Leading article: Morbid legal rigidity

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The Independent Online

It is one of the most emotive issues you can touch: a gun is fired, an innocent life is taken, a murder is committed – and where, 70 or 100 years ago the murderer would have died at the end of a rope, in a few brief years he is among us again, his laughable "life" sentence served, smirking at the softness of our courts.

Such stories are perennially popular in the tabloid press, and it was hypersensitivity to the outrage they caused that led Labour to coin its most effective catchphrase ever: "tough on crime, tough on the causes of crime", promising, in classic old Labour fashion, to take the civilising steps that would discourage the young and poor from setting off down the wrong road, while vowing that it would also come down brutally hard on offenders.

Successive hardline home secretaries cleaved fiercely to the pledge to be tough, and as a result the discretion that judges had long enjoyed to discriminate between cold-blooded, premeditated murder, murder caused when the intention was only to warn or to wound, and murder committed in the heat of passion or at the wish and request of the "victim", was abolished. All were "murder", all were equally iniquitous crimes, and all would be punished by the same tariff: life.

This, it was decided, was the most effective way to stop the right-wing press from pouncing at regular intervals. But the resulting rigidity reduced the judge to a robot, and cast a blanket of moral uniformity over actions that ranged from the unspeakably vile to the merciful.

And it led the former government to ignore proposals made by the Law Commission back in 2004, intended to sort out what it called the "mess" of the murder law, and which would have introduced clear distinctions between different degrees of murder. That was a liberal step too far for Labour.

So it is welcome news that Keir Starmer, the Director of Public Prosecutions, has backed the introduction of the American concept of first- and second-degree murder into British law. It may seem paradoxical to borrow liberal notions from a justice system notorious for executing killers and locking cocaine dealers away until they die, but this is one thing the Americans have long got right. The end result of murder is always a dead body, which is lamentable, but there are many different ways in which that outcome can be arrived at. A recognition of that fact should again become fundamental to British justice, as it was in the past.