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Crim Law and Philos (2007) 1:157177

DOI 10.1007/s11572-006-9017-7
ORIGINAL PAPER

Whats wrong with murder?


William Wilson

Published online: 3 January 2007


 Springer Science+Business Media B.V. 2006

Abstract In a rational system defences should interlock with the elements of


the offence to ensure that conviction labels are differentiated according to the
defendants degree of wrongdoing and culpability.The overall grading structure of
criminal homicide, as represented in contemporary doctrine, goes some way to reflect
this ethic. But the substance lacks precision and, in some key details, moral coherence.The recent Law Commission Consultation Paper, in a pragmatic and sensible
attempt to rid the law and procedure of murder of the malign influence of the
mandatory sentence, has unnecessarily compromised such structural coherence as it
currently enjoys and which could properly form a satisfactory basis for reform already
precise and morally coherent.This is evident both in relation to the abandonment of the
attack based template for the fault element in murder, and also in the unwillingness to
view the partial defences as affecting the wrong in homicide as opposed to the grade.
Keywords Murder Structure of homicide Manslaughter Mandatory sentence
Murder by attack Reckless indifference Intention Partial defences
Murder by omission
Introduction
Whats wrong with murder? Very little, successive English Governments seem to
have thought, having ignored any number of official reports recommending the
overhaul of the law of homicide. Nevertheless the Law Commission has been asked
to undertake yet another review. The hope is that this time its recommendations may
be implemented, because the law of murder, and indeed of homicide generally, is in
desperate need of reform. In the oft quoted words of Lord Mustill, it is permeated
by anomaly, fiction, misnomer and obsolete reasoning.1 This would be less of a
1

Attorney Generals Reference (No. 3 of 1994) [1998] AC 245, 250.

W. Wilson (&)
School of Law, Queen Mary, University of London, Mile End Road, London, E1 4NS, UK
e-mail: w.g.wilson@qmul.ac.uk

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concern were it not for one thing. Imprisonment for life, like the death sentence,
which preceded it, is mandatory for murder. Judges have no sentencing discretion.
Their power is limited to recommending a minimum tariff, which for standard cases
is 15 years, before which a person cannot be considered for release on licence. This
compares with manslaughter where, although the life sentence is available for the
most serious cases, the judge is not bound even to impose a custodial sentence.
The sloppy and anachronistic thinking behind the mandatory sentence is that it
declares and sustains murders symbolic moral uniqueness,2 a justification which harks
back to biblical days when killing was understood to be an assault on the natural sacred
order, one which could only be expiated, in the manner of a sacrifice, by execution of
the slayer himself (Fletcher, 1978). This obsolete mindset sustained the practice,
relatively common until the 17th century, of prosecuting animals for homicide.3 In a
famous case a pig was sentenced to death in full court for killing and devouring a
child.4 The collision between the ancient and modern paradigms of responsibility is
amusingly illustrated by the fact that her piglets, who were charged with her, were
acquitted on account of their immaturity and the bad example set them by their
mother. We no longer prosecute pigs, but we still have the mandatory sentence and the
obsolete reasoning behind it which sustained the practice. The problems do not end
there. It has proved difficult to capture in coherent and consistent doctrine exactly
what it is that sets a murderous killing apart from others (See Blom-Cooper & Morris,
2004: 174175; Mitchell, 1998). Justice demands not only that the dividing line between murder and manslaughter should be clear enough to ensure that like cases are
treated alike, but also that it should make moral sense. Both in substance and in form,
the existing English homicide law lacks rationality, specifically:
1. There is a lack of clarity about the basis for distinguishing murder from manslaughter. Is it a conceptual differencethat murder is a different kind of wrong
from manslaughter, as theft is different from fraud? Or is it a difference in
seriousness, so that the basic offence is the same, but the murder label is
reserved for the most heinous killings?
2. There needs to be closure on what it means to intend to kill someone. Beyond
cases of acting in order to kill, is acting with knowledge of the moral certainty of
death also a case of intentional killing; or is it simply a state of mind from which
(presumably direct) intention may be inferred?
3. A related issue concerns the availability of defences. In a rational system,
nobody should be convicted of murder if they have an excuse or justification for
what they have done. Defences should ideally, then, interlock with the elements
of the offence so as to ensure that nobody is convicted of murder who should be
convicted of a lesser offence or acquitted entirely. Should it not make a difference to the offence label that, for example, the defendant had a good motive?
Diane Prettys husband wished to be able to exercise power on her behalf to
terminate her life and suffering when she reached the final stages of motor
neurone disease. Tony Martin shot an intruder in the back because he wanted to
teach him a lesson. Private Clegg shot dead in the heat of the moment someone
he mistakenly thought was a dangerous terrorist. Mrs. Ahluwalia, at the end of
2

CLRC 14th Report on Offences Against the Person (1980) para. 15.

An example forms the basis of chapter 3 of Barnes (1990).

On this, see Evans (1987), and generally.

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her tether after years of brutality and misery at the hands of her husband,
decided that she had had enough, and so killed him in his bed. Mr. Lynch
was threatened with death if he refused to drive a ruthless gunman to the
place where he intended to kill a policeman, and capitulated to the threat.
Each of these is (or in the case of Diane Prettys husband would have been)
guilty of murder in domestic law. Should they not have at least a partial
defence?
4. Critics complain that murder is under-inclusive by ignoring some killers who,
without intending death or serious injury, seem to display, no less than intentional killers, the killers contempt for the sanctity of life. When, if ever, should
killing by risk-taking amount to murder?
5. Is it right that a person can be guilty of murder upon proof of an intention to
cause serious injury alone? How can serious injury be defined precisely enough
to satisfy the legality principle? Should serious injury be defined as lifethreatening injury, so as to conform to the correspondence principle? Should it
be necessary for the defendant to appreciate that the injury intended carries this
risk?
6. It is controversial, at best, that when D aids and abets P to commit crime X, he
should be guilty as an accessory to murder if P also kills in the course of committing X, just so long as he contemplates that P might kill with the mens rea for
murder.
I do not intend to explore all of these issues, many of which have suffered
extensive analysis in previous reports and academic commentaries. In this paper I
intend to concentrate on the Law Commissions proposals concerning murder and
the structure of homicide.5 I shall not, therefore, examine substantive proposals
concerning manslaughter, accessoryship, defences, or the meaning of intention,
except in so far as they cast light upon the cogency of the structure proposed. Nor,
indeed, shall I explore a still deeper problem which, understandably, is left outside
the Commissions terms of reference. The law of homicide protects people without
the slightest vestige of humanity, as when they lack a functioning brain or are in a
permanent coma. It does not protect the great apes although we are genetically
almost indistinguishable and share almost all the core attributes of human-beinghoodintelligence, empathy, consciousness, enterprise, and sociability. How long
must it be before the very idea of what it is to be a human being suffers serious
analysis?

