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					Professor J.R. Spencer, QC,
University of Cambridge1

Response to Ministry of Justice Consultation Paper Murder, manslaughter and
infanticide: proposals for reform.

    A. General comments

    1. As you already know, I am strongly opposed to what the Government’s plans as
       outlined in this Consultation Paper. I set out my reasons in an article that appeared
       in Archbold News last month, a copy of which I have attached as an Appendix to
       this response, and also gave them orally at the three “Stakeholders’ Meetings” to
       which you kindly invited me. But to summarise them once more, I believe what is
       proposed is objectionable because:

    -   the law of murder is already harsher than it should be, partly because the
        definition of offence is over-broad, and partly because it carries a mandatory life
        sentence; in broad terms, the effect the package of measures proposed in the
        Consultation Paper (unlike the Law Commission’s broader package) would be to
        expand the range of the crime of murder further, so increasing the number of
        mandatory life sentences, and thus increasing the overall injustice of the current
        law;

    -   the proposals would, if enacted, make the law (even) more complicated and
        confusing than it is already;

    -   and taken as a whole, the package of proposals the Government wishes to enact
        (unlike the Law Commission’s broader package) appear to have no identifiable
        policy or unifying philosophy. Although the Government has indicated that the
        Draft Bill attached to this Consultation Paper is just the first helping and it intends
        to carry out the Law Commission’s full scheme eventually, there is no obvious
        reason for doing it in two stages and, as the Law Commission’s scheme was
        designed to be an integrated whole, there are equally obvious reasons for doing it
        in one. At the beginning of the Consultation Paper, the Government complains
        that the evolution of the law of murder over many years has “occurred in a
        piecemeal fashion, without consideration of how the law as a whole fits together”;
        and the disjointed proposals in the Consultation Paper guarantee us yet more of
        the same. (To the cynical reader, it looks suspiciously as if the Government is
        “cherry-picking” the recommendations from the Law Commission’s Report that it
        thinks will play well in the media, and quietly forgetting the rest!)

    2. Abolish the mandatory life sentence, or failing that, give the jury a general power
       to “disapply” it The root of the problem, as everybody with practical experience
       of the system knows, but politicians lack the courage to admit, is the mandatory

1
  This response was written after discussion with a group of Cambridge colleagues. Although not all of
them would agree with everything I have said, I gratefully acknowledge their help and their suggestions.


                                                                                                           1
        life sentence. If following a conviction for murder the court had a discretion as to
        sentence, there would be no real need for the “partial defences” at all – let alone a
        perceived need to “fine tune” them by the sort of legislation that is proposed here.
        The mandatory life sentence ought to be abolished.

    3. But if that is politically impossible, then I believe an acceptable a half-way house
       would be to enable juries, when convicting of murder, to declare the existence of
       “extenuating circumstances”, the effect of such a declaration being that the judge
       would no longer be obliged to impose a life sentence, but would then have a
       discretion as to the sentence given.

    4. This idea comes, in part, from France. In France, mandatory minimum sentences
       were abolished – even for murder – in a reform in 1994. But before that date they
       were prescribed by statute for a number of grave offences, and where this was so,
       the jury could, by declaring the existence of circonstances atténuantes, “disapply”
       the statutory minimum, and the court then had a discretion as to sentence. As to
       what could constitute a circonstance atténuante the law set no formal limits. The
       power to find circonstances atténuantes was “understood as sort of judicial
       corrective to the excessive abstract rigour of the legal text”.2 The idea also comes
       from the Report of the Royal Commission on Capital Punishment in 1953, which
       said that, if the death penalty were to be retained for murder, the jury should be
       given the function of ordering a reprieve which at that time was carried out by the
       Home Secretary.3 It also reflects the practice, in the days of capital punishment, of
       juries making “recommendations to mercy” – although of course these were not
       binding.

