Authored By: Charlie Smith
Imagine two defendants. Defendant A intends to kill their victim. Defendant B intends to cause their victim really serious injury, but does not intend for them to die. In both instances, the victim dies. Should the criminal law give both defendants the same label?
Murder is one of the most serious offences in England and Wales, and is not currently divided into degrees. A key element of murder is mens rea, but this can fall into either intent to kill or intent to cause grievous bodily harm. This has generated longstanding criticism as to whether offenders with different intentions should receive the same offence label. Currently, the Law Commission is proposing a ‘major overhaul of homicide offences’ and there is a consultation exploring future options for criminal law in England and Wales.
This raises the central question discussed in this article: Should England and Wales distinguish first and second-degree murder according to the defendant’s intention? Distinguishing defendants according to intention could improve clarity of homicide law and perception of justice, particularly through culpability and fair labelling. However, whether degrees of murder actually improve the law depends on whether reform creates clearer and more defensible boundaries than those currently in place. This article will examine the current law and proposed changes, considering both benefits and drawbacks. It argues that degrees are justified by fair labelling, but only if second-degree murder is able to communicate a clear difference in culpability.
What currently amounts to murder?
According to the Crown Prosecution Service, ‘murder is committed where a person of sound mind and discretion unlawfully kills a human being with intent to kill or cause grievous bodily harm.’ To be classed as murder, the offence also needs to be shown to have occurred under the King’s Peace. All of these requirements must be satisfied for a killing to be classed as murder. If a partial defence is accepted (such as loss of control, diminished responsibility or a suicide pact) a person’s murder conviction may be reduced to voluntary manslaughter instead.
A conviction for murder does not require an intention to kill. Case law has established that intention to cause GBH also counts as murder. In the case of R. v Cunningham (Anthony Barry), the House of Lords held that ‘where a person unlawfully kills another intending only to cause him grievous bodily harm, he is nonetheless guilty of murder.’ But should these differences in intent lead to different classes of offence?
Anyone who is convicted of murder must be given a mandatory life sentence. However, the period that must be served before the offender becomes eligible to be considered for release on licence will vary on a case-by-case basis. The minimum term served for murder will be based on guidance from Schedule 21 of the Sentencing Code, which considers aggravating and mitigating factors relating to the offence. As a result, existing sentencing law already has the capacity to distinguish between different levels of seriousness and culpability.
However, the life sentence still stands, and sentencing differentiation does not alter the offence of conviction. The law describes both defendants as guilty of murder, despite differing intent. So if sentencing already differentiates between levels of seriousness, should differences in culpability also be reflected in the conviction itself?
What is wrong with the current law?
Is intending to cause serious injury to someone morally equivalent to intending to kill them? To be convicted of murder, a defendant intended to cause grave harm or death and unlawfully caused death. This means that even if the intention is only to cause serious injury, the defendant has deliberately chosen to cause extensive harm through violence. If the victim subsequently dies, perhaps that offender possesses sufficient culpability to justify the label of murder, even though death was not their purpose. But whilst both states of mind may demonstrate substantial culpability, that does not necessarily mean they demonstrate equal culpability.
An alternative approach is to focus on the extent of harm caused rather than differences in the defendant’s intention. Whilst some may argue that murder always results in the same extent of harm, is that really the case? Regardless of intent, the physical harm (death of the victim) is equivalent. But, the differences in intent may affect psychological harm for relatives and friends, complicating bereavement. If a relative is aware that a defendant deliberately killed the victim, this knowledge of the circumstances and intentionality surrounding a killing may affect the bereavement experience. By classifying murder into different degrees, perhaps the offence would better reflect the extent of harm caused to bereaved families. However, other circumstances, such as causing excessive suffering before death, could affect psychological impacts on the victim’s relatives. This means that intention alone does not determine the extent of harm caused. Therefore, classifying murder by degrees based on intention may not accurately correspond to differences in the wider harm caused.
A further criticism of the current law relates to that of fair labelling. Fair labelling was a concept introduced by Andrew Ashworth and Glanville Williams, who believed that ‘the label applied to an offence ought fairly to represent the offender’s wrongdoing.’ The label attached to an offence communicates the nature and seriousness of wrongdoing, which may alter the perception of the offender to victims, the public and the criminal justice system. If criminal culpability partly reflects the defendant’s state of mind, then distinguishing between an intention to kill and an intention to cause serious injury may communicate more precisely the nature of the wrongdoing. Therefore, does calling both defendants ‘murderers’ accurately convey what each defendant intended?