What is murder?
The present elements of murder comprise a killing of a human being in pursuance of
an intention to kill or, alternatively, an intention to cause serious injury. Underlying
this legal concept is, so we are led to believe, a moral concept. Certain killings have a
unique quality about them which differentiates them from the pack of other
unlawful killings and which, as I have explained, sustains the fragile link between
murder and its unique sentence. The problem is that this quality is difficult to pin
down. Although core cases of murder and manslaughter may be easy to distinguish,
5

Law Commission (2005). Paragraph references in the text of this article are to this consultation
paper.

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there exists a substantial moral grey area where precise categorization is difficult.
The apparent absence of such a test has encouraged some distinguished commentators to insist that murder and manslaughter should not be differentiated at all at
the legal level, since they are not sufficiently differentiated at the moral level to
justify the attempt. Thus Blom-Cooper and Morris have argued for a unified law of
homicide which makes questions of attitude, context, and blame relevant to sentencing but not to conviction.6 Are they right? Is there really no core moral concept
of murder that can be profitably translated into a distinct legal offence?
Empirical research into public perceptions of homicide provides support for the
Blom-Cooper/Morris proposal. In Mitchells study, for example, it is apparent that
the views of interviewees as to the gravity of different killings vary according to the
context, the motivation of the killer, and the relationship of the partiesvariables
which would seem to be too diffuse to convert into a coherent package.7 The historical record also supports the claim that there is no self-evident moral test governing the distinction between murder and manslaughter.8 The notion of murder as a
special kind of killing is a fairly recent idea. The 10 commandments tell us not to kill,
nothing more fancy.9 It is not until the middle ages that a secular idea takes hold in
which the emphasis, as enshrined in the term malice aforethought, is on culpability
rather than on the mere fact of killing, but no fixed meaning can be identified in the
various attempts to characterise this mental element.10 It is only in the modern era
that malice aforethought is translated into a technical descriptor, which supposedly
requires no moral evaluation of the defendants conduct, but identifies specific
individual states of mind, namely intention and foresight, as characteristic of
murderous killing (Stephens Digest, 1894).

Jurisdictional comparisons
George Fletcher explains the distinctive form of doctrinal development for crimes,
which articulate forms of moral wrongdoing as paradigmatic in nature. The fact of
being rooted in the common law presupposes a degree of judicial creativity to keep
the nature of the criminal wrong largely congruent with the underlying social prohibition. Just as the ways of hurting people are not closed, so also crimes of violence,

Blom-Cooper and Morris, op. cit. n. 6 above. See also Lord Kilbrandon in Hyam V DPP (1975)
AC 55, 96.

Mitchell, op. cit. n. 6 above. Despite this observation, Mitchell does not subscribe to the BlomCooper and Morris school of throught.

It also seems to suggest that some people may feel sufficiently strongly that their own judgment is
correct as to be potentially resistant to a judicial direction on the matter.

Victor Tunkel has pointed out to me that this position is not uncontested, and that biblical texts
distinguish, for example, between accidental and malicious killing. But see generally Fletcher, op. cit.
n. 3 above, ch. 5, for a full discussion.

10
Bracton defines malice aforethought as occurring where one in anger or hatred or for the sake of
gain, deliberately and in premeditated assault, has killed another wickedly and in breach of the
Kings peace. 2 On The Laws and Customs of England 341. Blackstone (4 Commentaries on the Law
of England, 201) understood it to mean simply that the defendant did not kill accidentally and had no
justification or excuse for the killing. Foster (1762) famously described it as indicating a heart
regardless of social duty and fatally bent on mischief. See generally Fletcher, op. cit. n. 3 above,
ch. 4.

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rooted in the moral precept that hurting people is wrong, are open and responsive to
new ways of hurting people.11 An examination of other jurisdictions, including noncommon law jurisdictions, indicates that no clear consensus has been achieved as to
what murder comprises, let alone how it is to be articulated. One approach is to be
found in the Canadian Criminal Code, where labelling precision takes priority over
the attempt to articulate a socially grounded moral basis for the differentiation:
229. Culpable homicide is murder
(a)

where the person who causes the death of a human being


(i) means to cause his death, or
(ii) means to cause him bodily harm that he knows is likely to cause his death,
and is reckless whether death ensues or not;

(b)

where a person, meaning to cause death to a human being or meaning to cause


him bodily harm that he knows is likely to cause his death, and being reckless
whether death ensues or not, by accident or mistake causes death to another
human being, notwithstanding that he does not mean to cause death or bodily
harm to that human being; or
(c) where a person, for an unlawful object, does anything that he knows or ought to
know is likely to cause death, and thereby causes death to a human being,
notwithstanding that he desires to effect his object without causing death or
bodily harm to any human being.
230. Culpable homicide is murder where a person causes the death of a human
being while committing or attempting to commit high treason or treason or an
offence mentioned in section 52 (sabotage), 75 (piratical acts), 76 (hijacking an
aircraft), 144 or subsection 145(1) or sections 146148 (escape or rescue from prison
or lawful custody), section 270 (assaulting a peace officer), section 271 (sexual assault), 272 (sexual assault with a weapon, threats to a third party or causing bodily
harm), 273 (aggravated sexual assault), 279 (kidnapping and forcible confinement),
279.1 (hostage taking), 343 (robbery), 348 (breaking and entering) or 433 or 434
(arson), whether or not the person means to cause death to any human being and
whether or not he knows that death is likely to be caused to any human being, if
(a)

he means to cause bodily harm for the purpose of


(i) facilitating the commission of the offence, or
(ii) facilitating his flight after committing or attempting to commit the offence, and the death ensues from the bodily harm;

(b)

he administers a stupefying or overpowering thing for a purpose mentioned in


paragraph (a), and the death ensues therefrom; or
(c) he wilfully stops, by any means, the breath of a human being for a purpose
mentioned in paragraph (a), and the death ensues therefrom.
A different kind of approach is taken by the Swedish Code, which is noteworthy
in realising a differentiated criminal homicide, without presenting murder as conceptually distinct from other killings.

11

Fletcher, op. cit. n. 3 above, ch. 2.

