Whats Wrong With Murder

Abstract In a rational system defences should interlock with the elements ofthe offence to ensure that conviction labels are differentiated according to thedefendants degree of wrongdoing and culpability.The overall grading structure ofcriminal homicide, as represented in contemporary doctrine, goes some way to reflectthis ethic. But the substance lacks precision and, in some key details, moral coher-ence.The recent Law Commission Consultation Paper, in a pragmatic and sensibleattempt to rid the law and procedure of murder of the malign influence of themandatory sentence, has unnecessarily compromised such structural coherence as itcurrently enjoys and which could properly form a satisfactory basis for reform alreadyprecise and morally coherent.This is evident both in relation to the abandonment of theattack based template for the fault element in murder, and also in the unwillingness toview 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 tohave thought, having ignored any number of official reports recommending theoverhaul of the law of homicide. Nevertheless the Law Commission has been askedto undertake yet another review. The hope is that this time its recommendations maybe implemented, because the law of murder, and indeed of homicide generally, is indesperate need of reform. In the oft quoted words of Lord Mustill, it is permeatedby anomaly, fiction, misnomer and obsolete reasoning.1 This would be less of a

W. Wilson (&)School of Law, Queen Mary, University of London, Mile End Road, London, E1 4NS, UKe-mail: [email protected]

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

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Crim Law and Philos (2007) 1:157177DOI 10.1007/s11572-006-9017-7

ORI GI N A L P A PE R

Whats wrong with murder?

William Wilson

Published online: 3 January 2007 Springer Science+Business Media B.V. 2006

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 casesis 15 years, before which a person cannot be considered for release on licence. Thiscompares with manslaughter where, although the life sentence is available for themost serious cases, the judge is not bound even to impose a custodial sentence.

The sloppy and anachronistic thinking behind the mandatory sentence is that itdeclares and sustains murders symbolic moral uniqueness,2 a justification which harksback to biblical days when killing was understood to be an assault on the natural sacredorder, one which could only be expiated, in the manner of a sacrifice, by execution ofthe slayer himself (Fletcher, 1978). This obsolete mindset sustained the practice,relatively common until the 17th century, of prosecuting animals for homicide.3 In afamous case a pig was sentenced to death in full court for killing and devouring achild.4 The collision between the ancient and modern paradigms of responsibility isamusingly illustrated by the fact that her piglets, who were charged with her, wereacquitted on account of their immaturity and the bad example set them by theirmother. We no longer prosecute pigs, but we still have the mandatory sentence and theobsolete reasoning behind it which sustained the practice. The problems do not endthere. It has proved difficult to capture in coherent and consistent doctrine exactlywhat 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 be-tween murder and manslaughter should be clear enough to ensure that like cases aretreated 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 man-slaughter. Is it a conceptual differencethat murder is a different kind of wrongfrom manslaughter, as theft is different from fraud? Or is it a difference inseriousness, so that the basic offence is the same, but the murder label isreserved for the most heinous killings?

2. There needs to be closure on what it means to intend to kill someone. Beyondcases of acting in order to kill, is acting with knowledge of the moral certainty ofdeath 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 forwhat they have done. Defences should ideally, then, interlock with the elementsof the offence so as to ensure that nobody is convicted of murder who should beconvicted of a lesser offence or acquitted entirely. Should it not make a dif-ference 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 toterminate her life and suffering when she reached the final stages of motorneurone disease. Tony Martin shot an intruder in the back because he wanted toteach him a lesson. Private Clegg shot dead in the heat of the moment someonehe mistakenly thought was a dangerous terrorist. Mrs. Ahluwalia, at the end of

2 CLRC 14th Report on Offences Against the Person (1980) para. 15.3 An example forms the basis of chapter 3 of Barnes (1990).4 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. Lynchwas threatened with death if he refused to drive a ruthless gunman to theplace 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 partialdefence?

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 inten-tional killers, the killers contempt for the sanctity of life. When, if ever, shouldkilling by risk-taking amount to murder?

5. Is it right that a person can be guilty of murder upon proof of an intention tocause serious injury alone? How can serious injury be defined precisely enoughto satisfy the legality principle? Should serious injury be defined as life-threatening injury, so as to conform to the correspondence principle? Should itbe necessary for the defendant to appreciate that the injury intended carries thisrisk?

6. It is controversial, at best, that when D aids and abets P to commit crime X, heshould be guilty as an accessory to murder if P also kills in the course of com-mitting X, just so long as he contemplates that P might kill with the mens rea formurder.

I do not intend to explore all of these issues, many of which have sufferedextensive analysis in previous reports and academic commentaries. In this paper Iintend to concentrate on the Law Commissions proposals concerning murder andthe structure of homicide.5 I shall not, therefore, examine substantive proposalsconcerning 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 outsidethe Commissions terms of reference. The law of homicide protects people withoutthe slightest vestige of humanity, as when they lack a functioning brain or are in apermanent coma. It does not protect the great apes although we are geneticallyalmost indistinguishable and share almost all the core attributes of human-being-hoodintelligence, empathy, consciousness, enterprise, and sociability. How longmust it be before the very idea of what it is to be a human being suffers seriousanalysis?

What is murder?

The present elements of murder comprise a killing of a human being in pursuance ofan intention to kill or, alternatively, an intention to cause serious injury. Underlyingthis legal concept is, so we are led to believe, a moral concept. Certain killings have aunique quality about them which differentiates them from the pack of otherunlawful killings and which, as I have explained, sustains the fragile link betweenmurder and its unique sentence. The problem is that this quality is difficult to pindown. 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 consultationpaper.

