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Last Updated: Tuesday, 20 December 2005, 14:26 GMT
Law causes 'damaging confusion'

By Jon Silverman
Legal affairs analyst

The Law Commission's celebrated description of the law of murder as "a mess" erred on the generous side.

It is a law which generates damaging confusion and has led to public misconception.

For example, it is widely believed that murder has to be either an intentional killing or a premeditated one.

Neither is true.

It is sufficient to prove that serious harm was intended - even if nobody could have foreseen that the harm would cause death, such as where a victim has received inadequate medical treatment.

Under the Law Commission's proposals, that example would fall unequivocally under the label of manslaughter. But far more contentious is the plan to create two degrees of murder.

In a nutshell, where should the line be drawn between them?

Domestic violence

The charge of first degree murder would be confined to those cases where there was an intention to kill. It would be irrelevant whether premeditation was a factor.

Conviction would result in a mandatory life sentence.

Lyn Costello, of the campaigning group Mothers Against Murder, Manslaughter and Aggression, said: "That sentence should be 30 years so that if a jury convicted, the family of a victim would have the satisfaction of knowing it adequately reflected the gravity of the crime."

But if the defendant can successfully argue provocation, diminished responsibility, or that he or she acted under duress, the charge would become second degree murder, attracting a discretionary life sentence.

The mandatory life sentence for murder is non-negotiable for the government.

Some cases of domestic violence leading to death would undoubtedly fall into this category. An intention to inflict serious harm but not to kill would be convicted as second degree murder.

So would an offence of reckless indifference to causing death. For example, if someone pushed a large object from a motorway bridge, causing a fatal accident, that act could be dealt with as murder rather than, as invariably happens now, manslaughter.

Such a change has the considerable advantage of giving more latitude to the jury and removing the need for judges to make decisions about downgrading a murder charge to manslaughter.

The current law will not be changed until the Home Office has completed its own review late next year. This will consider the public policy implications of any changes.

One thing is already clear. The mandatory life sentence for murder is non-negotiable for the government.

A sustained media campaign against a reclassification of murder which, in some quarters, will be perceived as "soft" may also undermine the cause of reform.

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