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Section 1: A person who takes the life of another shall be sentenced for murder to
imprisonment for 10 years or for life.
Section 2: If, in view of the circumstances that led to the act or for other reasons,
the crime referred to in Section 1 is considered to be less serious,
imprisonment for manslaughter shall be imposed for at least 6 and at most
10 years.
It is for the court to decide, on consideration of all the evidence, whether the
relevant killing is worthy of being labelled and punished with maximum severity.12
This provision solves, at a stroke, most of the problems which led Blom-Cooper and
Morris to advocate an undifferentiated homicide, specifically, the need for cogent
and watertight boundaries between murder and manslaughter, and for a range of
defences/offences capable of keeping the murder label apposite for the gravest cases.
The indeterminacy of this provision is also its greatest weakness, however, as it
renders differentiation a matter of grading only. This is out of line with the common
law tradition which, reflecting the morality upon which it is based, treats murder and
manslaughter primarily as different wrongs rather than as grades of the same wrong.
This latter approach informs the simple codification of the basic form of murder in
the corresponding provision of the New South Wales Crimes Act 1900:
18(1)(a) Murder shall be taken to have been committed where the act of the
accused, or thing by him or her omitted to be done, causing the death charged,
was done or omitted with reckless indifference to human life, or with intent to
kill or inflict grievous bodily harm upon some person or done in an attempt to
commit, or during or immediately after the commission, by the accused, or
some accomplice with him or her, of a crime punishable by imprisonment for
life or for 25 years.
There are important things at stake in choosing this type of legislative approach.
Precise, meaningful offence labels are as important as justice in the distribution of
punishment. These labels help us to make moral sense of the social worlda matter
of key concern, as society becomes increasingly heterogeneous. A criminal provision
is better able to communicate the boundaries of socially acceptable behaviour if it
packages crimes in morally significant ways, a point which comes across strongly in
Mitchells study of public attitudes to murder. This is why we have various specific
crimes of reckless endangerment such as causing death by dangerous driving rather
than simply manslaughter (See Horder, 1994a, b). Part of the task of a reformed law
of homicide must, therefore, be to declare the scope of the wrong in murder, thereby
communicating societys core values. Doctors need to know, for example, when they
can legitimately perform surgery, or when it is lawful to administer drugs, which will
accelerate the death of a patient. Police officers need to know when they can shoot
to kill. All of us need to understand that it is a greater wrong to kill someone in anger
than to kill someone while driving recklessly; that wounded, individual, family, or
religious honour affords no licence to kill, and, generally, that however justified we
may think our killing, societys moral structure has it differently.
This is enough in my view to rebut the type of approach advocated by BlomCooper and Morris, but there is another equally telling pragmatic reason. There is
12
The Code now contains a scheme of mitigating and aggravating criteria in line with the Model
Penal Code.

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no point in advocating a reform unless it stands a chance of a hearing. As I shall


explain, the Law Commission embraces this pragmatic philosophy with a vengeance,
and its proposals are all the better for it. Before I examine the Law Commission
Consultation Paper in detail I shall provide a focus for the analysis of the proposals
by indicating what we should be looking for in terms of the basic grammar of
reforming legislation.
Creating a rational structure for homicide
Core criminal norms embody obligations, which depend for their authority not
simply upon the existence of the rule, as is the case with regulatory offences, but
upon a general acceptance of the standards concerned. Murder and other crimes of
violence, theft and fraud, for example, embody social prohibitions that are easily
understood and articulated. Do not kill. Do not steal. Do not defraud. Do not hurt.
What is special about the embodiment of these obligations in the rules of criminal
law is that their presence serves both to declare and to differentiate societys core
values. In a rational system these differentiated obligations will be replicated in
differentiated offence labels and in the punishment price tag attached. What constitutes these as offences is not simply the physical manifestation of the defendants
conduct (death, harm, loss of property) but also the mind that accompanies it. The
mental element in murder is, then, a defining element in the prohibited conduct
rather than, as traditional criminal theory understands it, simply a filtering or grading
mechanism (See Robinson, 1990, 1993) It is the mental element which serves to
declare and sustain the important moral distinctions to be drawn between murder
and manslaughter, between stealing and borrowing, between stealing and fraud,
between attempted rape and indecent assault and so on.
In murder the mental element differentiates two moral prohibitionsthe ancient
do not kill and the modern do not endanger others prohibitions. Domestic law
currently differentiates breaches of the two prohibitions by characterizing the wrong
in murder as causing death by an attack, typically involving an act of serious
violence,13 whereas, in (involuntary) manslaughter, it is causing death by acting
dangerously.14 A person who is stabbed and killed by a vicious assailant is wronged
in a quite different way than someone who dies having received a non-deliberate
wound in the course of an informal sword-fight. It is right to signal this by a separate
offence specification, which also, incidentally, grades the former offence as hierarchically more serious than the latter (Horder, 1994a, b). The substantive standards
required to avoid responsibility for murder are thus articulated with maximum moral
clarity: Do not intentionally inflict serious injury on another. If you do, and they die
as a result, you are guilty of murder (See Wilson, 2000: 2324). As I shall now
explain, this clarity is not replicated in the new proposals.
The law commission consultation paper
What is immediately noticeable (and welcome) in the Consultation Paper is that it
takes as its starting point the common law tradition. The merit of the common law
13

Typically, but not necessarily. Starving and poisoning fall within the attack paradigm.

14

For full consideration see Duff (1990), and generally.

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approach to homicide is that it has attempted to achieve, and in large part succeeded
in achieving, practical solutions to the problems of categorisation which so exercised
Blom-Cooper and Morris, and has thus also succeeded in organising the relatively
disparate moral responses to different types of killing that were evident in the interviewees responses in Mitchells empirical research. Weaknesses undoubtedly
remain, but these are weaknesses, which are best resolved by refining the existing
conceptual vocabulary of the common law rather than by importing legal transplants
from other socio-legal cultures.
The commission proposes the following structure of homicide offences
1.38 First degree murder (mandatory life penalty):
(1)

Intentional killing.

1.39 Second degree murder (discretionary life maximum penalty):


(1)
(2)

(3)

Killing where the offender did not intend to kill but did intend to do serious
harm.
Recklessly indifferent killing, where the offender realised that his or her conduct involved an unjustified risk of killing, but pressed on with that conduct
without caring whether or not death would result.
Cases in which there is a partial defence to what would otherwise be first
degree murder [this includes duress, provocation and diminished responsibility].

1.40 Manslaughter (fixed term of years maximum penalty):


(1)
(2)

Killing through gross negligence;


Killing through an intentional act intended to cause injury or involving recklessness as to causing injury.

The overall structure is in fact instantly recognizable. The cynic might indeed
conclude that it is more designed to sidestep the problem of the mandatory
sentence than to advance any substantive principle.15 Manslaughter is limited to
cases of dangerous conduct, manifesting no direct challenge to the sanctity of life.
Murder is constituted by conduct involving such a challenge, but is divided into
two degrees of gravity. An intentional killing constitutes the highest degree, in
common with the position in many American jurisdictions.16 The Law Commission rejects creating any further bases for differentiation such as those involving
extreme cruelty, infant victims or police officers, for which some have argued.
The view taken is that these are matters to be taken into account at sentencing.17
I agree. Simplicity is key.
Looking more closely at the proposals, a subtle but substantial conceptual
change has, nevertheless, been undergone by the do not kill prohibition. Previously characterised by an intentional attack, its new characterisation is conduct
displaying the actors contempt for the sanctity of life, which may or may not
15
In the United States homicide is divided into different, generally three, degrees of gravity:
first- and second-degree murder, with manslaughter as a third degree. Maximum sentences reflect this hierarchical configuration with the death penalty, typically, limited to first-degree
murder.
16

See for example the Pennsylvanian Consolidated Statutes, Title 18.

