Homicide and the Fair Labelling Principle - Essay Example

Homicide and the Fair Labelling Principle Introduction Unlawful homicide has been divided into twp primary offences under the criminal law of England and Wales since the seventeenth century.1 The two offences are murder and manslaughter.2 A third category, infanticide was added by the Infanticide Act 1938.3 Most of the law relative to murder and manslaughter have been developed by the judiciary with Parliament intervening and enacting the Homicide Act 1957.4 Together these efforts have only served to complicate rather than simplify the elements of both offences. To this end the Law Commission in its report published in 2006 made recommendations calculated to address the current complexities of the homicide laws which invariably involve a three tier division of the offences of unlawful homicide. 5 This paper critically evaluates the merits of the Law Commission’s recommendations in the context of the current laws governing unlawful homicide. It will be argued that the Law Commission’s recommendations with respect to dividing unlawful homicide into three distinct groups is fair. This is particularly so since fair labelling principles in criminal law are important for distinguishing between different levels of culpability.6 Current Homicide Laws in England and Wales Under the law of homicide in England and Wales, the killing of another human being can be either lawful or unlawful.7 Lawful homicide which may include killing during wartime, the accidental killing of another during a lawful sporting event or during a lawful death penalty execution are outside the ambit of this paper. Unlawful homicide is currently compartmentalized in England and Wales as either manslaughter, murder or infanticide.8 Unlawful homicide requires actus reus which refers to the guilty act. The difficulties and complexities of unlawful homicide arise however with the establishment of mens rea, the second element of each of the offences.9 The mens rea refers to the mental element and invariably involves issues of intent and causation.10 Fiona Brookeman describes how the essential element of mens rea creates difficulties with respect to unlawful homicide: “Whilst it is relatively straightforward to prescribe or define a particular act with particular consequences as a guilty act, it is far from straightforward to determine to what extent the act or its consequences were intended. In other words it has to be acknowledged that not all killings are intended and that there exists, therefore, different levels of culpability or guilt amongst perpetrators.”11 The manner in which unlawful homicide treats the offence of murder as a single crime, makes it difficult for distinctions to made between culpability and guilt among persons who by definition commit murder. In some cases jurors are left with little or no choice. They may acquit a defendant of murder and go on to convict him or her of the less serious offence of manslaughter. In such a case where an offender’s criminal act meets the criteria of the offence of murder but there are mitigating factors it might not be seem fair to excuse him altogether. The result is, he may be convicted of manslaughter, an offence which may not be appropriate, appearing to be far too lenient. The current state of the law of unlawful homicide therefore compromises the principles of fair labelling. Under the fair labelling doctrine a person who commits murder in circumstances where they may be mitigating circumstances can be unfairly labelled a murderer or he may be excused as having committed a lesser offence. Neither scenario is appropriate. In order to understand the implications and possible consequences for a murder accused it is best to examine the definition and development of the legal concept of murder. Sir Edward Coke provides the classic definition of murder as follows: “when a man of sound memory, and of the age of discretion, unlawfully killeth within any country of the realm any reasonable creature in rerum natura under the Kings peace, with malice aforethought, either expressed by the party or implied by law, so as the party wounded, or hurt, etc. die of the wound or hurt, etc. within a year and a day after the same.”12 It is from this classic definition that the law of murder and unlawful homicide has developed in England and Wales. The courts have set about developing what Coke referred to as malice aforethought in such a way as to set guidelines for the determination of the defendant’s intention. The issue is typically whether or not the defendant intended to cause serious harm to the victim who ultimately dies in the process. For instance the House of Lords in R v Moloney [1985] 1 All ER 1025 stated that intention involves a consideration of the following two questions: “…first, was death or really serious injury a natural consequence of the defendant’s act? Secondly, did the defendant foresee that consequence as being a natural consequence of his act?”13 With a single concept of murder however, it has become very difficult for the judiciary to adhere to a single test in attempting to discern the requisite intention for substantiating a charge of murder. For instance the judge at first instance used the Maloney ruling cited above in his summing up to the jury in Re v Hancock and Shankland. On appeal however, Lord Scarman, while maintaing that that foresight of consequences should not be confused with intention, added however, that intention can be supported by evidence of foresight of consequences.14 In R v Nedrick (1986) the question of whether or not intention and foresight of intentions could be equated appeared to be put to rest. In Nedrick’s case, the defendant tossed a petrol bomb into the letter box of a house resulting in the death of a child. The defendant argued at his trial that he had not intended to cause