The Government’s proposals to create two categories of murder — first-degree and second- degree — are a sensible response to an increasingly unsatisfactory situation. At present, the law recognises only the single crime of murder, whatever the circumstances. Since the abolition of hanging in 1965, the penalty has been a mandatory life sentence. As a result, however, scores of people who have killed, either under provocation or without premeditation, have escaped conviction because juries are reluctant to see them sentenced to a life term. The present inflexible system no longer reflects public attitudes, which vary according to the circumstances and the cruelty of the killing. Too many people who should be categorised as murderers are not being held to account; and a few whose crime bears no comparison to that of a cold-blooded killer receive the same sentence.
In practice, a distinction is already made in the tariff. Those for whom there were clearly extenuating sentences usually qualify for early release as soon as the law permits; those guilty of a particularly revolting crime are obliged to serve the full term. This, however, is still unsatisfactory: the degree of guilt should be determined by a jury and not by a review board.
The new offence of second-degree murder is well suited to those who have often escaped conviction: women who kill violent or abusive husbands and those who intend to cause harm but not kill, such as participants in a pub brawl. The category will also include those accused of “reckless indifference”. At present people who steal cars and run down pedestrians can be charged only with manslaughter. They can and should now be charged with second-degree murder. Those convicted under this new category may still have to serve a full term. But the judge would be able to impose a sentence that reflected the circumstances. And in a particularly brutal case of prolonged domestic abuse, he could also decide to give a much shorter custo- dial sentence — or even none at all.
Any redefinition of murder that brings fewer mandatory life sentences risks being attacked for trivialising the offence. There may also be public resistance to any departure from the proviso that was essential in 1965 if the public was to accept the unpopular ending of capital punishment. The present proposals have been put forward by the Law Commission, the Government’s legal watchdog, but the decision to act upon its proposals is not automatic. In this case, it should be. The Government should make clear that the changes, the most far-reaching for 50 years, are not evidence of going soft on crime, but, rather, a determination to make not only the sentence but also the charge fit the crime.
Proverbially, new laws should not be based on hard cases. But the public mood has been influenced by a number of high-profile cases that have underlined the problem of inflexible procedures. One was the case last year of a man cleared of murdering his disabled son and given a two-year suspended sentence for manslaughter. In the second, an accomplice in the murder of the City financier John Monckton escaped with a manslaughter conviction. A charge of second-degree murder would have been better in both cases. Murder remains heinous, and should still be seen as such. But society’s response needs to be more flexible and more sophisticated.