17

Cf. Model Penal Code 210.6.

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involve such an attack. While perfectly understandableit reflects the position in


other common law jurisdictionsI think that this change is a mistake. At present,
whatever its faults, domestic doctrines mechanism for separating the do not kill
and the do not act dangerously prohibitions is marked by a high degree of
conceptual precision. This precision is not replicated in the Law Commission
proposals, as will become apparent upon further examination of the proposed
grading structure.
First-degree murder
The Law Commission take the view that the moral basis of the crime of murderthe
sanctity of life idealrenders intentional killing especially heinous, worthy of being
accorded a separate offence label and the symbolic mandatory sentence. This view, if
common, is not uncontroversial and, indeed, stands in uneasy opposition to the
proposed fault element of reckless indifference, which implies the acceptance of some
kind of evaluative basis for identifying the most heinous killings (Ashworth, 2006:
259260). Indeed, even where defences are not involved, it is widely understood that a
reckless killing may be more heinous than an intentional killing. A person who shoots
a gun into a moving vehicle or an occupied house for the fun of it attracts more
revulsion and indignation than a similar shooter who kills in revenge for a past attack.
A parent who fails to feed her child knowing it is starving to death attracts more
opprobrium than one who, at her wits end, suffocates her screaming child. My
concern here can be simply expressed. If contempt for the sanctity of life is the new
moral focus of the law of murder, this should be reflected in the grading. It is not.
Intentional killings and the role of defences
The new grading structure highlights another problem with the Law Commissions
terms of reference, namely the matter of defences. In a fully rational system, offence
and defence elements will dovetail so as to ensure that no partly or fully justified or
excusable killings remain subject to (full) penalty. The criminal law is structured in
this way because, as Mitchells research shows, our everyday moral responses to
instances of intentional wrongdoing such as killing are sensitive both to the actors
motive and to the context within which his intention was formed. But the State
cannot allow these popular ideas, which are more likely to have been formed in
saloon bars than in the crucible of informed debate, to dictate the content of the
criminal law. Its job is to specify clearly the rules that govern cases in which the
balance of reasons for and against action may be misunderstood. Where, as in
murder, the conduct element embodies a moral proscription, lending an actors
reasons for violence a defining role in the offence would be self-defeating (See Raz,
1979, ch. 1 and generally). It would muddy the moral ideal that killing people is
wrong and so should not be attempted (See Horder, 2000: 173) By compartmentalising the fault element into definitional mental element and defences the criminal
law can present itself in a way which can best communicate the moral message which
a given offence definition embodiesin murder, do not killwhile at the same time
ensuring that options remain for those whose reasons for killing are adjudged
socially acceptable, and that censure and punishment is graded appropriately for
those whose conduct is (fully) excusable. When we consider how diffuse are the

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values of ordinary decent citizens these days we can see how important it is for the
law to be structured to communicate social values. The enduring controversies about
euthanasia and abortion are prime examples. People who support the same political
party, follow the same religion and football team, enjoy the same books, drink
together in the same pubs, and structure their lives around the same moral values
may nevertheless disagree fundamentally as to whether abortion, say, or euthanasia
is a matter of personal choice, of the best interests of all concerned, or inviolable
moral obligation (See Dworkin, 1994) We need a steer on this. Ideally we need a
criminal code, which exposes all. We will not get one of those in the foreseeable
future. Well thought out reform is the next best thing. The Law Commission Consultation Paper, by largely excluding consideration of the role of general defences in
the overall framework of criminal homicide, leaves too much to chance.
An illustration may suffice. The Consultation Paper excludes consideration of the
defence of necessity. This renders the formulation of the fault element crucial,
particularly in relation to first-degree murder, for obvious reasons. The two definitions of intention that the Commission considers (paras. 4.34.4) render knowledge
of the virtual certainty of death or serious injury intention as a matter of law or,
alternatively, a basis from which the jury, as now, is entitled to infer (presumably
direct) intention. This latter formulation will enable juries, as is their wont, to find
(or not find) that the defendant intended to kill/cause serious injury depending upon
the degree of perceived justification.18 A topical problem will highlight the importance of the correct formulation. We are led to understand that the armed services
are under instructions to shoot down any plane, including passenger planes, which
they have reason to believe has been hijacked to commit an act of terrorism. Suppose that a passenger plane is hijacked and is shot down by an RAF pilot, with the
loss of 200 lives, within a mile of crashing into Canary Wharf. Suppose too, which is
unlikely, that a prosecution for murder is brought against the pilot. If knowledge of
certainty constitutes intention as a matter of law, the pilot has satisfied the elements
of the crime of murder. She has killed 200 people and she did so intentionally. She
may not have wanted to, but she intended to do so nevertheless. Her good motive
(trying to save the lives of the inhabitants of Canary Wharf) is not now relevant to
the question of whether she intended to kill the passengers, which is a simple yes/no
question. Of course, it would be relevant for the purpose of deciding whether she
displayed reckless indifference for the purpose of second degree murder, but, on this
reading of the scope of intention, her criminal liability for first degree murder,
assuming she has no statutory authority, depends upon being able to raise a defence.
Has she got a defence? We would probably hope so, not least to ensure that the
wrongs involved in first and second-degree murder are properly ranked and characterised. But the legal position is not clear. The question would have to be decided
there and then on the basis of the judges take on when and how far acting for the
social good in circumstances of dire necessity may render lawful what would
otherwise be unlawful. This is a question of evaluation, unlike the offence element,
which is a yes/no question. The only authority to help her is Re A (conjoined
twins),19, a case whose ratio is widely considered to be specific to cases of medical
intervention. It would have been useful if this interface between definition and
18

See for example Adams (1957) Crim LR 365; Gillick [1985] 3 All ER 402; W. Wilson, Doctrinal
Rationality after Woollin (1999) 62 MLR 447.

19

[2000] 4 All ER 961.

