Getting away with murder

Something shortly to appear on Halsbury's Law Exchange

More than 40 years ago the then Labour MP Leslie Hale spoke in the House of Commons of “the constitution of the nation, the liberties of the people and a system of justice that, with all its faults, is the envy of the world.”

Today that sort of patriotic endorsement of English law is not so easily found amongst the great and the good. Instead there seems to be a perpetual fear that others might do things better than us, and so must be aped wherever possible.

Latest in this line of followers rather than leaders is the DPP, Kier Starmer. According to this morning’s Telegraph, he has joined with Ken Clarke, the Justice Secretary, in support of a Law Commission report arguing that we should redefine the most important of all criminal acts – murder.

Mr Starmer et al think that the offence might be better rewritten along American lines, so that rather than murder and manslaughter, we would have the first and second degree classifications of murder familiar to all viewers of American cops and robbers’ television programmes.

No doubt the Law Commission’s study was of the appropriate standard of erudition and its recommendations entirely earnest and well-meaning. But there is – or should be – a prior question asked by every prospective law reformer of every prospective law reform, namely is the reform actually necessary?

To sweep aside a definition of murder that is many generations old and replace it with something different is not a step to be taken lightly. It is a dimly narrow view of the law that sees criminal justice as nothing more than a set of rules to be tinkered with as and how the government of the day chooses.

Murder is not simply another offence in another statute or another set of common law rules. It is a concept with the highest resonance giving rise to the highest passion amongst the general public, even if it is inevitably imperfectly understood by them. Changing the definition to that of another culture isn’t something akin to tidying up the degree of knowledge required for liability as a constructive trustee or revising directors’ duties.

Politicians like to leave their mark on society, but that in itself is the worst possible motivation for a change in the law.

There is a second prior question – whether the proposed change is of sufficient importance that it should go to the top of the list of what public funds and other resources ought to be expended upon. It seems improbable that the proposed murder reform would pass that test; the present system allows for considerable flexibility in the form of sentencing and it is therefore far from clear that there is a pressing need for reform in that respect.

It wouldn’t have been a surprise to find the previous government cheerfully junking an age-old legal concept and replacing it with another of its personal fancy, especially not in the field of crime. In 1948, 700 pages in Halsbury’s Statutes were taken up with the criminal law. By 1998 that figure had risen to 2,700. Then the government gathered a proper head of steam, hitting 4,700 pages by 2008 and at the end of their tenure in 2010 nearly managing to hike it to 6,000.

That sort of increase is totally inconsistent with the rule of law, which requires the law to be stable and knowable in advance. It would take a fairly dedicated criminal practitioner to keep on top of all those new provisions and all relevant cases which have considered them. Worse still, the quality of some of the legislative reforms was, to say the least, less than satisfactory. The highest court in the land had this to say about one example:

"The road to hell is paved with good intentions. In this case the good intentions were to introduce mandatory rehabilitation for very short term prisoners by coupling time spent in custody with a release period under licence. This was known as “custody plus”. Hell is a fair description of the problem of statutory interpretation caused by transitional provisions introduced when custody plus had to be put on hold because the resources needed to implement the scheme did not exist. The problem arises when sentences of less than 12 months and more than 12 months are imposed consecutively."

R (on the application of Noone) v The Governor of HMP Drake Hall and another [2010] UKSC 30 at para [1] per Lord Phillips.

One would have thought that after that deluge the present government might have seen fit to take a breath. Or maybe they surveyed the wreckage and decided that maybe there wasn’t so much to be proud of anymore, and that others really did do things better elsewhere.