    5. I believe this solution would take the “sting” out of a number of issues in the law
       of murder on which seem to be particularly intractable. One of them would be
       mercy killings. The mercy killer would be convicted for murder – but would not
       receive a sentence of life imprisonment. Similarly for the battered wife, who with
       premeditation kills an ogre of a husband, whose disappearance leaves the world a
       better place. It would also help resolve the problem of defendants in murder cases
       the mitigating circumstances of whose case fall uncomfortably on the border-line
       between two of the existing partial defences.

    6. I also believe that this solution could be politically acceptable, even at a time
       when the simple abolition of the mandatory life sentence apparently is not. One of
       the justifications for the jury is that it lends a degree of “democratic legitimacy” to
       the criminal justice process, which appointed judges lack; and another is that
       juries are the mouthpiece of the community and the reflection, within criminal
       justice, of its standards, attitudes and behaviour. If the jury in the case decided
       that the murderer before them did not deserve the life sentence, I believe the


2
 Merle and Vitu, Traité de droit criminel, 4th ed 1981, §750.
3
 §§17-22, 606-608, 790 ss.2 and 42; discussed by Hart, Punishment and Responsibility (2nd ed, by Gardner,
2007), 62.


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        public (and the popular newspapers) would accept this, even if they would not
        accept such a decision from a judge.

    7. One objection to this solution is that it would be arbitrary, leaving too much
       discretion in the hands of the individual jury in the case.4 But in practice this is
       the situation already, since juries give no reasons for acquittals, and no appeal
       against their acquittal lies. They are already free to acquit a person accused of
       murder whom the law declares to be guilty, because they find the current law
       unreasonably severe – and their ability to provide this form of “jury equity” is
       widely regarded as important part of their function. In practice, juries do
       sometimes return manslaughter verdicts on persons who, as the law stands, are
       really guilty of the crime of murder; and the fact that a jury would almost
       certainly refuse to return a conviction for murder on a genuine mercy-killer means
       that, in reality, prosecutors usually accept a plea of guilty to manslaughter in this
       sort of case. Far from adding a new element of arbitrary discretion, I believe my
       solution would, to a large extent, just recognise officially what happens
       unofficially as the law stands now.

    8. The other obvious objection is that it would be “dangerous”, because a silly jury
       might find “extenuating circumstances” in a case where a life sentence was
       clearly necessary to affirm the law or to protect the public. But the effect of such a
       finding would only be to relieve the judge of the obligation to impose a life
       sentence, leaving him with a discretion as to what to do. And if in such a case the
       judge then imposed a manifestly inadequate sentence, the Attorney-General could
       refer the case to the Court of Appeal, for an appropriate sentence to be imposed.

    9. Although I do not think the package of measures contained in the Consultation
       Paper should form the basis of a Bill at all, in what follows I shall assume they
       will be, and in the rest of this response I comment individually on each of them.

    B. Proposed abolition and replacement of provocation

    10. Of the three proposals in the Consultation Paper, I think this one is by far the most
        unsatisfactory. In my view it is incoherent; it fails to achieve the objects that the
        Government has in mind; and it also has the potential to produce results that much
        of society would consider to be seriously unjust.

    11. Incoherence The defence of provocation, in its traditional form, was a notion that
        was and is coherent. It is based on the underlying notion that someone who,
        without premeditation, kills another person who has driven him to lose his temper
        by a piece of atrocious behaviour, deserves at least some degree of sympathy,
        even though he is clearly in the wrong. In the days of capital punishment such a
        killer should be “spared the rope”; and since the abolition of capital punishment,
        he should be also spared mandatory life imprisonment.

4
 This was the objection that the Lord Goddard made to the proposal of the Royal Commission on Capital
Punishment: see the previous note.