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defence had received a more thorough analysis, since the moral and doctrinal
challenges raised by such cases are considerable and certainly not exhausted by the
range of considerations addressed in Re A.20
A more practical problem is the likely effect this new grading structure will have
on guilty pleas. There will now be a strong inducement on the part of defendants to
plead not guilty to first-degree murder, and an equally strong inducement for
prosecutors to accept a plea of guilty to second-degree murder.21 Whether this is a
good thing or a bad thing is less significant than the fact that it might damage the
credibility of the package as a whole by threatening to neutralize the mandatory
sentence.
Second-degree murder
The Law Commission propose three categories of second degree murder:
killing with the intention to do serious injury
killing with reckless indifference, and
killing mitigated by partial defence.
Killing with the intention to do serious injury
There are two major problems currently associated with this fault element. First, it
allows a murder conviction in cases where no realistic threat to life is posed and even
where, intending not to kill, the defendant takes pains to minimize the risk of
death.22 Mitchells study shows that the public does not think the intention to cause
serious injury, without more, should sustain a conviction for murder. If this fault
element were a matter of grading alone this view would be difficult to argue against.
Intending to kill someone is, all things being equal, a more blameworthy state of
mind than intending to cause them serious injury. Should it then be a requirement
that the injury intended be of a nature to put the victims life at risk and, if so, should
the defendant be aware of such risk? The Law Commission considered such tests,
but concluded that in most conceivable cases it would add nothing to what we have
already (See Criminal Law Revision Committee, 1976), and would, in any event,
complicate the proof of guilt.23 On this, I think the Commission is quite right. So
long as we are clear that what we are looking for is a distinct wrong rather than a
distinctive level of culpability, representative labelling can be achieved. This wrong,
as has been explained, is centred in the paradigm of killing in the course of an act of
serious violence. The concern I have with this proposal is not, as some have argued,
that it confounds the so-called correspondence principle (See generally Mitchell,
1995), but, again, that it does not cohere with the changed philosophy underpinning

20

The Commission limited their discussion to the doctrine of double effect in so far as it affects
medical interventions at pp. 112118.
21
This was the strong view of the respondents in the questionnaire sent to Crown Prosecutors: see
Consultation Paper, Appendix B, 273.
22
Commonly cited examples include practices such as the breaking of limbs or knee-capping
adopted by terrorist or criminal organisations for purposes of punishment.
23

As the prosecutors responses indicate in Appendix B to the Consultation Paper, pp. 287290.

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the reformed structure of homicide. This, as has also been explained, is now centred
in conduct manifesting contempt for the sanctity of life. With such a focus, how can
foresight of death not be central to the concept of serious injury? (Horder, 1997).24
The broader meaning attributed to serious injury compounds the problem. The
Law Commissions provisional conclusion is that injury is not to be regarded as
serious unless it is: of such a nature as to endanger life, or to cause, or to be likely to
cause, permanent or long term damage to a significant aspect of physical integrity or
mental functioning (para. 3.144). As the Commission admits, this definition is unclear. I would go further: it is unclear and (unnecessarily) indeterminate. A jury is
entitled, but not bound, to find an injury serious when it satisfies the definition. This
will enable it to eschew a guilty verdict in cases in which the injury intended, though
serious, is thought insufficiently serious to justify a murder verdict. Given that the
Commissions own definition of manslaughter includes a killing attributable to an act
of violence falling short of mortal injury, this indeterminacy is unacceptable.25 It is
clearly crucial, assuming that the murder/manslaughter distinction goes to wrong
rather than grade, that the difference between serious and non-serious injury is
articulated with maximum precision. Even in its own terms the definition is not at all
clear. How many fingers/toes need to be severed before permanent damage to a
significant aspect of physical integrity is caused? Does a single blow over the head
with a baseball bat risk the likelihood of permanent or long term damage to a
significant aspect of mental functioning? Likelihood from whose point of view?
What is the role of expert evidence here? How can we expect the jury to make sense
of jury directions couched in such terms? A better starting point might be the
following modification of the Irish model, which the Commission also considered:
injury which creates a substantial risk of death or which causes or is likely to
cause serious disfigurement, serious protracted impairment of mental function,
or serious loss of, or impairment to, the mobility or function of the body as a
whole.26
Such a definition seems to embrace, with reasonable determinacy, injuries of sufficient gravity to justify the actors characterisation as a murderer rather than, as in
the case of causing death by acting dangerously, a manslayer.
Recklessly indifferent killing
A major addition proposed to the present fault element in murder is the second
category of second-degree murder, namely recklessly indifferent killing. This
proposal reflects the change in the philosophical basis of murder from one centred in
24
I agree with the Criminal Law Commissioner who has argued elsewhere that by setting the causal
ball rolling by means of an intentional attack on the victim actors lose the right to abjure full
responsibility for the consequences, whether or not such consequences were foreseen, so long as
those consequences are not disproportionate to what was intended. We cannot rely on causal
outcomes always to match our expectations.
25
It is manslaughter where a person by his or her conduct causes the death of another intending to
cause injury or being reckless as to whether some injury was caused, where the conduct causing, or
intended to cause, the injury constituted an offence. Para. 3.190, adopting the proposal in London,
Home Office (2000).
26

Consultation Paper para. 3.119; Offences Against the Person Act 1997, s. 1(1).

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attack to one emphasising the killers contempt for the sanctity of life,27 and is an
important departure from tradition. Criminal doctrine currently boasts the ability to
judge whether a killer is guilty of murder or manslaughter without reference to
moral considerations such as context or motivation. The only question for the court
is a technical one. Did the defendant intend to kill or cause serious injury? Significantly, then, the Law Commission embraces, in the notion of reckless indifference,
the opposing idea that the line between murderous and lesser killings requires an
attitudinal evaluation rather than a technical analysis of the defendants conduct.28
The notion of reckless indifference is generally thought to capture an elusive
analytical element implicit in the rather less analytical notion of wicked recklessness, or depraved heart in the American equivalent. A willingness to run risks is
not the same as being reconciled to their outcome. It is the latter attitude which
displays the moral hallmark of the murdererthe person who is happy to take
whatever consequence fate throws up and who, therefore, as good as intended to
kill. What this idea unfortunately fails to do is to provide a secure moral and evidential basis for the differentiation between murder and manslaughter. Should it
really make a difference to Mrs. Hyams offence label that she hoped her victims
would escape serious injury, or would have desisted had she know the outcome
would be fatal, when the message she sought to deliver to Mrs. Booth, her rival in
love, required her to be in the house before it was set alight? Could the jury be
expected to make sense of the legal relevance of her caring attitude in such a
context, when the attack took place in the early hours of the morning when she
would assume Mrs. Booth and her children were asleep?
Reform bodies have repeatedly rejected such an approach in relation to attitudinal descriptors such as wicked recklessness, on the ground that it is too imprecise
a concept to sustain a differentiated law of homicide. The concept of reckless
indifference is no better placed. The judges and public prosecutors, whose opinions
appear in the appendices to the consultation paper, share this view. Matters are not
helped by the rather sloppy definition of reckless indifference proposed.
D is indifferent, manifesting a couldnt care less attitude to death, when he or
she realizes that there is an unjustified risk of death being caused by his or her
conduct, but goes ahead with that conduct, causing the death. Ds own
assessment of the justifiability of taking the risk, in the circumstances, is to be
considered, along with all the other evidence, in deciding whether D was
recklessly indifferent and couldnt care less about causing death.29
As a definition of reckless indifference this is seriously wanting. A jury needs to be
clear about the difference between simple recklessness and reckless indifference. In
this definition we are offered both (conscious taking of an unjustified risk; couldnt
care less attitude towards death), with a puzzlingly restricted coda relating to Ds
own assessment of the justifiability of taking the risk. This final sentence does little
to clarify the jurys task. We are given opposition rather than simplicity, with two
sentences, which point in quite different directions. Compare, for example, the
rather better Model Penal Code provision (s. 210.2(1)(b)), which designates as

27

Mitchells research (op. cit. n. 6 above) indicates that the public favours this shift.