Crim Law and Philos (2007) 1:157177 159

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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 commen-tators to insist that murder and manslaughter should not be differentiated at all atthe legal level, since they are not sufficiently differentiated at the moral level tojustify the attempt. Thus Blom-Cooper and Morris have argued for a unified law ofhomicide which makes questions of attitude, context, and blame relevant to sen-tencing but not to conviction.6 Are they right? Is there really no core moral conceptof murder that can be profitably translated into a distinct legal offence?

Empirical research into public perceptions of homicide provides support for theBlom-Cooper/Morris proposal. In Mitchells study, for example, it is apparent thatthe views of interviewees as to the gravity of different killings vary according to thecontext, the motivation of the killer, and the relationship of the partiesvariableswhich would seem to be too diffuse to convert into a coherent package.7 The his-torical record also supports the claim that there is no self-evident moral test gov-erning the distinction between murder and manslaughter.8 The notion of murder as aspecial 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 inwhich the emphasis, as enshrined in the term malice aforethought, is on culpabilityrather than on the mere fact of killing, but no fixed meaning can be identified in thevarious attempts to characterise this mental element.10 It is only in the modern erathat malice aforethought is translated into a technical descriptor, which supposedlyrequires no moral evaluation of the defendants conduct, but identifies specificindividual states of mind, namely intention and foresight, as characteristic ofmurderous 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 ofbeing rooted in the common law presupposes a degree of judicial creativity to keepthe nature of the criminal wrong largely congruent with the underlying social pro-hibition. Just as the ways of hurting people are not closed, so also crimes of violence,

6 Blom-Cooper and Morris, op. cit. n. 6 above. See also Lord Kilbrandon in Hyam V DPP (1975)AC 55, 96.7 Mitchell, op. cit. n. 6 above. Despite this observation, Mitchell does not subscribe to the Blom-Cooper and Morris school of throught.8 It also seems to suggest that some people may feel sufficiently strongly that their own judgment iscorrect as to be potentially resistant to a judicial direction on the matter.9 Victor Tunkel has pointed out to me that this position is not uncontested, and that biblical textsdistinguish, 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 ofgain, deliberately and in premeditated assault, has killed another wickedly and in breach of theKings peace. 2 On The Laws and Customs of England 341. Blackstone (4 Commentaries on the Lawof England, 201) understood it to mean simply that the defendant did not kill accidentally and had nojustification or excuse for the killing. Foster (1762) famously described it as indicating a heartregardless 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 tonew ways of hurting people.11 An examination of other jurisdictions, including non-common law jurisdictions, indicates that no clear consensus has been achieved as towhat murder comprises, let alone how it is to be articulated. One approach is to befound in the Canadian Criminal Code, where labelling precision takes priority overthe 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 causehim bodily harm that he knows is likely to cause his death, and being recklesswhether death ensues or not, by accident or mistake causes death to anotherhuman being, notwithstanding that he does not mean to cause death or bodilyharm to that human being; or

(c) where a person, for an unlawful object, does anything that he knows or ought toknow is likely to cause death, and thereby causes death to a human being,notwithstanding that he desires to effect his object without causing death orbodily harm to any human being.

230. Culpable homicide is murder where a person causes the death of a humanbeing while committing or attempting to commit high treason or treason or anoffence mentioned in section 52 (sabotage), 75 (piratical acts), 76 (hijacking anaircraft), 144 or subsection 145(1) or sections 146148 (escape or rescue from prisonor lawful custody), section 270 (assaulting a peace officer), section 271 (sexual as-sault), 272 (sexual assault with a weapon, threats to a third party or causing bodilyharm), 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 andwhether 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 of-

fence, and the death ensues from the bodily harm;

(b) he administers a stupefying or overpowering thing for a purpose mentioned inparagraph (a), and the death ensues therefrom; or

(c) he wilfully stops, by any means, the breath of a human being for a purposementioned in paragraph (a), and the death ensues therefrom.

A different kind of approach is taken by the Swedish Code, which is noteworthyin realising a differentiated criminal homicide, without presenting murder as con-ceptually 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 toimprisonment 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 most10 years.

It is for the court to decide, on consideration of all the evidence, whether therelevant 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 andMorris to advocate an undifferentiated homicide, specifically, the need for cogentand watertight boundaries between murder and manslaughter, and for a range ofdefences/offences capable of keeping the murder label apposite for the gravest cases.The indeterminacy of this provision is also its greatest weakness, however, as itrenders differentiation a matter of grading only. This is out of line with the commonlaw tradition which, reflecting the morality upon which it is based, treats murder andmanslaughter 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 inthe 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 theaccused, 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 tokill or inflict grievous bodily harm upon some person or done in an attempt tocommit, or during or immediately after the commission, by the accused, orsome accomplice with him or her, of a crime punishable by imprisonment forlife 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 ofpunishment. These labels help us to make moral sense of the social worlda matterof key concern, as society becomes increasingly heterogeneous. A criminal provisionis better able to communicate the boundaries of socially acceptable behaviour if itpackages crimes in morally significant ways, a point which comes across strongly inMitchells study of public attitudes to murder. This is why we have various specificcrimes of reckless endangerment such as causing death by dangerous driving ratherthan simply manslaughter (See Horder, 1994a, b). Part of the task of a reformed lawof homicide must, therefore, be to declare the scope of the wrong in murder, therebycommunicating societys core values. Doctors need to know, for example, when theycan legitimately perform surgery, or when it is lawful to administer drugs, which willaccelerate the death of a patient. Police officers need to know when they can shootto kill. All of us need to understand that it is a greater wrong to kill someone in angerthan to kill someone while driving recklessly; that wounded, individual, family, orreligious honour affords no licence to kill, and, generally, that however justified wemay think our killing, societys moral structure has it differently.

