With Malice Aforethought : A Study of the Crime and Punishment for Homicide

For three centuries the criminal law has given rise to a divergent set of approaches to the crime of homicide. Whereas the law of murder has not fundamentally changed, the crime of manslaughter has resulted in some forms of homicide being visited with relatively minor penalties. These various categories of homicide present considerable problems relating to intention, or lack of it, and the culpability of those whose behavior, while lacking in evident malice, is characterized by the grossest recklessness. The reaction of the relatives of victims is simpler; they frequently find it impossible to distinguish between the moral culpability of a drunken or disqualified driver who kills and that of an offender who is convicted of a murder resulting from a drunken brawl. This book addresses the powerful and controversial arguments for the current distinctions between murder, manslaughter and other specific categories of crime to be abolished and subsumed within a single crime of culpable homicide. In the course of this analysis the book considers two issues of great contemporary importance: the phenomenon of corporate homicide, and the special problem which arises from establishing criminal intent and individual responsibility; and the question of the special defenses available to those charged with unlawful killing — particularly self-defense and provocation, where popular notions of what is reasonable are at variance with legal precedent. While this book considers criminal homicide in its social, historical and legal setting, it also goes far beyond in setting out the case for fundamental reform. Half Title Page......Page 2 Half Title verso......Page 3 Title Page......Page 4 Title verso......Page 5 Contents......Page 6 Table of Cases......Page 8 Table of Statutes......Page 12 What this Book is about......Page 14 Voices from Olympus......Page 16 The Task Unfinished......Page 17 Climate Change in the Politics of Criminal Justice: A Trans-Atlantic Chill......Page 19 The Resurrection of 'Civil Death': Confinement in the 'Iron Cage of Vengeance'......Page 20 Towards the Abolition of the Penalty of Civil Death......Page 21 2. The Legacy of Sr. Edward Coke, Knight......Page 28 'Think Before You Act, or How One Wrong May Lead to Another'.......Page 30 In the Beginning: Laws for Less Orderly Times......Page 31 A Forceful Man of Law; of Many Parts and Great Learning......Page 35 'Oh Yes He Is!' 'Oh No, He's Not!'......Page 41 'Whatever Happened to Justice?'......Page 42 The Legacy: A Worthy Inheritance or a Curse to Those Who Came After?......Page 44 3. Murder will out: the substantive law today......Page 46 Necessity, Duress and Self-Defence......Page 55 Defences Relating to Issues in Mental Health......Page 61 4. Hunting the Chimaera......Page 72 5. Expert Evidence on Trial......Page 86 Conclusions......Page 100 Coda: Overloading the Jury......Page 101 1066 and all that......Page 102 Objective Judgment-Guaranteed......Page 103 6. The Past Revisited: When Memory Lifts the Latch......Page 106 Thirty Years on: A Deal, Curiously Remembered......Page 107 1995: The Year of Revelation......Page 109 Half a Column of Hansard on a Summer Afternoon......Page 113 Thirty Years on: The Commons Deliberate......Page 116 7. On the Dealing Floors of the Lords: Rewind to 1965......Page 122 Just Before the Dawn......Page 125 The Day of Abolition Comes: or the Hangman's P45 (Had he not been an Independent Contractor)......Page 126 Unfinished Business......Page 134 An Unhappy Lot......Page 140 Ending the 'Executive' Tariff: The Legislative Response......Page 141 9. Corporate Killing......Page 146 Welfare and Humanitarian Legislation......Page 147 Death in Quiet Water......Page 148 Death in a Raging Sea......Page 151 Off the Rails: The Same Questions are Asked......Page 153 Is there no Remedy?......Page 156 Death on the Road......Page 160 The Blameworthy 'Accident'......Page 161 11. The Appellate Process......Page 168 Acquital, Quashed Conviction and Innocence......Page 169 12. The Crime and the Penalty: Thinking Outside the Box......Page 174 The Received Wisdom......Page 175 A View of the Life Sentence......Page 177 The Argument That Does Not Go Away......Page 178 Guidlines or Tramlines? The Essence of the Argument for Change......Page 180 Escaping the Box......Page 184 Letting them Loose or Keeping them Confined......Page 185 A Sketch for Law Reform......Page 187 Inside Out, Upside Down (Or, Back to Front)......Page 188 Conclusion......Page 191 Annex 1......Page 192 Annex 2......Page 193 Annex 3......Page 196 Annex 4......Page 200 Annex 5......Page 202 Annex 6......Page 203 Annex 7......Page 207 Index......Page 214 Half Title Page 2 Half Title verso 3 Title Page 4 Title verso 5 Contents 6 Table of Cases 8 Table of Statutes 12 1. Prologue and Apologia 14 What this Book is about 14 Voices from Olympus 16 The Task Unfinished 17 Climate Change in the Politics of Criminal Justice: A Trans-Atlantic Chill 19 The Resurrection of 'Civil Death': Confinement in the 'Iron Cage of Vengeance' 20 Towards the Abolition of the Penalty of Civil Death 21 2. The Legacy of Sr. Edward Coke, Knight 28 'Think Before You Act, or How One Wrong May Lead to Another'. 30 In the Beginning: Laws for Less Orderly Times 31 A Forceful Man of Law; of Many Parts and Great Learning 35 'Oh Yes He Is!' 'Oh No, He's Not!' 41 'Whatever Happened to Justice?' 