Journal of Criminal Law and Criminology

Volume 49 | Issue 6 Article 1

1959

The English Homicide Act of 1957: The CapitalPunishment Issue, and Various Reforms in the Lawof Murder and ManslaughterGraham Hughes

Follow this and additional works at: https://scholarlycommons.law.northwestern.edu/jclc

Part of the Criminal Law Commons, Criminology Commons, and the Criminology and CriminalJustice Commons

This Article is brought to you for free and open access by Northwestern University School of Law Scholarly Commons. It has been accepted forinclusion in Journal of Criminal Law and Criminology by an authorized editor of Northwestern University School of Law Scholarly Commons.

Recommended CitationGraham Hughes, The English Homicide Act of 1957: The Capital Punishment Issue, and Various Reforms in the Law of Murder andManslaughter, 49 J. Crim. L. Criminology & Police Sci. 521 (1958-1959)

The Journal of

CRIMINAL LAW, CRIMINOLOGY, AND POLICE SCIENCE

VOL 49 MARCH-APRIL 1959 NO. 6

THE ENGLISH HOMICIDE ACT OF 1957

The Capital Punishment Issue, and Various Reforms in the Law ofMurder and Manslaughter

GRAHAM HUGHES

The author read law at the Universities of Cambridge and Wales and was from 1950-1956 Lecturerin Law at the University of Hull. From 1956-1958 he was Visiting Assistant Professor at the Yale LawSchool and is at present a Senior Fellow in the Yale Law School. Mr. Hughes has published in thelaw journals of England, Canada and the United States-EDITOR.

England, where a new Homicide Act' has justbeen passed, has a reputation for splendid murders.Out of its mild, damp climate has sprung a crop ofcelebrated killers, peculiarly horrifying in theirdepravity. When such raw material is fed into themagnificent process of the English criminal trial itis very natural that the English murder shouldhave acquired an international audience. But

- never has there been such a pitch of public interestin homicide as in the last ten years in Britain. Onereason for this has been the concentration ofhideously sensational killings-the convictions andexecutions of Heath, the sexual killer; Haigh, whokilled for money and dissolved his victims in anacid bath; Christie, who with his mild manner butinexorable purpose made a long career of murder-ing lonely women; and the psychopath, Straffen,who escaped from a criminal lunatic asylum andkilled a child. Then there have been the feverishbut unsuccessful agitations for a reprieve fromexecution for the youthful robber, Bentley, and forthe tormented Mrs. Ellis who in a paroxysm ofjealousy shot her lover dead. The executions ofBentley and Mrs. Ellis, together with the dis-covery that it was, to say the least, possible thatChristi& had committed a murder for whichanother man had earlier been hanged2 sent a wave

15 & 6 Eliz. 2, c. 11. General Discussions of thenew statute are to be found in ARMITAGE, The HomicideAct, 1957, CAMBRIDGE L. J. (1957) 183; ELLIOTT, TheHomicide Act, 1957, CRIMINAL L. REv. (1957) 282;FIELD FISHER, The Homicide Bill, 106 F. J. 788 (1956);HALL WILLIAMS, The Homicide Bill 9, HOWARD JOURNAL285 (1957); HAL. WILLIAMS, Legislation: The HomicideA c, 1957, 20 MODERN L. REv. 381 (1957); PREVEZER,The English Homicide Act: A New Attempt to Revisethe Law of Murder, 57 COLUm. L. REv. 624 (1957).

2-See EDDOWES, THE MAN ON YOUR CONSCIENCE(1955).

521

of uneasiness through the British public about theoperation of the death penalty.