This is enough in my view to rebut the type of approach advocated by Blom-Cooper 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 ModelPenal Code.


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no point in advocating a reform unless it stands a chance of a hearing. As I shallexplain, the Law Commission embraces this pragmatic philosophy with a vengeance,and its proposals are all the better for it. Before I examine the Law CommissionConsultation Paper in detail I shall provide a focus for the analysis of the proposalsby indicating what we should be looking for in terms of the basic grammar ofreforming legislation.

Creating a rational structure for homicide

Core criminal norms embody obligations, which depend for their authority notsimply upon the existence of the rule, as is the case with regulatory offences, butupon a general acceptance of the standards concerned. Murder and other crimes ofviolence, theft and fraud, for example, embody social prohibitions that are easilyunderstood 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 criminallaw is that their presence serves both to declare and to differentiate societys corevalues. In a rational system these differentiated obligations will be replicated indifferentiated offence labels and in the punishment price tag attached. What con-stitutes these as offences is not simply the physical manifestation of the defendantsconduct (death, harm, loss of property) but also the mind that accompanies it. Themental element in murder is, then, a defining element in the prohibited conductrather than, as traditional criminal theory understands it, simply a filtering or gradingmechanism (See Robinson, 1990, 1993) It is the mental element which serves todeclare and sustain the important moral distinctions to be drawn between murderand 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 ancientdo not kill and the modern do not endanger others prohibitions. Domestic lawcurrently differentiates breaches of the two prohibitions by characterizing the wrongin murder as causing death by an attack, typically involving an act of seriousviolence,13 whereas, in (involuntary) manslaughter, it is causing death by actingdangerously.14 A person who is stabbed and killed by a vicious assailant is wrongedin a quite different way than someone who dies having received a non-deliberatewound in the course of an informal sword-fight. It is right to signal this by a separateoffence specification, which also, incidentally, grades the former offence as hierar-chically more serious than the latter (Horder, 1994a, b). The substantive standardsrequired to avoid responsibility for murder are thus articulated with maximum moralclarity: Do not intentionally inflict serious injury on another. If you do, and they dieas a result, you are guilty of murder (See Wilson, 2000: 2324). As I shall nowexplain, 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 ittakes 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 succeededin achieving, practical solutions to the problems of categorisation which so exercisedBlom-Cooper and Morris, and has thus also succeeded in organising the relativelydisparate moral responses to different types of killing that were evident in the in-terviewees responses in Mitchells empirical research. Weaknesses undoubtedlyremain, but these are weaknesses, which are best resolved by refining the existingconceptual vocabulary of the common law rather than by importing legal transplantsfrom 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) Killing where the offender did not intend to kill but did intend to do seriousharm.

(2) Recklessly indifferent killing, where the offender realised that his or her con-duct involved an unjustified risk of killing, but pressed on with that conductwithout caring whether or not death would result.

(3) Cases in which there is a partial defence to what would otherwise be firstdegree murder [this includes duress, provocation and diminished responsi-bility].

1.40 Manslaughter (fixed term of years maximum penalty):

(1) Killing through gross negligence;(2) Killing through an intentional act intended to cause injury or involving reck-

lessness as to causing injury.

The overall structure is in fact instantly recognizable. The cynic might indeedconclude that it is more designed to sidestep the problem of the mandatorysentence than to advance any substantive principle.15 Manslaughter is limited tocases of dangerous conduct, manifesting no direct challenge to the sanctity of life.Murder is constituted by conduct involving such a challenge, but is divided intotwo degrees of gravity. An intentional killing constitutes the highest degree, incommon with the position in many American jurisdictions.16 The Law Commis-sion rejects creating any further bases for differentiation such as those involvingextreme 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. Previ-ously characterised by an intentional attack, its new characterisation is conductdisplaying 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 re-flect this hierarchical configuration with the death penalty, typically, limited to first-degreemurder.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 inother common law jurisdictionsI think that this change is a mistake. At present,whatever its faults, domestic doctrines mechanism for separating the do not killand the do not act dangerously prohibitions is marked by a high degree ofconceptual precision. This precision is not replicated in the Law Commissionproposals, as will become apparent upon further examination of the proposedgrading structure.

