Murder, she wrote
Law Commission proposes three-tier justice
Homicide law in England and Wales is “incoherent, uncertain and unfit for modern purposes”, the government’s law reform advisers have told ministers. In a consultation paper published today, the Law Commission says the case for reform remains as strong as it was 20 years ago — when the commission last called for the repair of “a rickety structure set upon shaky foundations”.
Some areas of homicide law have remained unaltered since the seventeenth century. Parliament has never undertaken a structural reform of homicide and has never provided statutory definitions of murder and manslaughter — which remain offences under common law alone. However, in December 2024 the then home secretary Shabana Mahmood announced that she was calling in the Law Commission again.
Today’s 238-page consultation paper deals mainly with the structure of homicide offences. It will be followed next summer by a consultation paper looking at defences and sentencing. Final recommendations to government are expected in 2028.
Professor Penney Lewis, the commissioner for criminal law, said:
Homicide offences in England and Wales have never been the object of a coherent and structured reform and the law has not kept pace with what society now understands about culpability, domestic abuse and the consequences of dangerous conduct.
This review offers a timely opportunity to modernise the law and to build a fairer and more proportionate framework that reflects the degrees of culpability of offenders. We want to hear from as many people as possible with experience in this area before we make our final recommendations.
All the proposals are provisional and responses are invited before the end of September.
Three-tier justice
Instead of the present division between murder — for which life imprisonment is mandatory — and manslaughter, for which it is optional, the commission is proposing three tiers of homicide:
First-degree murder, if the defendant intended to kill. Life imprisonment would be mandatory, as at present.
Second-degree murder, if the defendant killed with the intention of causing serious injury. An offence would also come within the second tier if the defendant had been charged with first-degree murder and a partial defence proved successful.
Manslaughter, comprising reckless manslaughter, unlawful dangerous act manslaughter and gross negligence manslaughter. These cover cases of unlawful killing where there was no attempt to kill or cause serious injury.
Life imprisonment would be discretionary rather than mandatory for all but first-degree murder. Those who intend to kill or cause serious injury would continue to be convicted of murder. But the judge would not have to pass a life sentence if there was no intention to kill.
Partial defences
At present, a partial defence reduces murder to what’s called voluntary manslaughter.
For example, Valdo Calocane, who killed three people in Nottingham in 2023 and tried to kill three others, pleaded guilty to three counts of manslaughter on the grounds of diminished responsibility — as well as three counts of attempted murder. He received an indefinite hospital order. That led to public concern.
Reducing murder to manslaughter is irrational and confusing, the commission says. So it proposes that a partial defence — such as diminished responsibility — would reduce first-degree murder to second-degree murder. There would be a new jury verdict of “murder with a partial defence”.
Reckless manslaughter would be charged if the defendant was aware of a risk of causing death or serious injury and unreasonably ran that risk. Unlawful dangerous act manslaughter would apply to a defendant who intended to cause some injury or was reckless as to whether some injury was caused. And gross negligence manslaughter would be charged if a defendant’s conduct was truly exceptionally bad, falling far below what could reasonably be expected in the circumstances.
Other offences
There are specific homicide offences such as causing death by dangerous driving and causing or allowing the death of a child or vulnerable adult. These would be retained.
Uniquely, infanticide is both a specific offence and a defence to murder or manslaughter. It too would remain unchanged.
There have been suggestions that the term “manslaughter” should be replaced and so the Law Commission is inviting views on alternative terminology. The terms “first-degree murder” and “second-degree murder” could also be changed.
The commission has not made provisional proposals to reform the law of complicity (sometimes called “joint enterprise liability”) because this law does not apply exclusively to homicide. However, it says the proposed changes to the structure of homicide offences would, in some cases, make it easier to distinguish between the culpability of a principal offender (who committed the fatal act) and an accessory (who assisted or encouraged the principal offender), resulting in more proportionate sentences.