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12. There were judicial attempts to stretch the defence to cover other cases to which
    this reasoning does not apply, but which also engage a degree of sympathy: but
    for obvious reasons it has been difficult to extend it to cover, in particular,
    battered women who kill abusive husbands when they are not actually in the act
    of beating or verbally abusing them, and those who, without necessarily losing
    their tempers, resort to excessive force when trying to protect their persons or
    their property. With this in mind, the Law Commission proposed turning
    “provocation” into a double-barrelled defence, to apply either where the killer
    acted in response to “gross provocation … which caused the defendant to have a
    justifiable sense of being seriously wronged”, or “fear of serious violence”.

13. In my view, the Law Commission’s proposal was inept, because it involved shoe-
    horning into one single defence two groups of cases that are intrinsically different,
    so producing a structure that is incoherent. I believe the basic flaw in the structure
    was clearly shown by the fact that, in order to squeeze both groups of cases into
    the one defence, the Law Commission was driven to omit from the definition of
    their new-style provocation the requirement that the defendant should have “lost
    his self-control”. As the Law Commission were wrong to propose this solution, so
    the Government is wrong, in my view, to follow their suggestion.

14. Failure to achieve the intended object From what Ministers have said, one of the
    key objectives of the Government’s proposed reform is to ensure that, in future,
    “battered wives” who kill systematically abusive husbands, and do so at a
    moment when they are not actually in the act of beating them or threatening them,
    escape a murder conviction and the mandatory life sentence.

15. (At any rate, I get the impression that this is so. When at the “Stakeholders’
    Meeting” on 22 September we asked “Does the Government wish to bring within
    the scope of the new defence the battered woman who waits until her abusive
    husband is asleep and then blows his brains out?”, no clear answer was
    forthcoming. And I suspect that, in truth, Ministers are not entirely clear in their
    own minds about this, and that is why the Clauses in Annexe A are the muddle
    that they are.)

16. Assuming that I have understood the Government’s aim correctly, then the
    formula that it has adopted in Annexe A will not achieve it, because it reinstates
    the requirement that, in order for either part of the new composite defence to
    apply, the killing must have “resulted from D’s loss of self-control.” As Professor
    Leonard Leigh said in his response (a copy of which he has sent me) “What I do
    not quite see is how the loss of control itself can be other than sudden.” This “loss
    of self-control” requirement is obviously appropriate in the case of the defendant
    who has been provoked by the victim’s misbehaviour. But it is not appropriate for
    either the battered wife who kills in “cold blood”, or the person who resorts to
    excessive force in self-defence – assuming that we really wish to relieve either of
    them of a murder conviction, and a mandatory life sentence.



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17. Injustice The Government’s proposal would expressly put beyond the reach of the
    “provocation” limb of the new partial defence the person who loses self-control in
    response to the discovery of his or her partner’s sexual infidelity. This, I believe,
    has the potential for grave injustice.

18. It may be that certain Ministers really do believe that matrimonial infidelity is
    completely normal and that no one who is the victim of it has the right to be
    disturbed by it. But I am sure that their view, if this is what it is, is not generally
    shared. For most normal people, I believe that unfaithfulness by a supposedly
    committed sexual partner is liable to cause deep shock and hurt, and for some of
    them, quite likely to provoke explosive anger. It is outrageous, in my view, that
    the Government should promote legislation that says, where a person in this
    situation has lost their self-control and killed, they must be convicted of murder,
    and given a mandatory life sentence, even where (to quote the Draft Clause set
    out in Annexe A) the jury finds that “a person of D’s sex and age, with a normal
    degree of tolerance and self-restraint and in the circumstances of D, might have
    reacted in the same or in a similar way to D”.

19. If we accept the need for a partial defence to avoid applying the “murder” label
    and the mandatory life sentence to some of those who lost their self-control in the
    face of outrageous behaviour, the proper body to assess its limits is the jury, as
    reflecting the general morality of society, and not the Government, seeking to
    impose on society its own views of what is politically correct. This area of the law
    should not be used for “sending signals” – to use the phrase so often used to
    justify the promotion of legislation that serves no obvious practical purpose.