28

See Consultation Paper para. 3.150.

29

Para. 3.150.

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murder a criminal homicide committed... recklessly under circumstances


manifesting extreme indifference to the value of human life.30
Even so, the problem remains that the very concept of reckless indifference is
simply too indeterminate to sustain a differentiated criminal homicide. In the absence of explicit evidence that the defendant did care, jurors will presumably remain
free, as is their wont, to characterize the defendants recklessness as either murderous or not, according to the perceived degree of heinousness. Now, some may
argue that giving juries such power in the labelling of homicide is a positive merit
(See Horder, 1995). Since murder is a construct of social morality, its elements must
reflect that morality. Who better than the jury to execute this? But, as explained
above in relation to GBH murder, whether someone has committed murder is not a
matter of simple moral judgment. It is a matter of satisfying an offence definition
with a sufficiently high degree of specificity to justify the hugely symbolic label and
the penalty range attached to it.
I have argued elsewhere that there is only one secure way of marrying grade and
wrongdoing in cases of killing by risk taking (Wilson, 2006). This is to return to the
current conceptual underpinning of the do not kill prohibition, which is centred, as
explained earlier, in the notion of attack. At present, to be murder this attack must
be actuated by, and manifest in, one or other of two intentions, namely, to kill or to
cause serious injury to the victim. But a third variety of intention also embraces this
notion of attack so central to the domestic approach to murder, namely the intention
to expose the victim to the serious risk of death.31 Like the intention to cause serious
injury, and unlike most cases of reckless killing, intending to expose someone to the
serious risk of death necessarily involves the victimization of the object of that
intention. It is this necessity, which constitutes the defendants conduct as an attack
on the victims life. This formulation of the fault element is a much more precise and
relevant basis for murder than the contempt for life approach, or its reckless
indifference (or wicked recklessness) attitudinal proxy. The Irish Law Commission
considered two types of case to illustrate this approach: the terrorist who plants a
bomb in a city street, intending to damage property in the area and the person who
wantonly shoots into a moving train carriage or busy shop.32 Mrs. Hyam would be
another.
The Law Commission objects to this approach on the grounds that there is no
moral, even if there is an analytical, distinction between intending to create a risk of
death and foreseeing the risk of death, and, in any event, all cases of acting with
foresight of the inevitable risk of death would show reckless indifference. This is not
true, however, if intention is understood in its everyday non-technical sense of acting
in order to bring about a consequence. With this focus, a clear analytical and moral
distinction is created between those who act for the sake of the risk of death (e.g.

30
A clearer focus is provided by the following definition of reckless indifference: the attitude of
mind of someone who disregards an unjustified risk of death, in circumstances, which manifest a
couldnt care less attitude to that death. Evidence that D hoped that the risk would not materialise,
believed the risk to be justifiable, or would have changed his behaviour had he known that the
outcome would be fatal is to be considered in deciding whether such an attitude existed.
31

Considered at paras. 3.1693.170.

32

Irish Law Reform Commission, Homicide: The Mental element in Murder (LRC-CP 17-2001)
Consultation Paper, para. 4.032.

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Mrs. Hyam), who deserve to be treated as if they embraced death, and those who,
like the typical dangerous driver, act despite that risk, who do not.33
This formulation of the fault element also has substantial evidential advantages
over reckless indifference, where the jury will usually have little more than gut
feeling to go on in deciding whether D might (showing he cared) have acted
differently had he known that the outcome would be fatal. This test, rather, requires
the jury to consider whether the defendant would have acted differently if he had
known that there was no risk of death, for which the circumstantial evidence
available, for or against, is likely to be correspondingly stronger. So the shooter
would presumably not fire into a carriage or room he knew to be empty; for what
would be the point of it? Mrs. Hyam would presumably not/did not set fire to the
house until assured of the presence of the victim. She wanted to scare her after all.
Intending to endanger life is different from foreseeing and yet not caring that life will
be endangered. It demands a victim.
Killing mitigated by partial defence
Another important proposal is the addition of a third partial defence to murder,
namely duress. These partial defences (provocation, diminished responsibility and
duress), instead of reducing what would otherwise be a murder conviction to manslaughter, as at present, will reduce first-degree murder only to second degree murder,
thus avoiding the mandatory sentence. Provocation and diminished responsibility are
not to be defences to second-degree murder, but the Commission leaves open the
question of whether duress should be (paras. 5.775.78, 5.845.86). This package of
proposals needs careful analysis. The Commission concludes that where an intention to
kill was formed under appropriate conditions of provocation, duress or an abnormality
of mental functioning, it renders acting upon that intention partially excusable but not
so excusable as to justify an offence label other than murder. The basis for this proposal
is to ensure that the gravity of the defendants wrong is properly labelled which, given
the specific intention to kill, will not usually excite controversy.34
The major concern I have with this is that it appears to be out of line with the Law
Commissions own rationale for these excuses. For example, the reformulated
defence of provocation, which now includes overreaction in self-defence, emphasizes
the defences quasi-justificatory character, rooted in the justified anger or outrage
reasonable people experience upon being seriously wronged, or in the justified desire
to allay at all costs the unjust threat of death.35 I happen to disagree with this
rationale (Wilson, 2005). Killing in response to gross provocation is never a normal,
or even partially normal, response. The excuse is, rather, that we cannot expect
actors with the constitutional weaknesses of ordinary human beings always to
33
Contrast Mrs. Hyam, whose intention was to strike fear, with the defendant in Goodfellow [1986]
83 Cr. App. R. 23, whose purpose in setting alight his own council house was to be rehoused.
34
This was why the cogency of a partial defence of provocation was considered seriously in the
Commissions report on partial defences (No. 290, Partial Defences to Murder; London, The
Stationery Office, 2004).
35
Law Commission No. 290 (n. 49 above), 3.693.70: We favour as the moral basis for retaining a
defence of provocation that the defendant had legitimate ground to feel seriously wronged by the
person at whom his or her conduct was aimed, and that this lessened the moral culpability of the
defendant reacting to that outrage in the way that he or she did. It is the justification of the sense of
outrage which provides a partial excuse for their responsive conduct.

