A distinctive key feature of the English criminal justice system is that it is mutually developed through the common law and the judiciary as it is through statutes and the legislative; yet each are influenced by different theories and achieving differing objectives.

Mariam del Carmen Ibrahim, Laidlaw Scholarship Summer 2019 Research Briefing on Project Findings; Supervised by Dr Hannah Bows

A COMPARATIVE STUDY OF HOMICIDE LAW IN ENGLAND AND AMERICA: THE NEED FOR CRIMINAL

LAW REFORM IN ENGLAND AND WALES

As a common law system, homicide law in England and Wales has largely remained unaltered since the 17th century. The Law Commission described the current law as a “rickety structure built on shaky foundation” and subsequently published a report in 2006 with their reform proposals; whilst some were implemented by the ‘Coroners and Justice Act 2009’, the majority. were rejected by the Government. Yet homicide law reform remains a contemporary issue, evidenced through flaws in the 2009 Act which manifest in recent cases and announcements that aspects of the law have been wrongly interpreted. Drawing comparisons from foreign legal systems, my research aims to explore the current law, highlighting current issues with the law on homicide. The first part of my research focused on exploring the developments of the criminal law and assessing why there is a need for reform; this research briefing presents these findings.

THE DEVELOPMENT OF CRIMINAL LAW A distinctive key feature of the English criminal justice system is that it is mutually developed through the common law and the judiciary as it is through statutes and the legislative; yet each are influenced by different theories and achieving differing objectives.

General Theories influencing Criminal Law

1. Harm Principle – Criminalise conduct which causes serious harm only (Hart)

2. Moralism – Courts should retain power to control moral issues raised by criminal law and

criminalise conduct which is ‘immoral’ (Devlin) 3. Harm to oneself – liberal view would also criminalise conduct concerned with self-harm to protect people from own risky behaviour 4. Paternalism – authority regulates law to protect potential vulnerable victims 5. Feminist – limited diversity in the judiciary and many defences are skewed to male favour (Hale) 6. Critical theory – criminal law is the product of social class contradictions and reflect interests of the economically powerful (Norrie) 7. Over-criminalisation – crimes created and used to deal with given problem without adequate justification. Criminal law as a last resort (Ashworth).

Theories influencing Punishment

1. Deterrence – impose a sufficient penalty to discourage future offenders

2. Retribution – criminals ought to be punished in some way

3. Incapacitation – Imprison criminals to protect public from their misconduct

4. Rehabilitation – transforming an offender into a valuable member of society

5. Restoration – repair any injury inflicted upon the victim by the offender

In addition to the competing theories the judiciary must take into account when evaluating cases, there is also the much broader doctrine of Parliamentary Sovereignty. Due to the unwritten nature of the British constitution, the legislative supremacy of

A distinctive key feature of the English criminal justice system is that it is mutually developed through the common law and the judiciary as it is through statutes and the legislative; yet each are influenced by different theories and achieving differing objectives.

Parliament is a key foundational principle. This is even more pertinent in criminal law due to the sensationalist aspect of these cases thus rendering it significant within public discourse. Moreover, studies have demonstrated that harsh punitive measures by Parliament have been supported by the public rather than a more liberal rehabilitation approach despite England having the highest incarceration rates of Western Europe. Whilst minority parties typically have more liberal rehabilitation ideals (Dingwall) it is the parties that are most likely to be in power than follow a harsher regime aligning with the perceived public opinion. Recently, the prevailing theory that has emerged is the politicisation of the criminal law. This is especially due to increased legislative response for the post 1945 escalation of crime. New laws are not being created on the basis of principle or enquiry but seemingly by successive governments courting popularity with the mass media and pressure groups, all with reference to a vague and undefined notion of ‘harm’. Whilst this may initially appear positive as this could include more people in the legislative process, deciding on arguably the most important laws – in reality their voices have not been included. There are many external organisations (such as the Howard League for Penal Reform, the Law Commission, in addition to charities and more). Yet none have achieved anything substantial; the Law Commission could not even ensure that Parliament took their findings seriously. Additionally, Garrison puts forward a tenuous argument that academics influence the policy making of criminal law.

CENTRAL CRIMINAL COURT CASE STUDY

During my research period, I was fortunate enough to visit the Central Criminal Court for England and Wales in London. I had the opportunity to informally interview the Sheriff, judges and others working at the Old Bailey like the Clerk. Whilst they were somewhat constrained in what they could say due to

their need for impartiality, the overwhelming preference was for rehabilitation. This is clearly at odds with the prevailing public view and the approach taken by Parliament.