20. If we must go down the route of expressly excluding particular factual scenarios
    from the theoretical scope of the new defence, then it seems to me that it is
    particularly odd to exclude killings of unfaithful partners, without excluding a
    case that I believe the great majority of society would find much more worrying:
    namely “honour killings”.

21. And there is another problem. The Government’s proposed new defence would
    narrow the existing law not only by excluding cases where the defendant killed an
    unfaithful partner, but in other ways as well. For example, in Doughty (1986) 83
    CrAppR 319 the present defence of provocation was held to be potentially
    available to a parent who, an extremity of fatigue after being kept awake for many
    hours, briefly lost his temper with a baby and threw it down, with fatal
    consequences. The proposed new defence would not cover such a case as this,
    because the defendant would not be able to show that the he had “a justifiable
    sense of being wronged”, and in consequence such a defendant would receive a
    murder conviction, and a mandatory life sentence. (If anyone is tempted to
    respond “And so he should!”, I advise them to read Doughty in the Criminal
    Appeal Reports, and then ask themselves if they still think the same.)




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22. In short, I think the Government’s proposed new defence is such a mess that my
    advice is “Go back to the drawing-board”. I do not think the problems in this area
    can be cured by titivating the drafting of the clause set out in Annexe A, and I do
    not propose to try.

C. Proposed reformulation of the defence of diminished responsibility

23. Although this is less objectionable that the proposal about provocation, I think
    this proposal also has grave faults.

24. Verbosity The first point is that the draft clause set out in Annex B seems to be
    quite needlessly complex and long-winded. I believe that the re-write of Section 2
    of the Homicide Act 1957 proposed in Clause 1(1) of Annex B could be reframed
    in much simpler language, without changing the meaning.

25. The Government’s proposed Clause 1(1) says this:

   “(1) A person (P) who kills or is a party to the killing of another is not to be
   convicted of murder if P was suffering from a relevant mental impairment which
   provides an explanation for P’s acts and omissions in doing or being a party to
   the killing.

   (1A) “Relevant mental impairment” means an abnormality of mental functioning
   which
   (a) arises from a recognised medical condition and
   (b) substantially impairs P’s ability to do one or more of the following:
           (i) to understand the nature of P’s conduct; or
           (ii) to form a rational judgment; or
           (iii) to exercise self-control.

   (1B) For the purposes of subsection (1), a relevant mental impairment provides
   an explanation for P’s conduct if it causes, or is a significant contributory factor
   in causing the person to carry out that conduct.”

26. I believe the same effect could be achieved by a clause of the half the length that
    said just this:

   “A person who kills or is a party to the killing of another is not to be convicted of
   murder if he was suffering from a recognised medical condition which
   substantially impairs his ability to
   (i) understand the nature of his conduct; or
   (ii) to form a rational judgment; or
   (iii) to exercise self-control
   and which was a significant contributory factor in causing the person to act as he
   did.”.




                                                                                          6
      27. Pointlessness At the Stakeholders’ Meeting, we were told that the Government’s
          intention here is merely to rewrite section 2 of the Homicide Act 1957 in clearer
          language: it is not, so we are told, the aim of the Government alter its present
          scope. But if that is so, what is the point of the exercise? The scope of the present
          provision is known to lawyers and the courts, thanks to the case-law that has
          interpreted in the 51 years of its existence. Rewriting it in new language will
          inevitably produce a new crop of case-law, at the cost of judicial time and public
          money. And if the replacement provision is meant to cover exactly the same
          ground as the current one, no more and no less, what useful public purpose would
          this disruption serve? The game, surely, is not worth the candle.

      28. In my view, furthermore, trying to rewrite section 2 in clearer language is actually
          worse than useless, because I think the vagueness of the present section 2 is in
          truth a merit, rather than a defect. Personally I share the view, once expressed by
          the Scottish Law Commission,5 that diminished responsibility is really “a device
          to enable the courts to take account of a special category of mitigating
          circumstances in cases of murder.” The more tightly the statute that provides for it
          is drafted, the less effective it is as vehicle for enabling the mandatory life
          sentence to be avoided in cases where mitigating circumstances exist.

