Homicide and the Politics of Law Reform (Oxford Monographs on Criminal Law and Justice)

What makes murder, murder? How should we understand the difference between intentional and reckless killing? Should offenders be punished differently according to the perceived severity of their crime and when should they be excused? These questions are the topic of intense debate within legal circles and beyond in the UK, the US, and the rest of world. Jeremy Horder's role as the Law Commissioner for England and Wales on criminal law has given him unique insight into these questions and the debates surrounding them. Here he analyses the recent political and legal reform movements, offering a political history of homicide law reform from the 19th century to the modern era. Using homicide as a starting point, Horder raises deeper questions of who is and should be responsible for making and changing the law. What role should there be for expert bodies, judges, and politicians? What role should there be for the general public? These are technical legal issues but ones which invoke strong emotional responses. By examining these questions, Horder offers an insider's view into the processes of achieving law reform and expresses criticism of a system that excludes the vast majority of people from consultation on reform of the laws that govern them. Cover Contents Table of Cases Table of Legislation I. HOMICIDE LAW REFORM AND LAW REFORMERS: THE ENGLISH EXPERIENCE 1. Safe in Whose Hands? Judges, Experts, and Public Opinion in the Homicide Reform Process I. Introduction and Overview II. The Ruling Elite and Criminal Law Reform: The Judiciary in Control III. ‘Seekers after Legal Paradise’: Scholars and the Utopian World of Law-craft IV. Officialdom, Interest Group Pluralism, and the Myth of Public Consultation V. Opening Pandora’s Box? Homicide Law and Public Opinion 2. The Rise of Regulation and the Fate of the Common Law I. Introduction II. Homicide Offences: The Traditional–Codificatory View III. The Traditional–Codificatory Account Theorized IV. Homicide Offences: Competing Models V. The Regulatory Model Exemplified VI. Murder and Manslaughter: The Growing Crisis of Confidence VII. Pressure Group Politics and Specialized Offences VIII. Homicide: Reconciling Common Law and Regulatory Values II. HOMICIDE OFFENCES: DISPUTING THE BOUNDARIES 3. On Being, Morally and Legally Speaking, a ‘Murderer’ I. The Law Commission’s Three-tier Structure for Homicide II. The Fault Element for First Degree Murder III. Second Degree Murder: Cases of Intending Serious Injury IV. Second Degree Murder: Tackling Reckless Killing V. Taylor’s Criticisms of the Final Recommendations VI. Questioning the Aspiration for a Codified ‘Law of Homicide’ VII. Plural Values and the Virtues of Piecemeal Reform 4. Corporate Manslaughter and Public Authorities I. A Public Culture of Neglect: Employers, Employees, and Consumers II. The Reach of the Duty of Care: Public and Private Organizations III. The Potential Impact of the 2007 Act on Negligent NHS Trusts IV. Proving Fault under the 2007 Act V. Privileging the Public Sector: the Exemptions from Liability 5. Violating Physical Integrity: Manslaughter by Intentional Attack I. The ‘Pure’ Form of Manslaughter II. The Two Essential Features of the Pure Form of Manslaughter III. The Importance of the Intrinsic Value of Physical Integrity IV. The Value of Physical Integrity and Fault Requirements in Homicide V. The Current Law and the Pure Case of Manslaughter Compared VI. The Place of Manslaughter in Homicide Law and Manslaughter in its Place VII. Violations, Invasions of Interests, Recklessness, and Risking Death 6. Joint Criminal Ventures and Murder I. Murder during a Joint Criminal Venture: The Failures at Common Law II. Murder in a Joint Criminal Venture: The Abandoned Path to Reform III. Codifying Complicity Law: How ‘Benthamite’ Should One Be? IV. Clause 2, Uncertainty, and Article 7 of the European Convention V. Murder and Joint Ventures: The Provisions of the ‘Discarded’ Bill VI. The Problem of Distinguishing the General from the Particular VII. A Viable Alternative? VIII. Concluding Remarks 7. Transferred Malice and the Remoteness of Outcomes from Intentions I. The ‘Impersonality’ and the ‘Prohibited Outcome’ Doctrines II. Transferred Malice and the ‘Remoteness’ Principle III. Is There Simply a Break in the Causal Chain in Examples 1–3? IV. The Prohibited Outcome and Remoteness Doctrines, Transferred and Translated Intent V. The Serious Harm Doctrine, the Prohibited Outcome Doctrine, and the Remoteness Principle VI. The Criticisms of Simister and Sullivan et al III. DEFENCES TO MURDER 8. Wrong Turnings on Defences to Murder I. Civilized Law and Law Reform II. Defective Foundations: The Royal Commission and the 1957 Act III. Excessive Defence: The Final Frontier? Bibliography Index A B C D E F G H I J K L M N P Q R S T U V W Z What makes murder, murder? How should we understand the difference between intentional and reckless killing? Should offenders be punished differently according to the perceived severity of their crime and when should they be excused? These questions are the topic of intense debate within legal circles and beyond in the UK, the US, and the rest of world. Jeremy Horder's role as the Law Commissioner for England and Wales on criminal law has given him unique insight into these questions and the debates surrounding them. Here he analyses the recent political and legal reform movements, offering a political history of homicide law reform from the 19th century to the modern era. Using homicide as a starting point, Horder raises deeper questions of who is and should be responsible for making and changing the law. What role should there be for expert bodies, judges, and politicians? What role should there be for the general public? These questions invoke strong emotional responses. Horder argues that comprehensive research into, and a degree of difference to, public opinion on the scope of homicide is essential to the reform process. It is essential principally as a means of conferring true legitimacy on homicide reform in a democracy. Elite or expert opinion alone will never authentically secure such legitimacy. Offering an insider's view into the processes of achieving law reform, Horder expresses criticism of a system that excludes the vast majority of people from consultation on reform of the laws that govern them. A Fascinating Study Of The Law Of Homicide, Examining Its Recent Development And Providing An Insider's View On The Politics Of Law Reform. Challenging Current Thought, It Argues For The General Public To Have A Greater Role In The Process Of Law Reform Including Offenses Such As Murder, Manslaughter, And The Highly Debated Corporate Homicide. Jeremy Horder. Includes Bibliographical References (p. [256]-268) And Index.