Deborah Orr: Murder is foul. It's the sentencing that's wrong

Taking a life must be discouraged in the most unequivocal of terms
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The Independent Online

I heartily recommend a peep at the Law Commission's report outlining its provisional proposals for reforming the law on murder. My recommendation is based on the unlikely fact that the paper is fun, but challenging - a sort of moral sudoku, in which the entire nation is invited to construct a "ladder" which strives to ensure the "fair labelling" of those who take the lives of others. It's the sort of thing that makes one long to be a lawyer, if only there was the smallest opportunity for flexible working among the various denizens of fairness, equality, and the promotion of the "good society".

Much better, then, to log on to the Law Commission's website and ponder how to rebuild the "rickety structure set upon shaky foundations" that lacks pretty much everything - a clear definition of murder and of partial defences; clear definitions of manslaughter; and a hierarchy reflecting degrees of seriousness and degrees of mitigation which forms Britain's law governing murder.

No one can accuse the Law Commission of fluffing its timing. In the past couple of weeks, there have been several controversial manslaughter verdicts. The first came with the acceptance of Andrew Wragg's defence of diminished responsibility in his murder trial for the killing of his son Jacob. The second came with Elliot White's manslaughter verdict, even though he had taken part in the killing of John Monkton and the attempted killing of Homeyra Monkton with a knife he had taken with him when burgling their home. The third came with all four of the young people who kicked David Morley to death in a "Happy Slapping" incident being found guilty of manslaughter, not murder.

The interesting thing is that the report - presented in admirably clear language and employing admirably clear examples - concurs with the idea that none of the above should be considered to be murder, complete with mandatory life sentences. (Though they might move up from manslaughter to be second-degree murder, because there's a proposal to create an extra tier of less decisive culpability).

The commission suggests altering the definition of murder, to make it much more narrow and precise. At present, British law defines murder as taking a life with "the intention to kill or do very serious harm". It is proposed that the definition be amended so that only intent counts. Interestingly, many of the murders that most trouble the courts - the killing of a terminally ill person by an anguished carer, or of a violent and vicious husband by an abused and broken wife - would come under this category, moving down the ladder of guilt - not because they would be excluded by definition but because a battery of mitigating circumstances would trigger their demotion to manslaughter - as is often already the case.

On all those complex subtleties the report does well. But the new definition is definitely a step in the wrong direction. This definition of murder suggests that only the exotic slayings seen most commonly in crime fiction can truly be considered to be murder at all - along with the actions of paid hitmen or terrorists. Anyway, the planned and plotted crimes of malice aforethought are so often perpetrated by the sort of creature that turns out to be psychopathic, and therefore able to plead mitigating circumstances, one wonders whether such a definition would effectively drive mandatory life murder charges almost to the brink of total extinction.

This is exactly what the public does not want. Common sense dictates that the cold-blooded killer who acts with a motive, and selects his victim in order to provoke his own gain, is less dangerous to the blameless man on the street than the chaotic criminal who, perhaps under the influence of drugs, inflicts violence without even caring what its consequences may be. The Law Commission gives a neat example of how a man who throws a book out of a window in order to steal it, and kills someone when the book lands on their head, is not as culpable as a man who aims a heavy weight deliberately from a great height in order to smite someone dead.

In real life, most situations are rather less clear-cut. The person throwing the book did not do so due to angry loss of control but simply reckless selfishness. But the fact is that many more murders are committed as a result of loss of control, than as a result of reckless selfishness. This is especially true in the domestic sphere. Yet while the report actually says that a person should not be able to cite provocation due to a partner's unfaithfulness as a reason for a manslaughter conviction, its proposed definition suggests that no one at all who kills through loss of control for any reason should be considered a first-degree murderer.

Our legal system should be aware of, but should not condone, the individual's inability or refusal to take responsibility for his or her actions. These proposals sail dangerously close to condoning. Taking a life, whether deliberately or consequently, must be discouraged in the most unequivocal of terms.

Not considering or caring about what becomes of a person due to our violent or aggressive actions, to the point where loss of life occurs, is surely just as reprehensible as achieving the same result with more deliberation or a clearer motivation. Anyway, if our penal system is to have any use as a tool for rehabilitation, it must, at every stage, illuminate to the criminal the precise nature of their wrongdoing.

A person whose violence is "recklessly indifferent" must understand that to become a safe citizen capable of living among others, he or she must vanquish such a tendency - every bit as much as must the murderer who plans his crime. Treating people more leniently because they don't seem to grasp that they are responsible for their actions and their choices, is folly.

The Law Commission is hamstrung by the fact that the Home Office had forbidden it from proposing the end of mandatory life for murder, so that it doesn't look "soft". Therefore, the law cannot define even someone who acts out of love or desperation to kill a relative as a murderer, but a murderer of a much lesser order than a premeditated killer, and sentence accordingly. The law must find a different way of ensuring that the punishment fits the crime, by seeking to make the definition of what constitutes murder very, very precise and brutal and certain. This is a pity.

The Law Commission is right that we need a ladder system for dealing with this most heinous of crimes. But as long as mandatory life for murder remains, there can be no subtlety at all in the legal definition of the word. In trying to look hard, the politicians have forced the law to be softer than it wants to be. Again.