harm or death and that he had only intended to frighten the home’s owner.15 Lord Lane CJ emphasized that: “…where the charge is murder and the simple direction is not enough, the jury should be directed that they are not entitled to infer the necessary intention, unless they feel sure that death or serious bodily harm was a virtual certainty as a result of the defendants actions, and that the defendant appreciated that such was the case.”16 In R v Woollin [ 1999] Lord Steyn went so far as to say that: “…it may be appropriate to give a direction in accordance with Nedrick in any case in which the defendant may not have desired the result of his act”.17 It would appear that the courts have been determined to adapt and subscribe to the Nedrick ‘virtual certainty’ test over the equating of foresight of consequences test when determining the issue of the necessary intention on a murder charge. In fact Lord Lloyd said in R v Walker and Hayles (1990) that where foresight of consequences was an issue and an extended jury direction was necessary, the ‘virtual certainty’ test would be appropriate.18 In R v Scalley [1995] the Court of Appeal held that the judge at first instance is required to direct the jury that should the evidence satisy them that the defendant’s foresight was such that death or injury was a virtual certainly they could infer that he had the necessary intention.19 In R v Woollin [1998] however, the House of Lords was stricter in its approach to intention holding that jury must first be satisfied that the defendant foresaw that death or injury was a virtual certainty before they could move on to the question of intention.20 The result is that the courts, having been forced to consider a singly definition of murder have had to determine varying degrees of intention in order to determine whether or not the defendant’s conduct and state of mind can be properly and fairly labeled murder. As have been demonstrated by the cases cited above the approach has been to segregate foresight from intention. In a vast majority of cases where an unlawful homicide does not properly fall under the category of murder, the homicide is charged and/or tried as manslaughter.21 Manslaughter itself encompasses a variety of different circumstances of unlawful deaths and in its own rights creates several different complications.22 Voluntary manslaughter is provided for under Sections 2-4 of the Homicide Act 1957 and covers circumstances where there is provocation, diminished responsibility or killing as part of a suicide pact.23 Involuntary manslaughter covers homicide cases in which there is no intention to bring about the death of another or no intent to cause harm.24 In each case there is some element of blame since the defendant’s conduct is such that some element of labeling is required. A defendant can be convicted of involuntary manslaughter either by way of constructive manslaughter or by “reckless/gross negligence”. 25 Constructive manslaughter is substantiated when the defendant’s conduct is such that it is “unlawful” or “dangerous” and likely to bring about harm “such that death is the accidental result.”26 Manslaughter by gross negligence is self explanatory and is usually applied to cases where doctors fail to apply the standard professional standards required and death ensues.27 Infanicide is a special offence and applies to mothers said to suffering from post natal depression who kill their infants within one year from the birth of the child.28 It is obvious from the foregoing discussion that unlawful homicide is very broad and has the capacity to include within its ambit virtually all categories of deaths. Murder and manslaughter are unquestionably the most problematic areas of unlawful homicide. Murder, as a single offence compromises the principles of fair labelling. For instance a defendant who seeks only to scare another, but is reckless or negligent in his scare tactics is as guilty of murder as man who sets out to rob another with the full intention of seriously wounding or killing his victim. Manslaughter, at least distinguishes between the different levels of criminal responsibility by segregating voluntary manslaughter from involuntary manslaughter. In this way, the fair labelling principle is not compromised, at least not to the same extent of murder. Under manslaughter defendants are distinguished by their respective levels of criminal responsibility under the two distinct heads of manslaughter. The Law Commission’s Recommendantions The Law Commission’s Recommendantions with respect to revising the law on unlawful homicide seeks to some extent implement the fair labelling principle. This is manifested by the Law Commission’s recommendations that murder be divided into two distinct classes of offences. There are obvious distinctions between the different types of conduct that bring about the death of another. As professor Smith explains: “Recklessness whether murder be committed is different from, and more serious than, recklessness whether death be caused by an accident.”29 The law is stands however creates far too much confusion so that it is nearly impossible to distinguish between the different levels of complicity with the result that murder labels are denied where they should be applied and likewise applied where they should be denied. The Law commission’s recommendations attempts to balance these labels by recommending that unlawful homicide be divided into three categories.30 The Law Commission identified the current defects in the current law on unlawful homicide which are reflected in the arguments set fourth above. First and foremost a person may be found guilty of murder if he merely intended to cause serious injury to the victim.31 More troubling is the fact that all murder offences attract a mandatory life sentence. As the Law Commission explains: “We believe that the