First-degree murder

The Law Commission take the view that the moral basis of the crime of murderthesanctity of life idealrenders intentional killing especially heinous, worthy of beingaccorded a separate offence label and the symbolic mandatory sentence. This view, ifcommon, is not uncontroversial and, indeed, stands in uneasy opposition to theproposed fault element of reckless indifference, which implies the acceptance of somekind of evaluative basis for identifying the most heinous killings (Ashworth, 2006:259260). Indeed, even where defences are not involved, it is widely understood that areckless killing may be more heinous than an intentional killing. A person who shootsa gun into a moving vehicle or an occupied house for the fun of it attracts morerevulsion 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 moreopprobrium than one who, at her wits end, suffocates her screaming child. Myconcern here can be simply expressed. If contempt for the sanctity of life is the newmoral 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 Commissionsterms of reference, namely the matter of defences. In a fully rational system, offenceand defence elements will dovetail so as to ensure that no partly or fully justified orexcusable killings remain subject to (full) penalty. The criminal law is structured inthis way because, as Mitchells research shows, our everyday moral responses toinstances of intentional wrongdoing such as killing are sensitive both to the actorsmotive and to the context within which his intention was formed. But the Statecannot allow these popular ideas, which are more likely to have been formed insaloon bars than in the crucible of informed debate, to dictate the content of thecriminal law. Its job is to specify clearly the rules that govern cases in which thebalance of reasons for and against action may be misunderstood. Where, as inmurder, the conduct element embodies a moral proscription, lending an actorsreasons 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 iswrong and so should not be attempted (See Horder, 2000: 173) By compartmental-ising the fault element into definitional mental element and defences the criminallaw can present itself in a way which can best communicate the moral message whicha given offence definition embodiesin murder, do not killwhile at the same timeensuring that options remain for those whose reasons for killing are adjudgedsocially acceptable, and that censure and punishment is graded appropriately forthose 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 thelaw to be structured to communicate social values. The enduring controversies abouteuthanasia and abortion are prime examples. People who support the same politicalparty, follow the same religion and football team, enjoy the same books, drinktogether in the same pubs, and structure their lives around the same moral valuesmay nevertheless disagree fundamentally as to whether abortion, say, or euthanasiais a matter of personal choice, of the best interests of all concerned, or inviolablemoral obligation (See Dworkin, 1994) We need a steer on this. Ideally we need acriminal code, which exposes all. We will not get one of those in the foreseeablefuture. Well thought out reform is the next best thing. The Law Commission Con-sultation Paper, by largely excluding consideration of the role of general defences inthe overall framework of criminal homicide, leaves too much to chance.

An illustration may suffice. The Consultation Paper excludes consideration of thedefence of necessity. This renders the formulation of the fault element crucial,particularly in relation to first-degree murder, for obvious reasons. The two defini-tions of intention that the Commission considers (paras. 4.34.4) render knowledgeof 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 (presumablydirect) 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 uponthe degree of perceived justification.18 A topical problem will highlight the impor-tance of the correct formulation. We are led to understand that the armed servicesare under instructions to shoot down any plane, including passenger planes, whichthey have reason to believe has been hijacked to commit an act of terrorism. Sup-pose that a passenger plane is hijacked and is shot down by an RAF pilot, with theloss of 200 lives, within a mile of crashing into Canary Wharf. Suppose too, which isunlikely, that a prosecution for murder is brought against the pilot. If knowledge ofcertainty constitutes intention as a matter of law, the pilot has satisfied the elementsof the crime of murder. She has killed 200 people and she did so intentionally. Shemay 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 tothe question of whether she intended to kill the passengers, which is a simple yes/noquestion. Of course, it would be relevant for the purpose of deciding whether shedisplayed reckless indifference for the purpose of second degree murder, but, on thisreading 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 thewrongs involved in first and second-degree murder are properly ranked and char-acterised. But the legal position is not clear. The question would have to be decidedthere and then on the basis of the judges take on when and how far acting for thesocial good in circumstances of dire necessity may render lawful what wouldotherwise 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 (conjoinedtwins),19, a case whose ratio is widely considered to be specific to cases of medicalintervention. 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, DoctrinalRationality 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 doctrinalchallenges raised by such cases are considerable and certainly not exhausted by therange of considerations addressed in Re A.20

A more practical problem is the likely effect this new grading structure will haveon guilty pleas. There will now be a strong inducement on the part of defendants toplead not guilty to first-degree murder, and an equally strong inducement forprosecutors to accept a plea of guilty to second-degree murder.21 Whether this is agood thing or a bad thing is less significant than the fact that it might damage thecredibility of the package as a whole by threatening to neutralize the mandatorysentence.

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, itallows a murder conviction in cases where no realistic threat to life is posed and evenwhere, intending not to kill, the defendant takes pains to minimize the risk ofdeath.22 Mitchells study shows that the public does not think the intention to causeserious injury, without more, should sustain a conviction for murder. If this faultelement 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 ofmind than intending to cause them serious injury. Should it then be a requirementthat the injury intended be of a nature to put the victims life at risk and, if so, shouldthe 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 havealready (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. Solong as we are clear that what we are looking for is a distinct wrong rather than adistinctive 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 ofserious 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 affectsmedical interventions at pp. 112118.21 This was the strong view of the respondents in the questionnaire sent to Crown Prosecutors: seeConsultation Paper, Appendix B, 273.22 Commonly cited examples include practices such as the breaking of limbs or knee-cappingadopted 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 centredin conduct manifesting contempt for the sanctity of life. With such a focus, how canforesight of death not be central to the concept of serious injury? (Horder, 1997).24

The broader meaning attributed to serious injury compounds the problem. TheLaw Commissions provisional conclusion is that injury is not to be regarded asserious unless it is: of such a nature as to endanger life, or to cause, or to be likely tocause, permanent or long term damage to a significant aspect of physical integrity ormental functioning (para. 3.144). As the Commission admits, this definition is un-clear. I would go further: it is unclear and (unnecessarily) indeterminate. A jury isentitled, but not bound, to find an injury serious when it satisfies the definition. Thiswill enable it to eschew a guilty verdict in cases in which the injury intended, thoughserious, is thought insufficiently serious to justify a murder verdict. Given that theCommissions own definition of manslaughter includes a killing attributable to an actof violence falling short of mortal injury, this indeterminacy is unacceptable.25 It isclearly crucial, assuming that the murder/manslaughter distinction goes to wrongrather than grade, that the difference between serious and non-serious injury isarticulated with maximum precision. Even in its own terms the definition is not at allclear. How many fingers/toes need to be severed before permanent damage to asignificant aspect of physical integrity is caused? Does a single blow over the headwith a baseball bat risk the likelihood of permanent or long term damage to asignificant 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 senseof jury directions couched in such terms? A better starting point might be thefollowing modification of the Irish model, which the Commission also considered:

injury which creates a substantial risk of death or which causes or is likely tocause serious disfigurement, serious protracted impairment of mental function,or serious loss of, or impairment to, the mobility or function of the body as awhole.26