Garrison utilises a flow chart to highlight the significance of research. Yet ultimately research is simply used to inform policies rather than influence it; Parliament will ultimately always seek to satisfy public concerns and thus this has led to the rise of symbolic politics within criminal justice policies (Pettigrew). The theory of symbolic politics was first posited by Murray Edelaman in 1964 that parties use political platforms to make symbolic rather than substantive statements. He delineates between tangible actions where the government responds to a problem by enacting programs specifically designed to address the problem and symbolic actions where policies are passed by the government to appease public concern without substantively addressing the underlying problems. A study done by Oliver and Marion (2008) concluded that 85% of parties included symbolic language when it came to criminal justice policy and the rise of symbolic politics in criminal law is becoming worryingly prevalent. However, Stolz (2002) argues that there are some positive functions of symbolic policies. FUNCTION OF SYMBOLIC POLICIES

1. Reassurance – reassures public that action is being taken

2. Educative – talking about the policy issue helps educate public

3. Simplify – addressing the issue can help politicians simplify what seems to be a complex problem helping the electorate focus on the issue

A distinctive key feature of the English criminal justice system is that it is mutually developed through the common law and the judiciary as it is through statutes and the legislative; yet each are influenced by different theories and achieving differing objectives.

4. Moral educative – helps to delineate between acceptable behaviour and not 5. Model – sends message about what statutes is needed for future laws

Whilst the individual functions are convincing to varying degrees, and Stolz’s functions may provide some reassurance, the reality of symbolic politics proves to be incredibly destructive for the future of the criminal justice system, affecting the integrity and substance of future laws passed by Parliament. Pettigrew illustrates an example of the detrimental effect of symbolic politics in the criminal justice system. In 2012, there was tension between the government (particularly the Home Secretary) and the police force due to severe budget cuts. (Shaw, 2012). This was evident in public discontent, street protests and minister heckling. After the high-profile murder of two police officers, public sympathy and support was acted upon by the Home Secretary in a symbolic fashion – not addressing the financial concerns. There was legislative change so that the murder of a police officer in the course of their duty was added into the Criminal Justice and Courts Act s27(2). This was a tokenistic gesture as the perpetrator was already sentenced to whole of life imprisonment without this expansion and the Home Secretary cited the names of all the police officer who had been killed in the preceding 12 months without reference to low number in context, placing herself as the restorer of a “common sense” strong solution to a real problem. Yet, the ONS statistics demonstrate that in the context of wider homicide rates the murder of a police office is a rate event. Therefore, this was no longer about deterrence but was about symbolic politics. Additionally, this has the additional benefit of gaining public support for legislative amendment that would signify opposition to the ECtHR – public rebuttal of the “mission creep” and perceived into domestic sovereignty by the ECtHR; this is particularly significant after a series of unfavourable rulings made for the UK regarding prisoner voting rights and the extradition of offenders. Ultimately the development of the criminal law is mainly shaped by Parliament due to various democratic legitimacy concerns. However, the rise of

symbolic politics affecting the criminal justice system, this has begun to demonstrate some detrimental effects on the development of the criminal law.

THE NEED FOR REFORM Any amendment of the law on homicide is significant because homicide offences are arguably the most serious of all criminal offences therefore convictions greatly restrict upon the liberty of the offender. Additionally, this forms part of the state’s obligation to protect the right to life under Article 2 of the European Convention on Human Rights. Homicide is currently split into murder and manslaughter with murder carrying the mandatory punishment of life imprisonment as set in the Murder (Abolition of Death Penalty) Act 1965. Release on licence after a minimum term Is possible as set in the Criminal Justice Act 2003 but after the UK successfully argued for it in the European Court of Human Rights, the principle of “life means life” still stands for very serious cases (Hutchinson v UK [2015]. It has been argued for more than three decades that the homicide law is in need of reform (Ashworth and Horder, 2013) but the most substantial reform proposal was advanced by the Law Commission in their 2006 report.

LAW COMMISSION PROPOSAL

3 tier system of general homicide offences o first degree murder (mandatory life sentence) o second degree murder (discretionary life sentence) o manslaughter (discretionary life sentence)

law on provocation replaced by partial defence of killing in response to gross provocation or to fear of serious violence (Removing requirement of a loss of self-control)

modernise defence of diminished responsibility so requirements include: abnormality of mental functioning arising from a recognised medical condition and/or in the case of a defendant under the age of eighteen, developmental immaturity

partial defences would reduce first degree murder to second degree murder

A distinctive key feature of the English criminal justice system is that it is mutually developed through the common law and the judiciary as it is through statutes and the legislative; yet each are influenced by different theories and achieving differing objectives.

However, these reforms and suggested proposals were met with wide ranging criticisms. Victor Tadros criticised the Law Commission’s suggestions stating that the proposed ascending ladder of seriousness according to the degree of fault “might add a familiar attitudinal concept: indifference to death” Disagreements might also appear as to which rung constitutes a more serious offence, and weighing an intention could lead to various degrees of subjectivity coming into play. (Tadros, 2007). Additionally, Elliot and de Than (2009) considered that the proposals are “too deeply rooted in the historical foundations of the common law … legislation needs to tackle directly the type of homicide offences that are being committed in modern society. In some cases, it felt that proposals did not go far and left some issues unaddressed, such as joint enterprise as evidence in R v Jogee [2016]. Judge Matravers commented that whilst reform would achieve fairness, it would be at the expense of simplicity. It would be difficult for judges to direct the juries so the effectiveness of the reforms may not as successful as expected. Oliver Heald also argued that a three-tier system of offences similar to the US would create a ‘murder-lite’ category for most killings and a downgrade to a second-degree category would be unacceptable in the eyes of the public.