Schedule 21 of the Sentencing Code already differentiates minimum terms for murderers, considering factors such as the circumstances and seriousness of the offence. This could mean that the public label of ‘murder’ may be appropriate, provided that sentencing adequately reflects differences in culpability. But, sentencing and offence labelling serve different functions. Therefore, a different minimum term may recognise different culpability without addressing whether the same offence label accurately describes both offenders. If the principal weakness is therefore not an inability to differentiate punishment, but an inability to differentiate the offence itself, the question becomes whether dividing murder into degrees offers a better solution.
What is the Law Commission proposing?
The Law Commission held a review of homicide law in the early 2000s, showing longstanding concerns about the structure and operation of homicide law. However, the Government did not implement the recommendations, believing that the time was not right. Since then, the broad structure of homicide offences has not been reformed and more issues have arisen, such as ‘modern understanding of the effects of domestic abuse.’ These continuing and emerging concerns prompted the current review.
The proposed homicide hierarchy set out by the Law Commission would have three tiers, representing differing culpability. The current offence of murder would be split into first-degree and second-degree murder. First-degree murder would be classed as the first tier, which is the most serious form of offending and requires an intention to kill. Second-degree murder would require an intention to cause serious injury. However, it could also include those with an intent to kill. Under current circumstances, these defendants would have their conviction reduced to voluntary manslaughter, as a result of a partial defence. Therefore, the hierarchy is not based solely on whether an intention to kill existed, as second-degree murder considers more than one type of culpability. Manslaughter would form the third tier, which would remain a distinct offence from murder, considering death due to recklessness, gross negligence or unlawful dangerous acts. This means the proposal would shift homicide law away from a single murder offence that encompasses different states of mind, towards a hierarchy in which the conviction more explicitly reflects differences in culpability.
The proposed system would have an effect on sentencing, with only defendants convicted of first-degree murder being given a mandatory life sentence. For second-degree murder offences, judges would have greater sentencing discretion, giving more flexibility on whether to impose a life sentence. Therefore, the proposed reform aims to make culpability relevant not only when determining sentences, but also when determining the conviction itself. So if classification is the problem, would degrees provide a better solution?
Would degrees of murder better reflect culpability?
Having degrees of murder would potentially result in fairer labelling, as this would allow the conviction itself to distinguish culpability. The hierarchical system potentially distinguishes intention to kill from intention to cause serious injury, thus affecting the label of the offence. This means that sentencing would no longer bear the entire burden of differentiation. Having a separate offence based partly on intent may increase hierarchical accuracy, as ‘first-degree’ communicates greater legal seriousness than ‘second-degree.’ This allows for a potential increase in legal consistency and clarity.
Different degrees of murder could reflect proportionality through sentencing. However, what happens if a defendant intentionally inflicts horrific injuries but remains indifferent to whether the victim survives? With the new classification system, this defendant would be convicted of second-degree murder. This has the potential to result in a lower starting sentence than that of a person who aimed to intentionally kill, though this is still up for debate, as the Law Commission’s consultation paper does not propose specific sentencing starting points. Regardless of the starting sentence, a defendant who intends to kill is not necessarily more culpable than someone who intends catastrophic injury. Circumstances, motivation, vulnerability, degree of violence, premeditation and other factors could all matter to culpability, meaning offence classification would not eliminate the need for personalised sentencing. Ultimately, degrees may improve proportionality generally, but judicial discretion would remain important to ensure an appropriately proportionate sentence on a case-by-case basis.
Introducing degrees of murder could help to clarify homicide law, with the proposed hierarchy potentially making different levels of culpability more visible in the offence structure. The three clearly identified tiers would likely improve the structure of the law. This could better reflect culpability through attempts to order offences according to blame. However, this does not necessarily result in easier methods for courts to apply the distinctions. For example, second-degree murder covers more than just intended serious injury; it can also include those who intended to kill but established a partial defence. This would mean that degree classification would not necessarily represent intent or culpability. Therefore, a hierarchy may make the law more structured without necessarily making it simpler.
Some jurisdictions already differentiate homicide offences into different degrees of murder. In Missouri, degrees of murder may be considered necessary to the justice system, as conviction of first-degree murder can result in the death sentence. Unlike the United States, England and Wales do not use the death penalty. Instead, all sentences for murder involve imprisonment, meaning severity of punishment is more uniform. This raises the question of whether dividing murder into degrees would actually produce clearer labels and guidance in practice.