Such a definition seems to embrace, with reasonable determinacy, injuries of suffi-cient gravity to justify the actors characterisation as a murderer rather than, as inthe 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 secondcategory of second-degree murder, namely recklessly indifferent killing. Thisproposal 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 causalball rolling by means of an intentional attack on the victim actors lose the right to abjure fullresponsibility for the consequences, whether or not such consequences were foreseen, so long asthose consequences are not disproportionate to what was intended. We cannot rely on causaloutcomes always to match our expectations.25 It is manslaughter where a person by his or her conduct causes the death of another intending tocause injury or being reckless as to whether some injury was caused, where the conduct causing, orintended 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 animportant departure from tradition. Criminal doctrine currently boasts the ability tojudge whether a killer is guilty of murder or manslaughter without reference tomoral considerations such as context or motivation. The only question for the courtis a technical one. Did the defendant intend to kill or cause serious injury? Signifi-cantly, then, the Law Commission embraces, in the notion of reckless indifference,the opposing idea that the line between murderous and lesser killings requires anattitudinal evaluation rather than a technical analysis of the defendants conduct.28

The notion of reckless indifference is generally thought to capture an elusiveanalytical element implicit in the rather less analytical notion of wicked reckless-ness, or depraved heart in the American equivalent. A willingness to run risks isnot the same as being reconciled to their outcome. It is the latter attitude whichdisplays the moral hallmark of the murdererthe person who is happy to takewhatever consequence fate throws up and who, therefore, as good as intended tokill. What this idea unfortunately fails to do is to provide a secure moral and evi-dential basis for the differentiation between murder and manslaughter. Should itreally make a difference to Mrs. Hyams offence label that she hoped her victimswould escape serious injury, or would have desisted had she know the outcomewould be fatal, when the message she sought to deliver to Mrs. Booth, her rival inlove, required her to be in the house before it was set alight? Could the jury beexpected to make sense of the legal relevance of her caring attitude in such acontext, when the attack took place in the early hours of the morning when shewould assume Mrs. Booth and her children were asleep?

Reform bodies have repeatedly rejected such an approach in relation to attitu-dinal descriptors such as wicked recklessness, on the ground that it is too imprecisea concept to sustain a differentiated law of homicide. The concept of recklessindifference is no better placed. The judges and public prosecutors, whose opinionsappear in the appendices to the consultation paper, share this view. Matters are nothelped by the rather sloppy definition of reckless indifference proposed.

D is indifferent, manifesting a couldnt care less attitude to death, when he orshe realizes that there is an unjustified risk of death being caused by his or herconduct, but goes ahead with that conduct, causing the death. Ds ownassessment of the justifiability of taking the risk, in the circumstances, is to beconsidered, along with all the other evidence, in deciding whether D wasrecklessly indifferent and couldnt care less about causing death.29

As a definition of reckless indifference this is seriously wanting. A jury needs to beclear about the difference between simple recklessness and reckless indifference. Inthis definition we are offered both (conscious taking of an unjustified risk; couldntcare less attitude towards death), with a puzzlingly restricted coda relating to Dsown assessment of the justifiability of taking the risk. This final sentence does littleto clarify the jurys task. We are given opposition rather than simplicity, with twosentences, which point in quite different directions. Compare, for example, therather 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 circumstancesmanifesting extreme indifference to the value of human life.30

Even so, the problem remains that the very concept of reckless indifference issimply too indeterminate to sustain a differentiated criminal homicide. In the ab-sence of explicit evidence that the defendant did care, jurors will presumably remainfree, as is their wont, to characterize the defendants recklessness as either mur-derous or not, according to the perceived degree of heinousness. Now, some mayargue 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 mustreflect that morality. Who better than the jury to execute this? But, as explainedabove in relation to GBH murder, whether someone has committed murder is not amatter of simple moral judgment. It is a matter of satisfying an offence definitionwith a sufficiently high degree of specificity to justify the hugely symbolic label andthe penalty range attached to it.

I have argued elsewhere that there is only one secure way of marrying grade andwrongdoing in cases of killing by risk taking (Wilson, 2006). This is to return to thecurrent conceptual underpinning of the do not kill prohibition, which is centred, asexplained earlier, in the notion of attack. At present, to be murder this attack mustbe actuated by, and manifest in, one or other of two intentions, namely, to kill or tocause serious injury to the victim. But a third variety of intention also embraces thisnotion of attack so central to the domestic approach to murder, namely the intentionto expose the victim to the serious risk of death.31 Like the intention to cause seriousinjury, and unlike most cases of reckless killing, intending to expose someone to theserious risk of death necessarily involves the victimization of the object of thatintention. It is this necessity, which constitutes the defendants conduct as an attackon the victims life. This formulation of the fault element is a much more precise andrelevant basis for murder than the contempt for life approach, or its recklessindifference (or wicked recklessness) attitudinal proxy. The Irish Law Commissionconsidered two types of case to illustrate this approach: the terrorist who plants abomb in a city street, intending to damage property in the area and the person whowantonly shoots into a moving train carriage or busy shop.32 Mrs. Hyam would beanother.