PROBLEMS THAT REMAIN Proponents of additional change base their arguments around fair labelling, mandatory sentencing not being an accurate representation, incorrect interpretation of the current law and the contradictory results of the current system. One of the key problems is with fair labelling. Lord Steyn expressed his dissatisfaction with the system by noting that “defendants are being classified as murderers who are not in truth murderers”. (R v Powell and Anor [1997]) for example in joint enterprise cases.

GOVERNMENT RESPONSE

Elected not to proceed with reforms to the structure of homicide

Largely accepted proposals regarding provocation and diminished responsibility

Chalmers and Leverick (2008) discussed the important of labelling as a means of communicating the seriousness of an act; yet that this argument has paradoxically been used to justify separating and uniting offences. However, the Law Commission have insisted that the offence of murder should stay separate from manslaughter so not to send a wrong signal about the stigma attached to the seriousness of the crime.

CONCLUSION Ultimately, my research period this summer allowed me to contextualise my overall research. By analysing what shapes the development of the common law and the current problems, I will be better equipped next summer to explore how these issues manifest themselves in contemporary cases and propose my own substantive reforms.

BIBLIOGRPAHY

Ashworth, A. and Horder, J., (2013) Principles of Criminal Law. 7th edition, Oxford:

Oxford University Press

A P Simester et al, Simester and Sullivan’s Criminal Law – Theory and Doctrine (7th edn., Hart Publishing, 2019

BBC Staff, (2010) Murder sentence changes supported by top prosecutor. BBC News, 8

September [viewed 03 April 2017].

Chalmers, J. and Leverick, F., (2008) Fair Labelling in Criminal Law. Modern Law Review

71(2), p. 217–246 Elliott, C. and de Than, C., (2009) Restructuring the Homicide Offences to Tackle Violence,

Discrimination and Drugs in Modern Society. King’s Law Journal, 20(1), p. 69–88

Garland, D., & Sparks, R. (2000). Criminology, social theory and the challenge of our times. British Journal of Criminology, 40, 189–204

Janet Loveless, Mischa Allen, and Caroline Derry, Complete Criminal Law (6th edn., OUP,

2018

Gavin Dingwall (2013) Minority parties and the changing politics of criminal justice, Criminal Justice Matters, Volume 91 2013, Issue 1: Prison ethnography p6-7

Jones, T., & Newburn, T. (2013). Policy convergence, politics, and comparative penal reform: Sex offender notification schemes in the USA and UK. Punishment & Society, 15(5), 439–467

Law Commission, (2004) Partial Defences to Murder. Report № 290. London: HM

Stationery Office

Law Commission, (2006) A New Homicide Act for England And Wales? Consultation Paper

177. London: HM Stationery Office

Ministry of Justice, (2008) Murder, manslaughter and infanticide: proposals for reform of

the law. Consultation Paper CP 19/08. London: Ministry of Justice

ONS (Office for National Statistics). (2015) Statistical bulletin: Crime in England and Wales, Year Ending March 2015

Pettigrew, M. (2015). Whole of life tariffs in the shadow of Europe: Penological foundations and political popularity. The Howard Journal of Criminal Justice,

54(3), 292–306.

Politics, Policy and Street Crime. The Annals of the American Academy of Political and Social Science, Vol. 539, Reactions to Crime and Violence (May, 1995), pp. 155-168

Review of ‘Ethics, Public Policy, and Criminal Justice by Frederick Elliston and Norman Bowie’ by Roberto Hugo Potter Business & Professional Ethics Journal, Vol. 2, No. 3 (Spring 1983), pp. 79-80

Ormerod, D., (2009) Smith and Hogan: Criminal Law. Cases and Materials. 10th edition.

Oxford: Oxford University Press

Shaw, D. (2012, July 2). Police budget cuts risk to three forces HMIC warns. BBC News

Sharon, C. C. (2011). The “Most Deserving” of death: The narrowing requirement and the proliferation of aggravating factors in capital sentencing statutes. Harvard Civil Rights Civil Liberties Law Review, 46, 232–252.)

Symbolic Politics, Criminal Justice Policy, and Third Political Party Platforms, Nancy E. Marion and Willard M. Oliver. Criminal Justice Policy Review 21(4) 476-499

Tadros, V., (2006) The Homicide Ladder. Modern Law Review 69(4), p. 601–618

Travis, A., (2016) Murder law will not be reformed, justice minister tells MPs. The

Guardian, 14 September [viewed 03 April 2017

A-G’s Reference (№ 3 of 1994) [1997] 3 All ER 936

Hutchinson v United Kingdom, [2015] ECHR 57592/08

R v Cunningham [1982] AC 566; R v Jogee [2016] UKSC 8; R v Nedrick [1986] 1 WLR

1025; R v Powell and Another [1997] UKHL 45; R v Woollin [1999] AC 82; Coroners and

Justice Act 2009’Criminal Justice Act 2003;Murder (Abolition of Death Penalty) Act 1965