      29. Failure to achieve the Government’s intended purpose If the Government’s aim
          here is really to restate the current law, rather than to restrict the scope of the
          partial defence of diminished responsibility, I think that the Clause set out in
          Annex B do not achieve it – because it is at least arguable that it would actually
          reduce the scope of the partial defence. In the first place, the new defence would
          only apply where the defendant was suffering from “a recognised medical
          condition”, which to me looks potentially narrower than an “abnormality of mind
          (whether arising from a condition of arrested or retarded development of mind or
          any inherent causes or induced by disease or injury)”, which is what section 2 of
          the Homicide Act 1957 currently requires. Secondly, unlike the current provision,
          the Government’s Draft Clause would explicitly require the defendant to prove
          the existence of a causal link between his “medical condition” and the killing. The
          existence of a causal link between the defendant’s mental illness and his act is
          almost impossible to prove, and the most that can be shown is an association; a
          reality which, many years ago, induced the Butler Committee6 to propose that a
          defence of insanity should be available to any defendant who was suffering from
          severe mental illness at the time he committed the actus reus – without the
          necessity to show a causal link between the two.

      30. Here too are some further and more general points.

      31. The policy behind the Government’s proposal on diminished responsibility is
          wrong; the scope of the defence ought to be widened I believe that the scope of
          the current defence is too narrow, and that it should be extended to cover

5
    Quoted in Law Commission, No. 290 (Report on Partial Defences), §5.16.
6
    Report of the Committee on Mentally Abnormal Offencers, Cmnd. 6244, 1975.§18.26 onwards.


                                                                                               7
   “abnormal mental states” that do not arise from any of the matters listed in section
   2 of the Homicide Act in its current form: for example, people who were
   physically and mentally exhausted from overwork, disorientated by prolonged
   lack of sleep, or distracted by shock or grief. That people in these states are not
   really normal, and not to be judged a strictly as others, is reflected in a range of
   everyday sayings and expressions: “she was beside herself with grief”, “he was so
   tired he didn’t know what he was doing”. Even more to the point is the Jewish
   proverb, “Do not judge a man in his grief.”

32. The following real situations come to mind: the parent (e.g. Doughty) who has not
    slept for nights because of a crying baby; the spouse who, thinking s/he was
    happily married, discovers that the other spouse has been unfaithful for years and
    is about to leave with the lover – a situation which has sometimes led to the
    deserted parent killing their children and then committing suicide; or a parent who
    learns that the children have all been killed in an accident. Prolonged deprivation
    of sleep can produce psychological effects that can cause people to act strangely
    and out of character – and so, I believe, can extreme shock and grief.

33. At present, some of these cases squeeze uneasily into the partial defence of
    provocation, and some are squeezed uneasily into diminished responsibility. The
    combined effect of the Government’s current proposal on provocation, plus its
    current proposal on diminished responsibility, would be that the cases mentioned
    in the two preceding paragraphs would in future attract a conviction for murder,
    plus the inevitable mandatory life sentence: at any rate, if juries applied the letter
    of the law.

34. “Developmental immaturity”: the problem of juveniles The Government has
    rejected the Law Commission’s proposal that, if diminished responsibility is
    revised, the new form should expressly include “developmental immaturity in a
    defendant under the age of 18”. Insofar as the phrase “developmental immaturity”
    means “the defendant’s mental age was significantly below his physical age”, I
    think the Government was right. A psychiatrist and a psychologist told us at the
    Stakeholders’ Meeting that a person who is “developmentally immature” in this
    sense would be seen as suffering from a “recognized medical condition” – and
    hence is already catered for.