The Law Commission objects to this approach on the grounds that there is nomoral, even if there is an analytical, distinction between intending to create a risk ofdeath and foreseeing the risk of death, and, in any event, all cases of acting withforesight of the inevitable risk of death would show reckless indifference. This is nottrue, however, if intention is understood in its everyday non-technical sense of actingin order to bring about a consequence. With this focus, a clear analytical and moraldistinction 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 ofmind of someone who disregards an unjustified risk of death, in circumstances, which manifest acouldnt 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 theoutcome 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 advantagesover reckless indifference, where the jury will usually have little more than gutfeeling to go on in deciding whether D might (showing he cared) have acteddifferently had he known that the outcome would be fatal. This test, rather, requiresthe jury to consider whether the defendant would have acted differently if he hadknown that there was no risk of death, for which the circumstantial evidenceavailable, for or against, is likely to be correspondingly stronger. So the shooterwould presumably not fire into a carriage or room he knew to be empty; for whatwould be the point of it? Mrs. Hyam would presumably not/did not set fire to thehouse 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 willbe 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 andduress), instead of reducing what would otherwise be a murder conviction to man-slaughter, as at present, will reduce first-degree murder only to second degree murder,thus avoiding the mandatory sentence. Provocation and diminished responsibility arenot to be defences to second-degree murder, but the Commission leaves open thequestion of whether duress should be (paras. 5.775.78, 5.845.86). This package ofproposals needs careful analysis. The Commission concludes that where an intention tokill was formed under appropriate conditions of provocation, duress or an abnormalityof mental functioning, it renders acting upon that intention partially excusable but notso excusable as to justify an offence label other than murder. The basis for this proposalis to ensure that the gravity of the defendants wrong is properly labelled which, giventhe 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 LawCommissions own rationale for these excuses. For example, the reformulateddefence of provocation, which now includes overreaction in self-defence, emphasizesthe defences quasi-justificatory character, rooted in the justified anger or outragereasonable people experience upon being seriously wronged, or in the justified desireto allay at all costs the unjust threat of death.35 I happen to disagree with thisrationale (Wilson, 2005). Killing in response to gross provocation is never a normal,or even partially normal, response. The excuse is, rather, that we cannot expectactors 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 theCommissions report on partial defences (No. 290, Partial Defences to Murder; London, TheStationery Office, 2004).35 Law Commission No. 290 (n. 49 above), 3.693.70: We favour as the moral basis for retaining adefence of provocation that the defendant had legitimate ground to feel seriously wronged by theperson at whom his or her conduct was aimed, and that this lessened the moral culpability of thedefendant reacting to that outrage in the way that he or she did. It is the justification of the sense ofoutrage 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 notto recognize this fact.36 Be that as it may, as the Law Commission understands therationale, a reduction to manslaughter is surely more apt than murder, albeit seconddegree murder. Such an offence label is surely too strong a designation for thosereacting, as an ordinary person might be expected to react, to gross provocation oroverreacting under fear of serious violence.

If this is true of provocation it is even more so with duress, which also operates toreduce first to second degree murder. Intentional killing is wrong, even to allay thethreat of immediate death, but the wrong, possibly to a greater extent than provo-cation, is not comparable to the wrong in murder. Voluntary manslaughter, or amore focused offence label, such as killing under provocation or duress, moreaccurately reflects the wrong involved in killings as understandable as the LawCommission defines them to be. No such strictures operate in connection with therole of duress as a potential defence to second-degree murder where, unlike prov-ocation, and for obvious reasons of consistency and coherence with the position inrespect of other offences, the Commission suggests that it might operate as completedefence. Once again, at least for crimes of violence, one wonders whether a specialoffence label would be more appropriate for offences committed under duress (Seegenerally Robinson, 1982).

With respect to diminished responsibility, the Law Commission concedes that itmight 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 isdismissed as fastidious, and the logic as over refined. Sentencing guidelines willensure that no undue injustice is done, and a conviction for second-degree murderwill adequately differentiate the ordinary murderer from those with the defence(paras. 6.2833). I am not sure that the argument is overly fastidious. The proposeddefinition of diminished responsibility (para. 6.2(2)) is notably more rigorous andprecise than that which it would replace, not least in the requirement of a causal linkbetween the abnormality of mental functioning and the killing. Once this causal linkis insisted upon it must surely follow that the wrong for which the defendant is heldto account is something other than murder. It is a strange conclusion to draw that theperson concerned may be responsible for the killing in any sense comparable to thatof a person with normal mental functioning who kills in furtherance of intention todo serious injury or disclosing reckless indifference.

Killing by omission

The Law Commission makes no separate recommendation regarding murder byomission. Presumably the Commission shares the traditional view that, once a dutyof intervention is established, no meaningful distinction is to be drawn between thedefinitional elements of murder by commission and those of murder by omission.Ashworth, for example, states that an omission to perform a duty to safeguard thewelfare of another should be murder if combined with an intention to cause deathor serious injury. Intention in this context includes full knowledge of the certaintyof 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 theworld.38 In core cases of murder by omissiona parent who deliberately starves hernewly born infant to deaththere is no undue conceptual impediment to describingthe death as having been intended or even in describing the parent as having in-tended to kill the infant. We do kill infants by starving them. Starving is a form (end-directed) that wrongdoing can take, albeit it necessitates no bodily movement toachieve it. The difficulty arises in cases where the omission cannot be described asnegative action but is simply a case of permitting the death to occur. As Fletcherremarks, 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 killher 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, operativealso in murder by commission, which holds there to be intention wherever conductwas designed to bring about death or, if not so designed, was known to involve thatconsequence as a practical or moral certainty.

