Partial defences to murder

What are they?

A defendant who committed the actus reus of murder with the mens rea will only be found guilty of voluntary manslaughter if he can raise a partial defence of loss of control or diminished responsibility. (There are other partial defences such as infanticide, or acting pursuant to a suicide pact, but I am not concerned with those here.) The purpose of this note is to suggest that there is no need for these partial defences to exist.

The mandatory life sentence

Before 1965, it made a huge difference whether or not you were convicted of murder or voluntary manslaughter: if you were convicted of murder, you could be executed. Nowadays, the difference it makes is that someone who is convicted of murder is punished with a ‘mandatory’ sentence of ‘life imprisonment’; someone who is merely convicted of voluntary manslaughter is given a sentence that fits the circumstances of this case.

But what does it actually mean for a murderer to be given a ‘mandatory’ sentence of ‘life imprisonment’? What actually happens to him or her? To answer these questions, we need to look at the Criminal Justice Act 2003, which sets out the statutory framework for sentencing someone who has been found guilty of murder.

Under the 2003 Act, the judge sentences the prisoner to life imprisonment but also specifies a minimum term that the prisoner must serve before the prisoner will be eligible for parole. In setting this minimum term, the judge must first take into account the prisoner’s age. If the prisoner is an adult who is 21 years old or over, the judge must first select a starting point for determining the minimum term he or she will spend in prison. There are four possible starting points:

(1) The prisoner will never be released on parole (a ‘whole life order’) – this is only appropriate if the murder was extremely serious, which will be the case if: (i) the prisoner murdered two or more people and the murders involved a high degree of premeditation, abduction of the victims, or sexual or sadistic conduct; (ii) the prisoner murdered a child, and the murder involved the abduction of the child, or was motivated by sexual or sadistic reasons; (iii) the murder was carried out for political, religious or ideological reasons; (iv) the prisoner had already been convicted of murder previously.

(2) The prisoner will serve a minimum of 30 years in prison – this is the appropriate starting point in cases such as the murder of a police officer, murders for gain, murders intended to obstruct the course of justice, murders involving sexual or sadistic conduct, ‘hate’ murders where the race or religion or sexual orientation of the victim played a part in their being killed.

(3) The prisoner will serve a minimum of 25 years in prison – this will be the appropriate starting point where the prisoner committed the murder with a knife or other weapon that he took to the scene of the crime intending to commit an offence, or to have it available as a weapon.

(4) The prisoner will serve a minimum of 15 years in prison – this will be the appropriate starting point where the prisoner committed a murder that does not fall under (1), (2) or (3), above.

Having decided what his or her starting point will be, the judge must consider any aggravating or mitigating factors that might make it inappropriate to make the prisoner serve the ‘starting point’ minimum sentence. Mitigating factors include: (i) the prisoner only intended to cause gbh and not to kill; (ii) the murder was not premeditated; (iii) the prisoner was acting under the influence of a mental condition; (iv) the prisoner was provoked to act as he or she did.

Under s 28 of the Crime (Sentences) Act 1997, once a murderer has served his or her minimum sentence, his or her case must be referred to the Parole Board and – if the Parole Board declines to direct his or her release – every two years subsequently. If the Parole Board is satisfied that ‘it is no longer necessary for the protection of the public that the prisoner should be confined’ (s 28(6)) then they will direct that the prisoner be released, and he or she must then be released. But the prisoner is only released ‘on licence’ and his or her status as being released ‘on licence’ continues until he or she dies (s 31(1)). The prisoner’s licence to be released may be revoked at any time on the recommendation of the Parole Board (s 32(1)). And one of the conditions of the prisoner’s being released on licence is that the prisoner place him or herself under the supervision of a probation officer.

What if the partial defences didn’t exist?

If the partial defences didn’t exist, a defendant who intentionally killed another in circumstances currently covered by the defences of loss of control (Coroners and Justice Act 2009, ss 54-55) or diminished responsibility (Homicide Act 1957, s 2, as amended) would be found guilty of murder. This would make the following practical differences to the defendant:

(1) The defendant would incur the stigma of being convicted of murder rather than manslaughter.

(2) The defendant would be given a mandatory sentence of life imprisonment, as opposed to being given a sentence appropriate to the circumstances of his or her case. However, the defendant would probably do no more time in prison as a result of being given a mandatory sentence of life imprisonment than he or she would have if he or she were convicted of manslaughter. This is because the judge, in fixing the minimum term the defendant would have to spend in prison, would almost certainly have a 15 years minimum sentence as his or her starting point, and then could reduce that minimum sentence down to take account of the element of mitigation in the defendant’s case. Having served his or her minimum sentence, in a loss of control case, the defendant would almost certainly be released as his or her further detention would no longer be ‘necessary for the protection of the public’. In a diminished responsibility case, the position might be more complicated depending on the defendant’s mental condition.

(3) Once released, the defendant would come under a lifelong obligation to report to a probation officer, and would always live in fear of being recalled to prison on the recommendation of the Parole Board.

These are the differences that the existence of the partial defences currently makes to the position of a defendant who is accused of murder but can take advantage of a partial defence. Given this, the question is – Should it make any difference to us if the partial defences were abolished?

In the case of someone who has killed in circumstances covered by the defence of loss of control, the abolition of the defence will almost certainly not make any difference to how long the defendant spends in prison. So the defence exists solely to save the defendant from the effects (1) and (3) that being convicted of murder would have on him or her. It is not clear that we should want to save someone who has killed someone because a ‘qualifying trigger’ caused them to lose control of themselves from effects (1) and (3). Having chosen to kill someone else, it might be argued that they deserve the stigma of being labelled a ‘murderer’; and having shown themselves capable of ‘losing it’ so badly that they end up intentionally killing someone else, it might be argued that they should be monitored once they leave prison.

For the same reasons, it could also be argued that we should not want to save someone whose responsibility for intentionally killing someone else was ‘diminished’ by their ‘suffering from an abnormality of mental functioning’ from effects (1) and (3) that being convicted of murder would have on them. Moreover, it could be argued that giving such a defendant a mandatory sentence of life imprisonment would have the positive advantage of allowing the Parole Board to evaluate the defendant’s mental condition once his or her minimum term is up, and allow the Parole Board to decline to order the defendant’s release if his or her mental condition is such that there is a real danger that the defendant might kill again if released.

At any rate, the above discussion should make it clear that justifying the existence of the partial defences simply on the basis that they are needed to mitigate the rigours of the mandatory life sentence is overly simplistic. In fact, it is hard to avoid the impression that the fuss that the criminal establishment makes over the partial defences may be attributable to the fact that they have fooled themselves into thinking that a mandatory sentence of life imprisonment means more than it does.

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