to kill but successfully argued a partial defence, the jury could return a verdict of “murder with a partial defence”. Under the current law, in such cases a defendant will be convicted of manslaughter, rather than murder. The maximum sentence for murder with a partial defence would be the same as the current maximum sentence for manslaughter (life imprisonment). The proposed change aims to address the criticism that the label of manslaughter does not accurately reflect a defendant’s intention.

Finally, the proposed reform of the elements of manslaughter offences aims to tackle the recurring criticism that the offence of manslaughter is incoherent. At the top end of manslaughter culpability, a defendant who was aware of a risk of causing death or serious injury and unreasonably ran that risk would be guilty of reckless manslaughter. To ensure sufficient culpability for unlawful dangerous act manslaughter, the prosecution would be required to prove that a defendant intended to cause some injury or was reckless as to whether some injury was caused.

The current test for gross negligence manslaughter would be replaced with a requirement that a defendant’s conduct was truly exceptionally bad, falling far below what could reasonably be expected of them in the circumstances. This would ensure a more structured and fairer framework for criminalising fatal conduct when a defendant did not intend to kill or cause serious injury.

The report says that since the law related to Joint Enterprise does not apply exclusively to homicide offences but across the whole of criminal law, no proposals are being made to reform general rules governing complicity. However, the proposed changes to the structure of homicide offences would, in some cases, facilitate a more accurate differentiation between the culpability of a principal offender (who committed the fatal act) and an accessory (who assisted or encouraged the principal offender), resulting in more proportionate sentences. The report is also clear that the issues related to Joint Enterprise need urgent review and resolution in a separate exercise.

The consultation also seeks views on a bespoke homicide offence of controlling or coercive behaviour in an intimate or family relationship where that abuse contributed to the victim’s suicide. Under the current law, murder or manslaughter charges may apply in some cases, but causation is difficult to establish.

Deputy Prime Minister David Lammy announced last month that he was seeking to increase the minimum sentence for domestic murders where the attacker used an item found within the house to commit the crime and did not bring a weapon to commit the offence. Critics said Mr Lammy’s announcement had pre-empted the Law Commission’s review of homicide sentencing.

Speaking about the Law Commission’s statement on Joint Enterprise, Helen Mills, Director of Programmes at the Centre for Crime and Justice Studies, told Inside Time: “I understand why the Law Commission felt a homicide review wasn’t the vehicle to reform the laws and practices around Joint Enterprise – complicity runs across all of criminal law, not just homicide. Let’s take the good from this. The Commission is unequivocal about the need for change on Joint Enterprise, and it gives due recognition to the long-standing evidence and advocacy efforts on this issue. 

“But recognising the problem isn’t the same as fixing it. This decision leaves the real question unanswered: what route will actually deliver meaningful change? And when? A Government-commissioned independent review would be a good place for the new Government to start.”