Deliberate killing is not always murder

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The Independent Online

This country's criminal justice system is too rigid when it comes to the charge of murder. As things stand, anyone accused of intentionally causing the death of another person must be charged with murder. In real life, though, things are rarely so simple. There is little moral equivalence, for instance, between the actions of a serial killer and the act of a doctor who has given a dying patient a lethal injection to ease his suffering. The same is surely true in the case of a victim of sustained domestic abuse who is driven to kill her abuser. Justice demands that we handle such cases very differently. Yet, under the present system, all must be charged with murder and treated as if each crime was of equal gravity.

This country's criminal justice system is too rigid when it comes to the charge of murder. As things stand, anyone accused of intentionally causing the death of another person must be charged with murder. In real life, though, things are rarely so simple. There is little moral equivalence, for instance, between the actions of a serial killer and the act of a doctor who has given a dying patient a lethal injection to ease his suffering. The same is surely true in the case of a victim of sustained domestic abuse who is driven to kill her abuser. Justice demands that we handle such cases very differently. Yet, under the present system, all must be charged with murder and treated as if each crime was of equal gravity.

So we welcome the call of Ken Macdonald, the Director of Public Prosecutions, for the introduction of a more flexible system. What he recommends is the introduction of "degrees of homicide". This would be similar to the system in the US, in which defendants can be charged with "murder one" or "murder two": killers are treated differently, depending on whether their act was premeditated or accompanied by another crime. This is sensible because it gives the judge greater scope for discretion when it comes to sentencing.

Of course, judges already exercise discretion to some extent. For instance, in mercy killing cases, mandatory life sentences are often avoided because a deal is struck between the defence, the prosecution and the court to agree that the responsibility of the accused was diminished. But a reform of the murder classification would make the application of common sense substantially easier.

It would also help to insulate judges from populist governments and their desire to dictate minimum sentences for specific crimes. It is not just in murder cases that judges must be free to use their discretion. The intense pressure to jail people for less serious crimes has brought Britain's prison population to a record high. It is painfully clear that what is required is an expanded use of non-custodial sentencing and a greater emphasis on rehabilitation. But whenever such progressive ideas raise their head, they run up against the instinct of many politicians to appear "tough" on crime. The shameful attempt by both Labour and the Tories during the election campaign to ridicule the Liberal Democrats' proposals to scrap minimum sentences demonstrates this tendency perfectly.

Reforming the charge of murder will affect a relatively small number of cases. But it will improve the prospects that justice will be done. And it represents a good opportunity to curtail the often baleful interference of politicians in our system of criminal justice.

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