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measure up in times of extreme stress and it would be inappropriate for the state not
to recognize this fact.36 Be that as it may, as the Law Commission understands the
rationale, a reduction to manslaughter is surely more apt than murder, albeit second
degree murder. Such an offence label is surely too strong a designation for those
reacting, as an ordinary person might be expected to react, to gross provocation or
overreacting under fear of serious violence.
If this is true of provocation it is even more so with duress, which also operates to
reduce first to second degree murder. Intentional killing is wrong, even to allay the
threat of immediate death, but the wrong, possibly to a greater extent than provocation, is not comparable to the wrong in murder. Voluntary manslaughter, or a
more focused offence label, such as killing under provocation or duress, more
accurately reflects the wrong involved in killings as understandable as the Law
Commission defines them to be. No such strictures operate in connection with the
role of duress as a potential defence to second-degree murder where, unlike provocation, and for obvious reasons of consistency and coherence with the position in
respect of other offences, the Commission suggests that it might operate as complete
defence. Once again, at least for crimes of violence, one wonders whether a special
offence label would be more appropriate for offences committed under duress (See
generally Robinson, 1982).
With respect to diminished responsibility, the Law Commission concedes that it
might be thought unusual to label someone a murderer if a substantial cause of his/
her conduct is an abnormality of mental functioning. Nevertheless the objection is
dismissed as fastidious, and the logic as over refined. Sentencing guidelines will
ensure that no undue injustice is done, and a conviction for second-degree murder
will adequately differentiate the ordinary murderer from those with the defence
(paras. 6.2833). I am not sure that the argument is overly fastidious. The proposed
definition of diminished responsibility (para. 6.2(2)) is notably more rigorous and
precise than that which it would replace, not least in the requirement of a causal link
between the abnormality of mental functioning and the killing. Once this causal link
is insisted upon it must surely follow that the wrong for which the defendant is held
to account is something other than murder. It is a strange conclusion to draw that the
person concerned may be responsible for the killing in any sense comparable to that
of a person with normal mental functioning who kills in furtherance of intention to
do serious injury or disclosing reckless indifference.
Killing by omission
The Law Commission makes no separate recommendation regarding murder by
omission. Presumably the Commission shares the traditional view that, once a duty
of intervention is established, no meaningful distinction is to be drawn between the
definitional elements of murder by commission and those of murder by omission.
Ashworth, for example, states that an omission to perform a duty to safeguard the
welfare of another should be murder if combined with an intention to cause death
or serious injury. Intention in this context includes full knowledge of the certainty
of death or serious injury.37 This view, however, is not unchallengeable. Intentions
36
This view forms the basis of the corresponding provision of the American Model Penal Code s.
210.3(1)(b).
37

The Scope of Criminal Liability for Omissions (1989) 105 LQR 424, at 445.

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paradigmatically structure the actions by which we bring about changes in the


world.38 In core cases of murder by omissiona parent who deliberately starves her
newly born infant to deaththere is no undue conceptual impediment to describing
the death as having been intended or even in describing the parent as having intended to kill the infant. We do kill infants by starving them. Starving is a form (enddirected) that wrongdoing can take, albeit it necessitates no bodily movement to
achieve it. The difficulty arises in cases where the omission cannot be described as
negative action but is simply a case of permitting the death to occur. As Fletcher
remarks, a nurse who intentionally desists from saving the life of an ailing patient,
even where motivated by hatred, cannot comfortably be said to intend to kill them.39
It would be no conceptual error for the nurse to say Yes I wanted the patient dead,
but I drew the line at killing her. It is wrong to kill someone. If I had intended to kill
her I would have smothered her in her bed, but I did not want her dead that much.
Liability in such cases depends on an extended notion of intentionality, operative
also in murder by commission, which holds there to be intention wherever conduct
was designed to bring about death or, if not so designed, was known to involve that
consequence as a practical or moral certainty.
The problem with this analysis is that in cases of killing by commission there is
typically a moral congruence between what one knows will happen and what one
aims to achieve. Such a congruence will often be absent in cases of omission. If A, in
a rage, hurls his baby son against a brick wall without any purpose other than to
express his anger it makes every moral sense to dismiss the denial of an intention to
kill the child if he knows that this consequence is a practical certainty. Again, if
Adam locks the door of a burning room occupied by V, in order to prevent the fire
engulfing another room where he has precious documents, a denial of the intention
to kill can also be ignored. This time he intends to kill V not because he believes that
death is a practical certainty, although he may do. The intention is present although
he appreciates, just as he might in cases of direct intention, that there is a good
chance that V might escape because, for example, someone else present in the
building might open the door. However, if things go according to plan nobody will
open the door and allow the fire (and therefore V) to escape (See Smith, 1990).
The same analysis applies where Eve, seconds later, omits to unlock the same
door for the self-same reason as Adam. Those who conduct themselves in the certain
knowledge that the victims death will occur if things go according to plan act for a
purpose, which is morally congruent with that of those who act in order to kill.
Compare though the more typical case in which Eves reason for the omission is that
she has an urgent appointment to keep. Here there is no plan whose success is
predicated upon the death of V. She is simply indifferent, preferring to prosecute her
own interest at the expense of Vs. Her intention to kill, if she has one, derives from
the fact of knowing that (death) will occur in the ordinary course of events. Here,
however, a problem arises, namely, at any given time, Eve will not know, for certain,
that the consequence of her omission will be Vs death. What she will know for
certain is that V will die unless someone effects a rescue. This will usually be at least
38
As Duff puts it, making clear the logical linkage between intention, action, and its consequences,
and also the attack-based approach to murder: I act with the intention of bringing about a specified
result if I act as I do because I want that result and believe that my action might bring it about:
op. cit. n. 19 above, 63.
39
Op. cit. n. 3 above, 626. But one who seeks to engineer the death via inaction might be said to
intend to kill.

