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CONTACT US
Drystone Chambers
35 Bedford Row
London
WC1R 4JH
DX: 332 London/Chancery Lane
In a report in 2006 the Law Commission described the law governing homicide as: “a rickety structure set upon shaky foundations”[1]. In the 20 years since the report, those structures and foundations have continued to shake.
The decision of the Law Commission to publish a consultation paper on homicide offences is therefore to be welcomed even if the final recommendations to government are not expected until 2028.
Provisional proposals
The provisional proposals aim to “ensure that homicide offences accurately reflect the defendant’s culpability and that, on conviction, the defendant would receive a proportionate sentence.” In particular, the proposals include the creation of three tiers of homicide:
It follows that those who intend to kill or cause serious injury would still continue to be convicted of murder. However, life imprisonment would be discretionary rather than mandatory for all but first-degree murder.
Partial defences to murder (diminished responsibility and loss of control)
The rationale behind the Law Commission’s proposal to include cases involving partial defences such as diminished responsibility or loss of control within the category of second-degree murder is well recognised and set out in the Consultation:
“we think it is irrational and confusing for a successful partial defence to result in a conviction for (voluntary) manslaughter. The offence of manslaughter is conceptually different from murder. In cases where a partial defence applies, the defendant still has the necessary fault element for murder; they intended either to kill or cause serious injury” However, “… the defendant is less blameworthy in the circumstances, despite their intent. In our view, it is more appropriate for such cases to remain within the boundaries of murder, but within the second tier, reflecting lower broad culpability.”
Manslaughter
Reckless manslaughter would apply in those cases whereby a defendant was aware of a risk of causing death or serious injury and unreasonably ran that risk. Unlawful dangerous act manslaughter would apply to a defendant who intended to cause some injury or was reckless as to whether some injury was caused. And gross negligence manslaughter would be charged if a defendant’s conduct were truly exceptionally bad, falling far below what could reasonably be expected in the circumstances.
The proposals, seek to introduce much needed nuance and discretion. If accepted, they would represent some of the most important changes to the law governing homicide for decades.
In choosing not to implement the 2006 recommendations as to the three-tier structure, the then Government explained “the time is not right to take forward such a substantial reform of our criminal law”[2]. Twenty years on, let’s hope the time is right now.
[1] Murder, Manslaughter and Infanticide (2006) Law Com No 304, para 1.8. The Law Commission.
[2] Report on the implementation of Law Commission proposals HC 719
About the Author
Allison Summers KC was called to the bar in 2000 and took Silk in 2020. She is ranked as a Leading Silk in Chambers UK Bar 2026 and Legal500 2026. Allison has a national defence-based practice, and specialises in cases involving homicide, other serious violence, and sexual offences. She appeared in the 2022 BBC documentary Sexsomnia: Case Closed? which looked at some of the legal issues relating to prosecuting and defending cases when sexsomnia was raised.
To instruct Allison, please contact the Practice Director, Chris Feathers, on 020 7404 1881