42 The Legacy: A Worthy Inheritance or a Curse to Those Who Came After? 44 3. Murder will out: the substantive law today 46 Necessity, Duress and Self-Defence 55 Defences Relating to Issues in Mental Health 61 4. Hunting the Chimaera 72 5. Expert Evidence on Trial 86 Conclusions 100 Coda: Overloading the Jury 101 1066 and all that 102 Objective Judgment-Guaranteed 103 6. The Past Revisited: When Memory Lifts the Latch 106 Thirty Years on: A Deal, Curiously Remembered 107 1995: The Year of Revelation 109 Half a Column of Hansard on a Summer Afternoon 113 Thirty Years on: The Commons Deliberate 116 7. On the Dealing Floors of the Lords: Rewind to 1965 122 Just Before the Dawn 125 The Day of Abolition Comes: or the Hangman's P45 (Had he not been an Independent Contractor) 126 Unfinished Business 134 8. The Starting Points: where do they end? 140 An Unhappy Lot 140 Ending the 'Executive' Tariff: The Legislative Response 141 9. Corporate Killing 146 Welfare and Humanitarian Legislation 147 Death in Quiet Water 148 Death in a Raging Sea 151 Off the Rails: The Same Questions are Asked 153 Is there no Remedy? 156 10. Motorised Killing 160 Death on the Road 160 The Blameworthy 'Accident' 161 11. The Appellate Process 168 Acquital, Quashed Conviction and Innocence 169 12. The Crime and the Penalty: Thinking Outside the Box 174 The Received Wisdom 175 A View of the Life Sentence 177 The Argument That Does Not Go Away 178 Guidlines or Tramlines? The Essence of the Argument for Change 180 Untangling the Twin Threads: The Crime and the Penalty 184 Escaping the Box 184 Letting them Loose or Keeping them Confined 185 A Sketch for Law Reform 187 Inside Out, Upside Down (Or, Back to Front) 188 Conclusion 191 Annex 1 192 Annex 2 193 Annex 3 196 Annex 4 200 Annex 5 202 Annex 6 203 Annex 7 207 Index 214 This Book Addresses The Powerful And Controversial Arguments For The Current Distinctions Between Murder, Manslaughter And Other Specific Categories Of Crime To Be Abolished And Subsumed Within A Single Crime Of Culpable Homicide. In The Course Of This Analysis The Authors Consider A Number Of Issues Of Great Contemporary Importance, Including The Presentation Of Expert Evidence In Cases Involving Unexplained Infant Death, Corporate Killing, And The Question Of The Defences Available To The Accused, Including Self-defence And Provocation, Where Popular Notions Of What Is Reasonable Or Justifiable May Be At Variance With Legal Precedent. While This Book Aims To Consider Criminal Homicide In Its Social, Historical And Legal Setting, It Also Goes Far Beyond In Setting Out The Case For Radical Reform.--book Jacket. 1. Prologue And Apologia -- 2. The Legacy Of Sr. Edward Coke, Knight -- 3. Murder Will Out : The Substantive Law Today -- 4. Hunting The Chimaera -- 5. Expert Evidence On Trial -- 6. The Past Revisited : When Memory Lifts The Latch -- 7. On The Dealing Floor Of The Lords : Rewind To 1965 -- 8. The Starting Points : Where Do They End? -- 9. Corporate Killing -- 10. Motorised Killing -- 11. The Appellate Process -- 12. The Crime And The Penalty : Thinking Outside The Box -- Annex 1. Membership Of The Royal Commission On Capital Punishment 1949-53 -- Annex 2. Extracts From The Homicide Act 1957 -- Annex 3. Life Sentences For Murder : The Butler-gardner Correspondence 1961 -- Annex 4. Law Lords Voting For The Parker Amendment On 27 July 1965 -- Annex 5. Extracts From The Murder (abolition Of Death Penalty) Act 1965 -- Annex 6. Life Sentences For Murder : A Letter From Jack Straw July 2000 -- Annex 7. Practice Direction (crime : Mandatory Life Sentences) (no 2) Of 29 July 2004. Louis Blom-cooper And Terence Morris. Includes Bibliographical References And Index. For more than three centuries the criminal law has given rise to a divergent set of approaches to the crime of homicide. Whereas the law of murder has not conceptually changed, the crime of manslaughter has resulted in some forms of homicide being visited with relatively minor penalties. These various categories of unlawful killing present considerable problems relating to intention, or lack of it, and the culpability of those whose behaviour, while lacking in evident malice, is characterised by the grossest recklessness. The reaction of the relatives of victims is generally simpler. They frequently find it impossible to understand how those who kill by dangerous or drunken driving may receive comparatively lenient sentences, while those convicted of manslaughter following a drunken brawl may be dealt with more severely, and yet others, convicted of so-called 'mercy killings', are subject to the mandatory penalty of life imprisonment. This book addresses the powerful and controversial arguments for the current distinctions between murder, manslaughter and other specific categories of crime to be abolished and subsumed within a single crime of culpable homicide. In the course of this analysis the authors consider a number of issues of great contemporary importance, including the presentation of expert evidence in cases involving unexplained infant death, corporate killing, and the question of the defences available to the accused, including self-defence and provocation, where popular notions of what is reasonable or justifiable may be at variance with legal precedent. While this book aims to consider criminal homicide in its social, historical and legal setting, it also goes far beyond in setting out the case for radical reform.