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a possibility, not least because duties of intervention tend to configure around similar
targets. A lifeguard at a swimming bath may know that a toddler will drown unless a
quick rescue is mounted but he will also know that the toddler is accompanied by
another duty-bearer who can typically be expected to intervene. Even where there is
no such probability, as in the case of adult swimmers, he can usually expect that
somebody will effect a rescue (cf. Alexander, 2002). The commitment (and attack)
presupposed by knowledge of practical certainty in cases of murder by commission
will usually, in cases of omission, only be manifest where, as in the case of Eve the
document protector, the omission is for a purpose whose fulfilment necessarily
involves the death of the other in the ordinary course of events.
It is probable, therefore, that the dearth of cases of killing by omission successfully prosecuted as murder in domestic law reflects the absence of evidence of a
mental attitude comparable to that displayed by ordinary killers. Only where there
is evidence of some fatal purpose to the omission will a conviction hold true to the
paradigm case of murder.
The Law Commissions new proposals partly accommodate the doctrinal problem
posed by Eve the timekeeper. By linking liability, as in cases of commission, to the
omitters attitude it renders a conviction for murder by omission a realistic possibility. If, but only if, she displayed reckless indifference to the prospect of death she
would be guilty of murder. Conviction would depend upon the jurys assessment of
the evidence as regards her attitude. Was the reason for her non-intervention that
she did not care; or that, as in the New South Wales case of Taber, she thought that
someone else would effect the rescue;40 or some other good (enough) reason to
deflect the charge of indifference? So, on the facts of Smith (1979) in which a
husband failed, out of respect for his wifes wishes, to call a doctor when it was clear
to him that she would die without medical attention, he would be guilty, at most, of
manslaughter. Acting out of respect for his wifes autonomy is not the same as
displaying reckless indifference.
Although extreme cases of omissions involving reckless indifference are quite
appropriately labelled murder, the concern expressed earlier about the scope
available to the jury to convict of murder on the basis of the perceived heinousness
of the defendants conduct would be accentuated in cases of omission. Many commentators believe, for example, that a manslaughter conviction was inappropriate
for the defendants in Stone and Dobinson,41 in which feeble-minded carers neglected their charge to such an extent that she died. It seems that the jury were
heavily influenced by the extreme conditions in which the victim was found, although
the underlying reason for the neglect appeared nothing more sinister than that the
carers could not face up to the reality of the situation. If such a case were to occur
again, would the trial judges supervisory role be proof against a murder conviction, I
wonder? A better solution, surely, would be to require the fault element in murder
by omission to have the elements of purpose described above, with serious cases,
40
R v Taber (2002) 56 NSWLR 443. The deceased died of dehydration, having been bound, gagged,
and abandoned by the defendants some eleven days earlier. There was evidence that the accused
desired the deceased to be rescued, after suffering no more harm than would ordinarily be consequent upon the binding and gagging. The most important evidence was a telephone call to the
emergency services, which the defendants confidently expected to result in a rescue.
41

[1977] QB 354.

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such as kidnapping committed in such a way as to create a risk of death,42 dealt with
by a limited return to constructive liability.43

Conclusion
The Law Commission has not been given an easy task. Indeed I have encountered
the odd grumble that it should have refused to accept its restrictive terms of reference; that it has become politicised. My view is that such purism is self-defeating.
Most sensible critics think that it is high time that the law of homicide was reformed.
Of course, it would be better if the mandatory sentence was consigned to history, but
this possibility is not on this, or any foreseeable, Government agenda. Pragmatism is
the only sensible way forward and the Law Commission was right to embrace it in
the proposals for a new grading structure for homicide. I think the overall thrust of
the consultation paper serves us very well. It is necessary for the core norms of
criminal law to make moral sense, and the overall grading structure, as represented
in contemporary doctrine, generally does so. What is needed is greater precision and
moral coherence than it presently displays. My major concern with the Consultation
Paper is that in the effort to rid the law and procedure of criminal homicide of the
malign influence of the mandatory sentence, much that was already rational and
coherent has been passed over. This is evident both in relation to the abandonment
of the attack based template for the fault element in murder, and also in the
unwillingness to view the partial defences as affecting the wrong in homicide as
opposed to the grade. Next time round I hope that these (significant) quibbles will be
addressed.

Post Scriptum
Since this article was written the Law Commission have completed their final report
Murder, Manslaughter and Infanticide (Law Com No 304, November 28 2006). A
number of significant changes have been made to the original proposals. The overall
coherence of the proposals is much improved. Murder now reflects the attack
rather the contempt for life theoretical structure almost in its entirety, as argued for
above. First degree murder encompasses (a) intentional killing; or (b) killing with an
intention to cause serious injury, in the awareness that there is a serious risk of
causing death.
An intentional killing requires that the defendant act in order to bring it about.
Where justice requires it the judge should direct the jury that they may find intention
to kill if D thought that his or her action would certainly (barring an unforeseen
intervention) kill, even if the death was undesired. This is an admirably lucid response to the difficulties posed by the present law, which should do much to simplify
the task of judges and juries.
I am intrigued by the addition of the second form of first-degree murder. This
article argues against a variation of (b) as a fault element in second-degree murder.
Although I am still largely unconvinced by the reasons given in support, it does carry
42

As in a variation of Taber, n. 59 above, in which no phone call was made.

43

See Canadian Criminal Code s. 230, quoted above, p. xx.

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a considerable practical punch as a form of first-degree murder since it makes the


package as a whole less likely to appear a simple ploy to outflank the mandatory
sentence. Many more murders which currently attract the mandatory sentence can
be charged as first degree murder. Whether they will be and to what degree is a
matter on which there is a deafening silence in the report.
The strength of the package as a whole is revealed when one turns to seconddegree murder, which includes simple killing with intent to do serious injury. This
fault element, as I argue above, is quite properly included within second-degree
murder and remains so, notwithstanding the surprising inclusion of the aggravated
form in murders first tier. A disappointing feature in the Law Commissions proposals is that serious injury is itself not defined, largely because of the supposed
difficulties in tying down a satisfactory definition. I think more effort should have
been made to resolve this problem rather than handing its resolution over to trial
juries.
The most significant change here is the very welcome adoption of the suggestion
made above that reckless indifference should be dropped in favour of the attackgrounded notion of killing by risk-taking. The Law Commission takes this suggestion
further, however, including within second-degree murder not only killing with intent
to cause fear or risk of injury some injury, but also with intent to cause some injury.
This latter would cover most obviously a killing in the course of torture where an
intention to cause serious injury could not be proven. In both cases, moreover, this
intention must be accompanied by the awareness that there is a serious risk of
causing death. I think that this proposal is tighter and also better realises the attackbased theoretical structure I have argued for.
The final element in second degree murder remains largely the same, namely
killing with the intent for first degree murder, but where a defence of provocation,
diminished responsibility, or suicide pact succeeds. My reasons for disagreeing with
this proposal are given above. The most significant change proposed is that it should
be possible for the jury to acquit of homicide if the defendant proves that he took
part in a killing only in response to an imminent threat of death of life-threatening
injury. The burden of proof lies with the defendant. While I agree that duress should
be a defence to murder I do not agree that the resulting verdict should be an outright
acquittal. A verdict of unlawful killing or killing under duress would better realize
the desire to immunize the coerced killer against the mandatory sentence and the
murder label while leaving it on record his/her responsibility for the death of an
innocent person.

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