I beg to move,
That this House has considered the matter of reforming the law on homicide.
It is a great pleasure to serve under your chairmanship, Mr Evans, on this auspicious day. I wish to make crystal clear that the debate is about the law of homicide, not fratricide.
Putting that to one side, the real point is that the law of homicide is a mess. That was put more elegantly by the Law Commission in its 2006 report “Murder, Manslaughter and Infanticide”, in which it said that the law of homicide is
“a rickety structure set upon shaky foundations.”
In essence, the problem is that the law lacks a rational or defensible structure. It does not chime with common sense—and in this area of the law perhaps above all others, it should.
As long ago as 1874, a Select Committee stated:
“If there is any case in which the law should speak plainly, without sophism or evasion, it is where life is at stake; and it is on this very occasion that the law is most evasive and most sophistical.”
That remains the case more than 100 years later, and that will not do. In the words of the Law Commission, the time has come to
“promote certainty…in a way that non-lawyers can understand and accept.”
But the problem is far more serious than mere opaqueness. The problem is that the law of homicide creates injustice—injustice to defendants and injustice to society—and that is something that we in this House must always stand ready to confront and resolve.
What is the solution? It is very simple: to split the current offence of murder into two categories, one of first degree murder and another of second degree murder. Manslaughter should remain as before, albeit more tightly circumscribed.
What, as a matter of law, is murder? It is committed when someone unlawfully kills another person with an intention to kill that person or to do them serious harm. That second element is really important. It means that someone who reasonably believed that no one would be killed by their conduct is placed in the same offence category as the contract or serial killer. That, in a nutshell, is the problem.
Let me give an example. Imagine a retired colonel living in my constituency of Cheltenham. He is aged 65, has lived an utterly unblemished life and served his country with great distinction, and is known for his charitable work. He is upstanding in every way. He lives with his wife, who has Parkinson’s disease and for whom he is the sole carer. A neighbour moves in next door who has a string of convictions for antisocial behaviour. Every night, he holds noisy parties that go
on into the small hours. Endless polite requests from the colonel are ignored. Endless local authority noise abatement notices are ignored. So, after the umpteenth such party, with his and his wife’s already poor health suffering, the colonel goes round at 3 o’clock in the morning to remonstrate with his neighbour. He takes with him—this is important—a cricket bat in case there is a violent confrontation. The neighbour, who is very drunk, becomes abusive and the colonel, overcome with anger and frustration and at the end of his tether, says, “Right, that’s it. Let’s see how you party when your big toe is broken,” and strikes the neighbour’s foot with the cricket bat. The neighbour falls back, hits his head on a crate of beer standing in the hallway and is knocked unconscious. The colonel immediately calls 999 and tries to resuscitate him, the police and ambulance arrive and the colonel tells them exactly what happened, but the neighbour is rushed to the local hospital, diagnosed with a bleed on the brain and dies.
The post-mortem report reveals that the deceased’s toe was broken. When interviewed, the distraught colonel admits that he lost his temper. What happens in this case? The only charge that the law allows for is murder. That means that the only sentence that the judge can impose, despite the colonel pleading guilty at the first opportunity, is life imprisonment, because he intended to do grievous bodily harm by breaking the toe. It is because he took a weapon to the scene—the cricket bat—that the starting point for the minimum term that he must serve is 25 years imprisonment, and because the offence is murder, he must serve every last day of that term. In effect, the colonel goes to prison for the rest of his life—25 years. He has a mandatory life sentence.
That is unjust. Although it is clear that a person who kills in such circumstances should be guilty of a serious homicide offence, it is equally clear that because he did not intend to kill, the offence should not be in the top tier or highest category. The current law does not chime with common sense. Academic research into public opinion tells us that, but frankly, we do not need academic research; we need simply to consult our common sense. The particularly daft thing—I hope that that is parliamentary language—is that when Parliament passed the Homicide Act 1957, it never intended a killing to amount to murder, which at that time was a capital offence, unless the defendant realised that his or her conduct may cause death. The law of murder was widened because of an unexpected judicial development immediately following the enactment of the 1957 legislation—the case of Vickers, which is about interpretation of the expression “malice aforethought”. In my view, that colonel should be guilty of second degree murder.
The injustice is further underscored when we add the potential for what are known as secondary parties or accessories to be convicted of a murder. Imagine that before the colonel had set off, his frail wife had told him where the cricket bat was stored and in frustration said to him, “Now, go and use it. Teach him a lesson.” She, too, could find herself facing the punishment and disgrace of a murder conviction and the same 25-year minimum term. She should of course be guilty of an offence, but again, she should be guilty of second degree murder, with the judge having the discretion not to impose a mandatory life sentence.
This issue is particularly topical because the Supreme Court has looked at the case of Jogee and more tightly circumscribing accessory liability—the so-called prosecutor’s friend—but still we are left with a situation in which the unsatisfactory law of homicide leads to manifest injustice.