Reviewing the law of homicide

Current project status

• Initiation: Could include discussing scope and terms of reference with lead Government Department
• Pre-consultation: Could include approaching interest groups and specialists, producing scoping and issues papers, finalising terms of project
• Consultation: Likely to include consultation events and paper, making provisional proposals for comment
• Policy development: Will include analysis of consultation responses. Could include further issues papers and consultation on draft Bill
• Reported: Usually recommendations for law reform but can be advice to government, scoping report or other recommendations

The Law Commission will review the law relating to homicide offences, including full and partial defences to those offences, and the existing sentencing framework for murder.

The law of homicide was subject to a thorough review by the Law Commission of England and Wales in the early 2000s. We published recommendations for reform of partial defences to murder in 2004. Many of our recommendations were implemented in the Coroners and Justice Act 2009.

We published recommendations for the reform of murder, manslaughter and infanticide in 2006. At that time the Government decided not to implement the changes we recommended.

In the almost 20 years since we last looked at homicide, the existing problems we identified with the way the homicide offences work have remained largely unchanged. In our 2006 report we described the law governing homicide as a “rickety structure set upon shaky foundations. Some of its rules have remained unaltered since the seventeenth century, even though it has long been acknowledged that they are in dire need of reform. Other rules are of uncertain content, often because they have been constantly changed to the point that they can no longer be stated with any certainty or clarity”. (paragraph 1.8 of Murder, Manslaughter and Infanticide)

As society and the law has moved on, new problems and possible limitations with the existing law have emerged. These include the operation of the law of joint enterprise, how diminished responsibility should be reflected in any new classification of homicide offences, and the extent to which the law reflects a modern understanding of the effects of domestic abuse.

The Commission is therefore pleased that the Ministry of Justice has asked us to revisit homicide law. We have agreed to reconsider and update our 2006 recommendations, to consider defences and partial defences to murder, especially now that the 2009 reforms have had time to bed down, and to conduct a complete review of the sentencing framework for murder.

The Terms of Reference for the project are available here.

Defences to murder for victims of abuse who kill their abuser

We have already started work on a project reviewing the defences to homicide for victims of abuse who kill their abuser. This full review of homicide law will allow us to consider this issue holistically, moving beyond defences to consider the homicide offences themselves for this group of defendants. We will continue our work on defences for victims of abuse who kill their abuser within the umbrella of this homicide project, which will also cover sentencing when such defendants are convicted of murder.

 

The sentencing framework for murder

The sentencing framework for murder is distinct within the wider sentencing framework. Murder is the only offence which carries a mandatory life sentence, and it is the only offence for which the sentencing framework is in legislation under the remit of Parliament, and not in sentencing guidelines under the remit of the independent Sentencing Council. The judge’s role following a conviction for murder is to set the minimum term an offender must serve before they can be considered for release.

The legislative framework for the determination of the minimum term is primarily contained within Schedule 21 to the Sentencing Code. This was first introduced in the Criminal Justice Act 2003, over 20 years ago. Multiple, piecemeal amendments have been made to the framework since then, and it has never been subject to wholesale review. This now contrasts with the Sentencing Council’s sentencing guidelines, which are regularly reviewed and updated with any changes being subject to thorough consultation.

Recent concerns particularly relate to gendered disparities for murders committed in a domestic context. These concerns include the inadequate reflection of prior abuse in minimum terms for abusive men who kill their female victims, and disproportionately long tariffs for women who kill their male abusers. Concerns have also been raised regarding the introduction in 2010 of an additional starting point of 25 years, particularly with respect to how this has influenced the perceived level of seriousness assigned by the framework to murders committed within the home.

The intention of this review is a complete reconsideration of the sentencing framework for murder, with a view to making recommendations for a new Schedule 21 to the Sentencing Code.

Relationship with other reviews

The Ministry of Justice has recently commissioned a separate, independent Sentencing Review, chaired by the Rt Hon David Gauke. The Sentencing Review is due to submit its findings to the Lord Chancellor by Spring 2025.

The Terms of Reference for that review state:

“There are some important areas which we consider are best-placed to be progressed outside of the review. The review will not consider wholesale reform of the murder sentencing framework. Whilst the review may consider the impact of sentencing for murder on the wider sentencing framework, the department is considering wholesale reform of homicide law and sentencing separately.”

This review will take account of any relevant recommendations made in the Sentencing Review.

Clare Wade KC published an independent Domestic Homicide Sentencing Review in 2023, to which the Government responded in July 2023. The review was restricted to homicides which take place in the context of domestic abuse. The review was “an examination of the circumstances in which the death of a person aged 16 or over has or appears to have, resulted from violence abuse or neglect by a person to whom he or she was related or with whom he was or had been in an intimate relationship”: see the Domestic Homicide Sentencing Review (2023) p 111.

The Government now intends to implement more of the recommendations from this review. However, one of the reasons it has also asked the Law Commission to look at the totality of the sentencing framework for murder is due to the limitations of considering the operation of Schedule 21 only within the context of domestic murder (per the terms of reference for that review).

The Sentencing Council

The Sentencing Council for England and Wales is an independent, non-departmental public body which was set up in 2010 to promote greater consistency in sentencing, whilst maintaining the independence of the judiciary. The Council produces guidelines on sentencing for the judiciary and criminal justice professionals and aims to increase public understanding of sentencing.

As our Terms of Reference make clear, this review will not make recommendations for change to sentencing guidelines, which are the preserve of the Sentencing Council. However, we recognise that any recommendations we make may have consequences for the relevant sentencing guidelines.

We intend to work closely with the Sentencing Council, as agreed between the Commission and the Chairman of the Sentencing Council.

Exclusions

This review is focused on problems with the existing law relating to homicide – largely the “core” offences of murder, manslaughter and infanticide, defences and the sentencing framework for murder. As the terms of reference above make clear, we have agreed with the Ministry of Justice that some issues are not appropriate for the review and should be explicitly excluded.

The following was included in the terms of reference for the 2006 review:

“The review will only consider the areas of euthanasia and suicide inasmuch as they form part of the law of murder, not the more fundamental issues involved which would need separate debate. For the same reason abortion will not be part of the review.”

The operation of the homicide offences is inevitably relevant to the voluntary termination of life and assisted dying. However, these are matters of grave public policy and will not be dealt with in this review, except so far as necessary to recommend coherent homicide law reform.

Nor will the review consider offences relating to the causing of harm to a fetus.

Methodology

In common with all Law Commission work, this review will be open, inclusive and evidence-based. It will involve a combination of research, consultation, and analysis.

The review will include consultation with judges, legal and criminal justice practitioners, victims’ groups and representatives, parliamentarians, academics, and third-sector organisations.

We will also consult with homicide offenders in so far is it is practical and appropriate to do so.

These offences are the most serious recognised by law, and a matter of general public interest. Our published consultation will be open to all. We will also consider the need to include a public opinion component in our work to ensure the review reflects societal values and maintains public confidence in the justice system.

Recently the Justice Committee in the House of Commons noted the gap between public perceptions of sentencing and their reality. A report from the Sentencing Academy (referred to by the Justice Committee) found evidence that sentence length for murder was not well understood.[2]

This review represents an opportunity to seek to address some of those concerns. A clear, more coherent sentencing framework should itself improve public understanding.

Timing

Work on this review will begin in early 2025. We will at that point publish a detailed timeline setting out the life of the project as we anticipate it.