Murder could be graded from most foul to mercy killing

By Richard Ford

Timesonline.co.uk - 6th August 2004

The law on deliberate killing is a mess say reformers who are calling for an end to the mandatory life tariff

MURDER could be graded into categories ranging from the most depraved to mercy killings as part of a full review of the law demanded today by government advisers.

The mandatory life sentence imposed for murder could also be replaced by shorter jail terms linked to the seriousness of the murder.

The call for the first review of murder and the mandatory life sentence for more than half a century is made in a report that describes the present position as a mess.

The Law Commission, the Governmentπs law reform adviser, says that a review is necessary because of the "breadth and depth of discontent" with the present law. It said that many people believed that the mandatory life sentence for murder was indefensible and should cease.

A Law Commission spokesman said: "A logical system would identify the most serious forms of killing and call them murder, but it might also attempt to identify other forms and grade them for sentencing. The information we have had from consultees indicates widespread dissatisfaction with the law from judges downwards, who feel their work is being made difficult by the current law."

The report points out that a mandatory life sentence in a mercy killing case can be avoided only by a "benign conspiracy" between psychiatrist, defence, prosecution and the court to say that the accused was suffering from diminished responsibility.

The call to the Government to instigate a review of murder was made in a report outlining proposed reforms to the defence of "provocation" in murder cases. The recommendations would make it more available to victims of domestic violence who kill their partner in self-defence.

The report also proposes tightening the law so that the provocation defence could not be used where someone has killed for revenge: for example, a jealous husband who murders an unfaithful wife.

Judge Alan Wilkie, a law commissioner, said that he would be asking David Blunkett, the Home Secretary, to allow the commission to review the murder laws. It would be the first wholesale re-examination of the subject since the Royal Commission on Capital Punishment from 1949 to 1953, which led to the Homicide Act in 1957.

The report said that it was incorrect to put all types of murder into a single category.

A serial killer such as Rose West or the Yorkshire Ripper is treated the same as a mercy killer or a person who stabs someone in a fight.

In particular, the law dealing with provocation was now "effectively ignored and scarcely anyone has a good word for it", the report added.

Many people who were asked to comment on the Law Commissionπs inquiry into provocation responded that there was a need to review the murder laws as a whole.

"A small number of eminent consultees (believed to be senior judges) criticised us for having accepted limited terms of reference which they feared would result in an inadequate 'patching' exercise," the report said.

It adds: "The notion that all murders . . . represent instances of a uniquely heinous offence for which a single uniquely severe penalty is justified does not reflect the views of a cross-section of the public when asked to reflect on particular cases."

The commission rejected the idea of scrapping the provocation defence, as suggested by Harriet Harman, the Solicitor-General. At present, if the provocation defence is successfully put forward the accused will be convicted of manslaughter rather than murder and the judge will not have to pass a life sentence.

The Law Commission said that the new defence should apply if the accused "acted in response to gross provocation" which caused them to have a "justifiable sense of being seriously wronged", or in response to a "fear of serious violence towards the defendant or another".

The defence should not apply where the defendant "acted in considered desire for revenge" or where "provocation was incited by the defendant for the purpose of providing an excuse to use violence".

The commission rules out creating a separate partial defence to murder which would allow a defendant to claim that they acted in self-defence despite using excessive force — the "Tony Martin" defence named after the Norfolk farmer who shot and killed a 16-year-old burglar in August 1999.

The Home Office said that it would consider the commissionπs recommendation for a review of the murder law. But sources said that the Government had no intention of abolishing the mandatory life sentence for murder.

In almost every American murder case prosecutors must decide whether the killer should be charged with "Murder One" or "Murder Two".

The distinction between "first-degree" and "second-degree" murder varies between states, although most jurisdictions define the crucial difference as premeditation.

However, as all but 12 of the 50 states permit capital punishment, the decision literally spells the difference between life and death.

"In the US, you get the death penalty only for certain first-degree crimes," Katie Monroe of the Constitution Project, a Washington think tank, said. "Usually murder associated with another crime like rape, robbery or torture or if the victim is a police officer."

The two-tiered system dates back to the old English practice of limiting the death penalty to planned murder — or murder with "malice prepensed".