35. But surely there is a real problem in allowing a man aged 40 with a mental age of
    10 a partial defence of diminished responsibility because his developmental
    immaturity amounts to a “recognized medical condition” which (to quote
    Appendix B, Clause 1) substantially impairs his ability to “understand the nature
    of his conduct, to form a rational judgment, or to exercise self control”- when no
    equivalent allowance is made for a person with a mental age of 10 who is actually
    a child of 10: and who will, in consequence, be convicted of murder. For
    centuries, the “doli incapax” rule provided some protection for juvenile
    defendants in this situation; to the extent, indeed, of giving some children who
    intentionally kill an outright acquittal. But the abolition of “doli incapax” in 1998



                                                                                             8
   leaves the child of 10 who intentionally kills, failing to appreciate that his act was
   wrong, without even as much as a partial defence. To me, this seems grossly
   unfair – and I believe a reform of diminished responsibility ought to take account
   of this.

36. The significance of the label: diminished responsibility should displace the
    mandatory life sentence – but should it also mean a conviction for manslaughter
    rather than for murder? At the Stakeholder’s Meeting, a person speaking for the
    parents of murdered children told us that, when a relative is intentionally and
    brutally killed by some defendant who is half-deranged, the family finds it
    difficult to accept that the killer’s crime is then publicly identified as a
    “manslaughter” rather than a “murder”. This reaction is, I think, entirely
    understandable. Under the Law Commission’s scheme, the effect of the defence
    of diminished responsibility would be to reduce first degree murder to second
    degree murder, and not (as now) to reduce murder to manslaughter; and so this
    point would have been met. If the Government insists on changing the law
    relating to partial defences without enacting the rest of the Law Commission’s
    integrated scheme, I think it should consider changing the legal effect of the
    partial defence of diminished responsibility – so that in future it would displace
    the mandatory life sentence, but not the title of the offence.

D. Proposed reform of the law relating to secondary parties in murder

37. Unlike the Government’s proposals on provocation and diminished responsibility,
    I think its proposals on secondary parties are commendable in the sense that they
    would, in principle, actually make this area of the law more just. However, as a
    number of us pointed out at the Stakeholders’ Meeting, making changes in the law
    of secondary parties with respect to the crime of murder, but not other offences,
    has the potential to cause grave practical difficulties. As my Cambridge colleague
    Ms Jo Miles says in her response:

           The most important point here is that changing the law of complicity as it
           applies to one offence or set of offences (homicide) can only make even
           harder (if not impossible) the already mountainous challenge faced by trial
           judges directing juries in this complex area. Imagine a commonplace
           indictment relating to a burglary which went horribly wrong, which carries
           both homicide and non-fatal charges, and potentially both accomplice and
           inchoate liability in respect of each (the latter including the new and
           impenetrable Serious Crime Act 2008, Part II). How is the jury to be
           expected to comprehend and retain, never mind apply, the huge variety of
           rules that will be presented to it, with confusingly different tests for
           determining the same form of liability (complicity) depending on whether
           the charge is one of homicide or burglary?

           It is not clear what advantage is expected to accrue from reforming the law
           of complicity as it applies to murder before more wholesale reform of



                                                                                         9
                   complicity is undertaken, as is apparently intended.7 Are the problems
                   with the current law as it applies in murder cases so acute that immediate
                   reform in this area is needed, given the ghastly confusion that will surely
                   ensue from taking this step? It is not obvious that the balance of costs and
                   benefits weighs in favour of the proposed piecemeal approach. This issue
                   is not considered in your impact assessment.

      38. Is there any part of these proposals which are “detachable”, in the sense that they
          could safely be enacted now, without giving rise to the difficulties mentioned in
          the previous paragraph? I believe there is one, and that is the proposal contained
          in Clause 4 of Annex C. This is the proposal to reverse what might be called the
          “Van Hoogstraten rule”8: the rule that where D1 incites D2 to give V a beating,
          and D2 “goes over the top” and deliberately kills V, D1 escapes not only liability
          for murder, but also for manslaughter – which seems very odd, given that D1
          would be guilty of constructive manslaughter if D2 had given V the beating D1
          envisaged, and in the course of it V had died of a heart attack, or as a result of
          falling and hitting his head against the kerb.