current law is unsatisfactory. It results in a conviction for murder, and the imposition of a mandatory sentence of life imprisonment, in cases where a person intended to cause serious harm but did not forsee and could not have forseen that his or her actions threatened the life of the victim.”32 Indirectly invoking the principles of fair labelling the Law Commission took issue with the distinctions between involuntary and voluntary manslaughter.33 Having both offences under one head that were vastly different from one another makes little or no practical sense. The Law Commission noted that: “It is inappropriate that the same offence and the same label should apply to death resulting from behaviour that is little short of murder on the one hand and little more than an accident on the other hand. It presents problems both for judges who have difficulty in determining the appropriate sentence for an offence that is so widely defined and for the public in understanding why, in any given case, the judge imposed the particular sentence.”34 The Law Commission went on to make recommendations in the reconstruction of unlawful homicide. Their recommendations rely on three factors which can be vitiating or mitigating. These factors are the “fault element”, “aggravating factors” and “mitigating factors.”35 To this end murder should be divided into two categories of offences. First degree murder which would be confined to those cases only where there was a specific intention to cause death.36 The term “first degree” would be used to: “...reflect the seriousness of the offence and the high level of criminality involved in its commission.”37 By distinguishing the intent of the offender and his or her high level of criminality in the commission of the offence the Law Commission is subscribing to the principle of fair labelling. Exemplifying the fair labelling principle the Law Commission goes on to explain that a person who intentionally kills another has a greater level of culpability than a person “who kills without intending to kill.”38 The current state of the law on homicide makes no such distinction and unfairly labels defendants who cause the death of another although their intentions may not be the same as those who intentionally bring about another’s death. Second degree murder provides the second category of homicide offences devised by the Law Commission and includes all deaths committed with the specific intent to cause serious harm.39 Second degree murder is distinguished from first degree murder in two significant respects. First it would not be applied to cases where the intent was to bring about the death of the victim. Secondly it would not attract a mandatory life sentence as does first degree murder. Instead it would have a maximum life sentence which could be lowered depending on the sentencing guidelines and mitigating factors.40 Distinguishing second degree murder from manslaughter, the Law Commission also suggests that provocation and diminished responsibility would not be defences to second degree murder.41 Under the Law Commission’s proposals for the reform of unlawful homicide manslaughter would apply to conduct which causes another’s death only in instances where: “...a risk that the conduct would cause death would have been obvious to a reasonable person in the defendant’s position, the defendant had the capacity to appreciate the risk and the defendant’s conduct fell far below what could reasonably be expected in the circumstances.”42 By virtue of this proposal, manslaughter fairly groups together criminals who intend to bring about physical harm that results in death with those who know or ought to know that their conduct will bring about physical injury. The common bond however, is that the conduct that brings about the death must be criminal in nature. By doing so, doctors who perform their jobs recklessly will not be labelled criminals. In order for such a person to be charged with manslaughter by gross negligence the Law Commission recommends that the risk of death must be obvious to the offender rather than the risk of serious harm.43 Conclusion The law of unlawful homicide is such that there is no real distinction between the degree of criminality in the commission of murder and manslaughter. Each offender, whose conduct and intentions are vastly different can be successfully prosecuted for the same offence of murder and/or manslaughter. The recommendations made by the Law Commission sets about distinguishing between the different levels of criminal fault by creating separate murder offences. It also serves to separate more effectively offences which can amount to manslaughter from murder. By making these recommendations the Law Commission provides a valid basis by which persons suspected of or prosecuted for unlawful homicide are more fairly labelled. Bibliography Attorney General’s Reference No. 3 of 1994. (HL) http://www.number7.demon.co.uk/hol/frames/01/44.htm Viewed August 17, 2008 Note that the one year and a day element has been removed by statute. Brookeman, Fiona. (2005) Understanding Homicide. Sage Publications D’Cruze, Shani; Walklate, Sandra; Pegg, Samantha and Croal, Hazel. (2006) Murder: Social and Historical Approaches to Understanding Murder and Murderers. Willan Publishing Great Britain, Law Commission. (2006) A New Homicide For England and Wales?: A Consultation Paper. The Stationery Office. Homicide Act 1957 Infanticide Act 1938 Leverick, Fiona and Chalmers, James. (2008) “Fair Labelling in Criminal Law.” Modern Law Review, Vol 71 (2), 217-246 R v Hancock and Shankland [1986] 2 WLR 257 R v Moloney [1985] 1 All ER 1025 R v Nedrick (1986) 83 Cr App 267 R v Scalley [1995] Crim LR 504 R v Walker and Hayles (1990) 90 Cr App R 226 R v Woollin [1999] AC 82 Smith, John. )1997) “Criminal Liability of Accessories: Law and Law Reform" 113 L.Q.R. 464 Read More