Provocation is defined as existing where the person is provoked to lose his self-control 14. This, once again, is supplemented by case law, in particular the case of Duffy 15 where it was said that the defendant must suffer a ‘sudden and temporary’ loss of self-control. This requirement is criticized in the Commission’s report as being bias towards persons of quick temper 16 and proved problematic for women who suffered a ‘slow burn’. This culminated in historic cases like Ahluwalia 17 where the requirement in Duffy was relaxed to include women who suffer from a ‘slow burn’. However, the (partial) defence of provocation was somewhat blurred with diminished responsibility in the case of Morgan Smith18 where the offender’s depressive illness (suggestive of diminished responsibility) was considered relevant in a plea for provocation.

A suicide pact, the more ancillary of the partial defences, exists where there is a common agreement between two or persons, having for its object the death of all of them, whether or not each is each is to take his own life, but nothing done by a person who enters into a suicide pact shall be treated as done by him in pursuance of the pact unless it is done while he has the settled intention of dying in pursuance of the pact 19.

Constructive manslaughter requires an unlawful act 20 which is also dangerous 21 and caused the death of the victim. Gross negligence on the other hand, requires that the defendant owe a duty of care, which he breaches. The breach of the duty of care must be operative, causing the death of the victim. The breach must also be so gross that it justifies criminal conviction 22.

Reckless manslaughter on the other hand, arises where the defendant kills the victim, foreseeing a risk of death or serious injury. This, like the defence of suicide pact, is an ancillary category that rarely appears before the courts.

The Proposals – A new framework for the law of homicide

The Law Commission make considerable criticisms of the current law on homicide. In particular they feel that the current law does not ensure that different levels of criminality are ‘accurately graded and labelled’ 23. As a solution, they propose a new framework consisting of three general homicide offence; namely first degree murder, second degree murder and manslaughter 24. They also propose a subsidiary category for other ‘specific homicide offences’, which is to include offences such as ‘assisting suicide’. The reforms, from an abstract point of view, will be music to the ears of constitutional thinkers, since it involves the amalgamation of case law and statute law 25. From an abstract point of view, such codification should make the law clearer and more coherent. However, I feel that we need to consider the provisions in its substance before we hail this a great constitutional revolution. In particular, I will consider its proposals for first and second degree murder and manslaughter.

First degree murder is to be the classification for the most serious offences, and would be the only category that would attract a mandatory life sentence. This would be confined to cases where the offender intended to kill. This suggested reform would certainly score points on the ‘fair labelling’ charter, as it ensures that those who commit the most serious crimes are given a label that reflects this. Such reforms are also likely to appeal to advocates of the ‘just deserts’ 26 doctrine, as it would mean that only those who committed the most serious of offences would be subject to a mandatory life sentence. This contrasts with the current law, where those who intended only to cause grievous bodily harm can be found guilty of murder, and issued with an automatic life sentence.

Second degree murder is to encompass the most serious offences after ‘first degree’ murder, which includes killing where the intention was to cause grievous bodily harm27.

This is a downgrading of what was previously classified as murder, with the advantage being that it would not attract an automatic life sentence. The second degree murder classification would also encompass the current partial defences of diminished responsibility and provocation. This would resolve the current anomaly in the law which sets an intention to cause grievous bodily harm (murder) at a higher level of liability that an intention to kill (manslaughter where offender provoked or suffering from diminished responsibility) 28.
The Commission also proposes incorporating duress as a partial defence to murder (to be classified as ‘second degree’ murder). Under the current law, duress is no defence to murder 29. The Commission’s justification for this is that it feels that the current law places duties of heroism on those subject to duress. It argues that although heroism is a quality to be praised, its absence should not be deemed inexcusable30.

Second degree murder is also to include killing through reckless indifference to causing death. This is currently classified as manslaughter (involuntary). The Commission justify this ‘upgrading’ as it argues the offender is indifferent to whether death results from his unjustified risk 31. It is the fact that the offender is willing to tolerate the unjustified death of another which it feels merits grading it higher than the current ‘manslaughter’ label that it attracts.

Since voluntary manslaughter (partial defences) and reckless manslaughter would be re-branded as second degree murder, the offence of manslaughter would become a much narrower offence. The offence would therefore only encompass causing death by (1) gross negligence, (2) an act intended to cause some, but not serious, physical harm and (3) an act foreseen as involving a risk of causing physical harm 32.

What this means in effect is that the law concerning gross negligence will remain unchanged, and will therefore still be classified as manslaughter.  However, what it does mean is that the law concerning constructive manslaughter (unlawful act) will be changed and made narrower in its scope. Under the current law, there is an element of strict liability for constructive manslaughter, as it can be established without reference to the offender’s state of mind (mens rea). What the reforms purport to do is to introduce a fault requirement, in the form of an intention or recklessness for the constructive manslaughter offence 33.This re-balances the scales in favour of the accused, since a fault element would be required.

Reflections – A ‘mess’ unresolved?

The Law Commissions reforms, on a superficial level seem like a great constitutional change for the twenty-first century.  It’s been almost 50 years since Parliament last passed legislation on homicide, and an overhaul is certainly welcomed. However, question marks can certainly be raised over certain aspects to the suggested reform.

With respect to murder, whilst the narrowing of its scope solely to situations where intention is clearly present is helpful in ‘keeping the options simple to the jury’ 34, it does have the disadvantage of potentially reducing the scope of those found guilty of murder, since an ‘intention to kill’ places the burden of proof very high for the prosecution.

With regards to second degree murder, this has been drafted include the partial defences of provocation and diminished responsibility. This is an upgrading to what is currently manslaughter. What this will mean is that cases like Ahluwalia 35 will be treated as second degree murder rather than manslaughter. What this will mean is that battered women will be labeled as murderers by a lay person (the ‘second degree’ prefix having little material impact on a lay person’s understanding). This clearly goes against the grain of the ‘fair labelling’ argument and yields results which is manifestly unjust for the offender. There is in my mind no justification for upgrading cases like Ahluwalia from manslaughter to (second degree) murder.

With respect to manslaughter, the suggested reforms are by no means in a state which can be described as ideal. Whilst the requirement for unlawful act manslaughter is modified to include a fault element (intention or recklessness), the wording is by no means straightforward. The proposed wording is to be ‘act act intended to cause some but not serious harm’ and ‘act act foreseen an involving a risk of causing physical harm, whether or not serious harm’ 36. Such a definition can be more problematic than helpful and begs the question, when is harm ‘serious harm’?

In conclusion, I feel that the Law Commission has made some very valid criticisms of the current law and suggested some very intelligent methods of modernising the law, seen, for example, in the incorporation of duress as a partial defence to murder. However, I feel that some of its classifications (provocation as second degree murder) need to be reviewed if it wants to yield results that reflect a ‘fair labelling’ system. In addition, I also feel that its wording on manslaughter needs clarifying, so that there can be certainty over the meaning of harm and ‘serious harm’.

Pedro Da Cruz
2nd Year Law Student
Southampton University

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