      39. With that in mind, I think it would be right for the Government to proceed with
          that part of its proposed reform. But I think Clause 4 of Annex C is much more
          complicated than is necessary to achieve it, and I think that a better and simpler
          form of words would be the following:

                   Where two or more persons participate in a joint venture, and one of them
                   commits the offence of murder in the context of the venture, another
                   participant is guilty of the offence of manslaughter if he foresaw, or as a
                   reasonable person ought to have foreseen, that in the context of the
                   venture another person might be caused injury or put in fear of harm.

      40. On the other hand, I think that the enactment of Clauses 1, 2 and 3 of Appendix C
          would potentially cause difficult problems where other offences in addition to
          murder were involved, and for this reason it would be undesirable to proceed with
          them. However, in case the Government is determined to do so, here are some
          comments on the drafting.

      41. Clauses 1 and 2 I think these are clearly drafted, and would achieve the result the
          Government desires. However, I think the titles of both of them are needlessly
          confusing – particularly in the light of the new inchoate offences of “assisting or
          encouraging” created by Part II of the Serious Crime Act 2007, because these
          titles initially make the reader think that the clauses are intended to create new
          inchoate offences, instead of regulating “secondary party liability” in murder. I
          think Clause 1 should be entitled “Liability for murder as a secondary party” and
          Clause 2 should be entitled “Liability of a secondary party for murder where the
          principal offender commits manslaughter”. And for the same reason I think the

7
    CP, para 78.
8
    See Attorney-General's Reference (No.3 of 2004), [2005] EWCA Crim 1882; [2006] CrimLR 63.


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          general title should be “accomplice liability”, rather than “assisting or
          encouraging”.

      42. Clause 3 “Murder in the context of a joint venture” I share the Government’s
          view that the “fundamental difference” rule enunciated by the House of Lords in
          Powell and English is overcomplicated, and too generous to defendants, and in
          principle I think it is right to reverse it. However, I think that Clause 3 is itself too
          complicated, and the distinctions that it seeks to make are too refined. I believe
          the job could be done better and more simply by replacing 3(1) – 3(4) by the
          following:

                  Where two or more persons participate in a joint criminal venture, and one
                  of them commits the offence of murder in the context of the venture,
                  another participant is guilty of the offence of murder if he foresaw that any
                  of the others might in the context of the venture cause death with intent to
                  kill, or might (by whatever means) intentionally cause another person
                  grievous bodily harm.

      43. However, I am uneasy about fact that, although Clause 3 makes so much depend
          on the existence or otherwise of a “joint venture”, there is no definition anywhere
          of what a “joint venture” is – except for the suggestion in Clause 3(5) – and later
          in Clause 4(4) – that one can exist “whether or not there is an express agreement”.
          I can see the justice of fixing with liability for all the foreseen consequences those
          persons who take part, by agreement, in a joint venture that is pre-planned: for
          example, a burglary, or a robbery. But I do not see the justice of applying such an
          extensive rule in a case where a group of people happen to be together, some of
          them spontaneously start to commit a crime, and the other members of the group
          remain to watch.9 If the “joint enterprise” rule applied where a murder was
          committed in this type of situation too, it would go a long way to negative the
          narrower rule applicable to “ordinary secondary parties” which the Government
          seeks to lay down in Clause 1. I think we need a definition of “joint enterprise”,
          and one which states that there is only a “joint enterprise” where two or more
          people have, at some stage before the murder is committed, agreed on the
          commission of some other criminal offence.

      44. A final point about these provisions on accomplices: do we really need Clauses 7,
          8, and 10? The rules they contain are ones which I am sure the courts would
          imply, even if these clauses were not there, and I do not think it is necessary to
          laboriously spell them out.




9
    For a good example, see R v DJ, JT, LJ, AB and DD [2007] EWCA Crim 3133.


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