The problem with this analysis is that in cases of killing by commission there istypically a moral congruence between what one knows will happen and what oneaims to achieve. Such a congruence will often be absent in cases of omission. If A, ina rage, hurls his baby son against a brick wall without any purpose other than toexpress his anger it makes every moral sense to dismiss the denial of an intention tokill the child if he knows that this consequence is a practical certainty. Again, ifAdam locks the door of a burning room occupied by V, in order to prevent the fireengulfing another room where he has precious documents, a denial of the intentionto kill can also be ignored. This time he intends to kill V not because he believes thatdeath is a practical certainty, although he may do. The intention is present althoughhe appreciates, just as he might in cases of direct intention, that there is a goodchance that V might escape because, for example, someone else present in thebuilding might open the door. However, if things go according to plan nobody willopen 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 samedoor for the self-same reason as Adam. Those who conduct themselves in the certainknowledge that the victims death will occur if things go according to plan act for apurpose, 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 thatshe has an urgent appointment to keep. Here there is no plan whose success ispredicated upon the death of V. She is simply indifferent, preferring to prosecute herown interest at the expense of Vs. Her intention to kill, if she has one, derives fromthe 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 forcertain 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 specifiedresult 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 tointend to kill.


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a possibility, not least because duties of intervention tend to configure around similartargets. A lifeguard at a swimming bath may know that a toddler will drown unless aquick rescue is mounted but he will also know that the toddler is accompanied byanother duty-bearer who can typically be expected to intervene. Even where there isno such probability, as in the case of adult swimmers, he can usually expect thatsomebody will effect a rescue (cf. Alexander, 2002). The commitment (and attack)presupposed by knowledge of practical certainty in cases of murder by commissionwill usually, in cases of omission, only be manifest where, as in the case of Eve thedocument protector, the omission is for a purpose whose fulfilment necessarilyinvolves the death of the other in the ordinary course of events.

It is probable, therefore, that the dearth of cases of killing by omission success-fully prosecuted as murder in domestic law reflects the absence of evidence of amental attitude comparable to that displayed by ordinary killers. Only where thereis evidence of some fatal purpose to the omission will a conviction hold true to theparadigm case of murder.

The Law Commissions new proposals partly accommodate the doctrinal problemposed by Eve the timekeeper. By linking liability, as in cases of commission, to theomitters attitude it renders a conviction for murder by omission a realistic possi-bility. If, but only if, she displayed reckless indifference to the prospect of death shewould be guilty of murder. Conviction would depend upon the jurys assessment ofthe evidence as regards her attitude. Was the reason for her non-intervention thatshe did not care; or that, as in the New South Wales case of Taber, she thought thatsomeone else would effect the rescue;40 or some other good (enough) reason todeflect the charge of indifference? So, on the facts of Smith (1979) in which ahusband failed, out of respect for his wifes wishes, to call a doctor when it was clearto him that she would die without medical attention, he would be guilty, at most, ofmanslaughter. Acting out of respect for his wifes autonomy is not the same asdisplaying reckless indifference.

Although extreme cases of omissions involving reckless indifference are quiteappropriately labelled murder, the concern expressed earlier about the scopeavailable to the jury to convict of murder on the basis of the perceived heinousnessof the defendants conduct would be accentuated in cases of omission. Many com-mentators believe, for example, that a manslaughter conviction was inappropriatefor the defendants in Stone and Dobinson,41 in which feeble-minded carers ne-glected their charge to such an extent that she died. It seems that the jury wereheavily influenced by the extreme conditions in which the victim was found, althoughthe underlying reason for the neglect appeared nothing more sinister than that thecarers could not face up to the reality of the situation. If such a case were to occuragain, would the trial judges supervisory role be proof against a murder conviction, Iwonder? A better solution, surely, would be to require the fault element in murderby 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 accuseddesired the deceased to be rescued, after suffering no more harm than would ordinarily be conse-quent upon the binding and gagging. The most important evidence was a telephone call to theemergency 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 withby a limited return to constructive liability.43

Conclusion

The Law Commission has not been given an easy task. Indeed I have encounteredthe odd grumble that it should have refused to accept its restrictive terms of refer-ence; 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, butthis possibility is not on this, or any foreseeable, Government agenda. Pragmatism isthe only sensible way forward and the Law Commission was right to embrace it inthe proposals for a new grading structure for homicide. I think the overall thrust ofthe consultation paper serves us very well. It is necessary for the core norms ofcriminal law to make moral sense, and the overall grading structure, as representedin contemporary doctrine, generally does so. What is needed is greater precision andmoral coherence than it presently displays. My major concern with the ConsultationPaper is that in the effort to rid the law and procedure of criminal homicide of themalign influence of the mandatory sentence, much that was already rational andcoherent has been passed over. This is evident both in relation to the abandonmentof the attack based template for the fault element in murder, and also in theunwillingness to view the partial defences as affecting the wrong in homicide asopposed to the grade. Next time round I hope that these (significant) quibbles will beaddressed.

Post Scriptum

Since this article was written the Law Commission have completed their final reportMurder, Manslaughter and Infanticide (Law Com No 304, November 28 2006). Anumber of significant changes have been made to the original proposals. The overallcoherence of the proposals is much improved. Murder now reflects the attackrather the contempt for life theoretical structure almost in its entirety, as argued forabove. First degree murder encompasses (a) intentional killing; or (b) killing with anintention to cause serious injury, in the awareness that there is a serious risk ofcausing 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 intentionto kill if D thought that his or her action would certainly (barring an unforeseenintervention) kill, even if the death was undesired. This is an admirably lucid re-sponse to the difficulties posed by the present law, which should do much to simplifythe task of judges and juries.

