Law Commission proposes major overhaul of homicide offences

• England and Wales could see murder split into two distinct degrees for the first time.
• A new verdict of “murder with a partial defence” could be available to a jury when a defendant had the intention to kill but successfully argued a partial defence (such as loss of control or diminished responsibility).
• Manslaughter offences could be reformed to more fairly distinguish forms of liability while preserving the flexibility required to criminalise a wide range of fatal conduct.

The law of homicide faces the most significant overhaul in generations, as the Law Commission today publishes 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 homicide review, with two further strands of work, respectively on defences and the sentencing framework for murder, to follow.

The proposals would create first-degree murder (killing with the intention to kill) and second-degree murder (killing with the intention 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 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 confusing circular 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.

Complicity in homicide

Since the law of complicity (sometimes called “joint enterprise liability”) does not apply exclusively to homicide offences but across the whole criminal law, the Law Commission does not make proposals 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.

Recognising the role of abusers in their victims’ suicide

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.

Commissioner for Criminal Law, Professor Penney Lewis said:

“Homicide offences in England and Wales have never been the object of a coherent and structured reform, and the law has not kept pace with what society now understands about culpability, domestic abuse and the consequences of dangerous conduct. This review offers a timely opportunity to modernise the law and to build a fairer and more proportionate framework that reflects the degrees of culpability of offenders. We want to hear from as many people as possible with experience in this area before we make our final recommendations.”

Further details are available here.