Would reform create new problems?
With the proposed system, the determination of intention has the potential to have greater consequences. Intention concerns the defendant’s state of mind and therefore generally has to be inferred from the surrounding evidence. This means that where the prosecution cannot prove intention to kill beyond reasonable doubt, liability may fall within the lower degree. Therefore, although courts already focus on intention in murder cases, the finding would have greater consequences for offence classification. In order to help distinguish the different degrees of murder, it may be necessary to have clearer guidance, supporting consistent application of the distinction. Circumstances before, during and after the killing may provide evidence from which intention can be inferred, without necessarily establishing whether the defendant intended death or serious injury.
Adding another homicide offence may simplify the law, but alternatively, it may just establish another boundary. Currently, homicide offences are classified into murder and manslaughter. Splitting murder charges into first-degree and second-degree murder has the potential to be fairer, addressing existing concerns about the distinction between different levels of culpability. But equally, this split may add more precise boundaries without creating simpler law. Whilst all classification systems require boundaries, these must be carefully considered to ensure they serve an appropriate purpose. Additional offence boundaries may increase disputes about charging decisions, jury directions and the precise mental state established by the evidence. Therefore, if reform replaces one contested boundary with another, greater structural precision may not result in greater simplicity.
Another reason why reform may not be appropriate is that Schedule 21 means sentencing already has the capacity to reflect differences in the seriousness and circumstances of murder. It may be more practical to update current sentencing guidance, rather than reform the law more drastically by introducing murder degrees. If fairer punishment is the key objective, sentencing reform may be enough. However, when aiming for fairer labelling or classification according to culpability, sentencing reform is unlikely to be sufficient. Retaining the current charge of murder whilst reforming sentencing would preserve existing definitions and result in less structural disruption. However, reforming sentencing alone would leave some of the identified problems untouched.
Although sentencing reform could improve proportionality of punishment, it would not necessarily resolve fair labelling, as both defendants would still be convicted of murder. Introducing degrees may appear to address this problem by distinguishing levels of legal seriousness. However, ‘second-degree murder’ would encompass different routes to liability, including defendants who intended serious injury and those who intended to kill but successfully established a partial defence. These different routes of liability mean that the label may still not accurately reflect a particular level of culpability, potentially creating confusion. As mentioned previously, offence labelling may increase hierarchical accuracy, as ‘first-degree’ seems more serious than ‘second-degree.’ But it may fail to address descriptive accuracy, as the label may not reflect what the defendant intended. Therefore, adding degrees may create an appearance of precision, without clearly communicating the underlying mental state of the defendant.
Culpability does not necessarily fall into neat categories, but may instead exist on a spectrum. If this is the case, dividing murder into two categories may not adequately reflect the full spectrum. For example, culpability may differ between an intentional and premeditated killing, an intentional killing involving substantially reduced culpability, an exceptionally brutal killing committed with intent to cause GBH, and a less serious GBH-intent killing resulting in death. Therefore, relative culpability may not neatly correspond to two boxes, resulting in oversimplification. However, this is true of criminal offences generally, because the law has to draw boundaries somewhere. So whilst degrees of murder would be unable to capture every variation in culpability, it is worth considering whether two degrees would provide a more accurate approximation of culpability than the current single murder offence.
Conclusion
So should England and Wales introduce degrees of murder? Probably. Although reform would not resolve every problem with the current offence, and may create new difficulties of its own, the benefits marginally outweigh the costs.
The argument that bears the most weight is that the current single offence of murder inadequately distinguishes culpability at the level of conviction. Sentencing differentiation can recognise differences in seriousness and culpability when determining punishment, but defendants with different intentions still receive the same offence label. Degrees of murder could therefore allow differences in culpability to be reflected in the conviction itself, rather than solely through the eventual sentence.
Ultimately, degrees are not a perfect solution. The proposal still needs further clarification to ensure the boundary between the proposed degrees is sufficiently clear and workable. The label of second-degree murder must also communicate a meaningful distinction in culpability if reform is to improve fair labelling. Judicial sentencing discretion would also remain necessary, because culpability will continue to exist on a spectrum.
Returning to the opening scenario, Defendant A and Defendant B are both highly culpable, and both have unlawfully caused death. But they did not intend the same outcome. If criminal offence labels are intended to reflect culpability, the law should be capable of recognising that distinction. Degrees of murder may not capture every difference between offenders, but they would arguably capture this one more accurately than the law currently does.