I am intrigued by the addition of the second form of first-degree murder. Thisarticle 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 thepackage as a whole less likely to appear a simple ploy to outflank the mandatorysentence. Many more murders which currently attract the mandatory sentence canbe charged as first degree murder. Whether they will be and to what degree is amatter on which there is a deafening silence in the report.

The strength of the package as a whole is revealed when one turns to second-degree murder, which includes simple killing with intent to do serious injury. Thisfault element, as I argue above, is quite properly included within second-degreemurder and remains so, notwithstanding the surprising inclusion of the aggravatedform in murders first tier. A disappointing feature in the Law Commissions pro-posals is that serious injury is itself not defined, largely because of the supposeddifficulties in tying down a satisfactory definition. I think more effort should havebeen made to resolve this problem rather than handing its resolution over to trialjuries.

The most significant change here is the very welcome adoption of the suggestionmade above that reckless indifference should be dropped in favour of the attack-grounded notion of killing by risk-taking. The Law Commission takes this suggestionfurther, however, including within second-degree murder not only killing with intentto 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 anintention to cause serious injury could not be proven. In both cases, moreover, thisintention must be accompanied by the awareness that there is a serious risk ofcausing death. I think that this proposal is tighter and also better realises the attack-based theoretical structure I have argued for.

The final element in second degree murder remains largely the same, namelykilling with the intent for first degree murder, but where a defence of provocation,diminished responsibility, or suicide pact succeeds. My reasons for disagreeing withthis proposal are given above. The most significant change proposed is that it shouldbe possible for the jury to acquit of homicide if the defendant proves that he tookpart in a killing only in response to an imminent threat of death of life-threateninginjury. The burden of proof lies with the defendant. While I agree that duress shouldbe a defence to murder I do not agree that the resulting verdict should be an outrightacquittal. A verdict of unlawful killing or killing under duress would better realizethe desire to immunize the coerced killer against the mandatory sentence and themurder label while leaving it on record his/her responsibility for the death of aninnocent person.

References

Alexander, L. (2002). Criminal liability for omissions. In: S. Shute, & A. P. Simester (Eds.), CriminalLaw Theory: Doctrines of the General Part (p. 127). Oxford: Oxford University Press.

Ashworth, A. J. (2006). Principles of criminal law (5th ed., pp. 259260). Oxford: Oxford UniversityPress.

Barnes, J. (1990). A history of the world in 10 and a half chapter. London: Picador.Blom-Cooper, L., & Morris, T. (2004). With malice aforethought: A study of the crime and punish-

ment for homicide (pp. 174175). Oxford: Hart.Criminal Law Revision Committee (1976). Working paper on offences against the person. London:

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Duff, R. A. (1990). Intention, agency and criminal liability. Oxford: Blackwell, p. 24.Dworkin, R. (1994). Lifes dominion. New York: Vintage Books.Evans, E. P. (1987). The criminal prosecution and capital punishment of animals. London: Faber, pp.

153154.Fletcher, G. (1978). Rethinking criminal law. Boston: Little, Brown, pp. 345346.Foster (1762). Crown Law, 257.Horder, J. (1994a). Rethinking non-fatal offences against the person. Oxford Journal of Legal

Studies, 14, 335351.Horder, J. (1994b). Varieties of intention, criminal attempts and endangerment. Legal Studies, 14(3),

335344.Horder, J. (1995). Intention in the criminal law: A rejoinder. Mordern Law Review, 58, 678691.Horder, J. (1997). Two histories and four hidden principles of mens rea. Law Quarterly Review, 113,

95.Horder, J. (2000). On the irrelevance of motive in criminal law. In: J. Horder (Ed.), Oxford essays in

jurisprudence, 4th Series (p. 173). Oxford: Oxford University Press.Law Commission (2005). Consultation Paper 177, A New Homicide Act for England and Wales?

London: The Stationery Office.Mitchell, B. (1995). Defence of a principle of correspondence. Criminal Law Review, 38, 195205.Mitchell, B. (1998). Public perceptions of homicide and criminal justice. British Journal of Crimi-

nology, 38, 453472.Raz, J. (1979). The authority of law. Oxford: Oxford University Press, p. 1.Robinson, P. H. (1982). Criminal law defences: a systematic analysis. Columbia Law Review, 82, 199

209.Robinson, P. H. (1990) Rules of conduct and principles of adjudication. University of Chicago Law

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Smith (1979). Criminal Law Review, 251.Smith (1990). A note on intention. Criminal Law Review, 8591.Stephens Digest. London: Macmillan, Art. 244, (1894).Wilson, W. (2000). Murder and the structure of homicide. In A. J. Ashworth, & B. Mitchell (eds.),

Rethinking english homicide law (pp. 2324). Vol. 21, Oxford: Oxford University Press.Wilson, W. (2005). The structure of criminal defences. Criminal Law Review, 108.Wilson, W. (2006). op. cit. n. 21 above; The structure of criminal homicide. Criminal Law Review,

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What rsquor s wrong with murder?AbstractIntroductionWhat is murder?Jurisdictional comparisonsCreating a rational structure for homicideThe law commission consultation paperFirst-degree murderIntentional killings and the role of defencesSecond-degree murderKilling with the intention to do serious injuryRecklessly indifferent killingKilling mitigated by partial defenceKilling by omissionConclusionPost ScriptumReferences

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