Side by side with this surfeit of slayings therehave been continuous agitation and two unsuc-cessful attempts by the House of Commons to abol-ish capital punishment. In 1948, the Labor major-ity in the House, acting against the advice of itscabinet, included a measure for the abolition ofcapital punishment in the Criminal Justice Act.3

The House of Lords, exercising its constitutionalprivilege, vetoed that clause, but for a few months,before the Lords' veto was pronounced, thecapital sentence was in fact not executed in Eng-land. The constitutional embarrassment createdby this lordly evasion of the vote of the popularassembly was glossed over by the Government'sappointing the Royal Commission on CapitalPunishment, which produced in 1953 its brilliantand now celebrated Report.4 The mandate of theRoyal Commission had expressly confined its juris-diction to review of the possibilities of modifyingthe law of murder with respect to the liability tosuffer the death penalty. The Commission tookthis to mean that they were precluded from afrank expression of opinion on the merits of totalabolition,5 but most critics have viewed the vastbody of evidence assembled and the luminous dis-cussions offered by the Commission as indicatingthat there is no convincing proof of the effective-ness of capital punishment as a deterrent tohomicide. In any event a Government motion in1956 for the retention of the death penalty was

11 & 12 Geo. 6, c. 58.4 REPORT OF THE ROYAL COMMISSION ON CAPITAL

PUNISHKMENT 1949-1953, Cmd. 8932. hereafter re-ferred to as REPORT OF THE R. C.C.P.

5 REPORT OF THE R. C.C.P., par. 13.

GRAHAM HUGHES

surprisingly defeated in the House of Commons,6

now with a Conservative majority, and this wasfollowed later in the year by the successful passagein the Commons of a private member's bill, intro-duced by Mr. Silverman, for the abolition ofcapital punishment for homicide. 7

Once again the Lords vetoed the bill, exercisingtheir undoubtedly lawful powers of delay andobstruction in a way which scandalized a largesection of public opinion. The twice expressed willof the popularly elected Commons could not forlong be flouted in this way. The most proper solu-tion would have been for the Government to havegiven time in the Commons for the reintroductionof the abolition bill, thus nullifying the Lords'veto which can be overturned by such a proceeding.This the Government would not do but insteadintroduced a compromise bill, limiting capitalpunishment in effect to six special cases of murder.It was this bill which became law in March, 1957,as the Homicide Act.

SCOPE OF THE ACT

The half-way measure in the new Act with re-spect to capital punishment is a compromise thatcannot fully please either the convinced retention-ist or the passionate abolitionist. It is a compro-mise that may indeed in the next few years beswept away by total abolition. But the importanceof the Act goes far beyond this temporary truce.For the new Act joins with the restriction of thedeath penalty the passage of several importantreforms in the law of murder which had been thesubject of discussion by the Royal Commission onCapital Punishment.

The conceptual nature of the crime of murderis a subject that cannot be profitably debatedwithout constant reference to the penalty. Therecan be no doubt that it was the inexorably openarms of death waiting to receive the convictedmurderer that gave such passionate bitterness tothe attacks on the law of homicide in England.8

Although for purposes of exposition the portionsof the Act dealing with reforms in the substantivelaw of murder must be severed from the sectionsdealing with the restriction of the death penalty, aconstant mental cross-reference will be necessaryto appreciate the full impact of the new legislation.

584 HousE OF CoMMoNs DEBATES 2536, 2655.1 The history of these matters is given more fully

by PREVEZER op. Cit. supra note 1.8See e.g. KOESTLER, REFLECTIONS ON HANGING

(1957).

FELONY -M1-RDER

§ I (1). Where a person kills another in thecourse or furtherance of some other offence,the killing shall not amount to murder unlessdone with the same malice aforethought(express or implied) as is required for a killingto amount to murder when not done in thecourse or furtherance of another offence.

§ 1 (2). For the purposes of the foregoingsubsection, a killing done in the course or forthe purpose of resisting an officer of justice,or of resisting or avoiding or preventing a law-ful arrest, or of effecting or assisting anescape or rescue from legal custody, shall betreated as a killing in the course or furtheranceof an offence.This section is, of course, designed to abolish the

felony murder rule as it operated in England.Before the Homicide Act the scope of the felonymurder rule was not entirely clear in England. Itwas commonly said that it did not apply to killingsor deaths caused in the course of the commissionof any felony, but only to deaths in the course offelonies of violence.9 But the significance of violencehere was obscure. It was thought to mean that thefelony must be one which by its very nature in-volved violence to the person, as rape, but thisview was discredited by the then Lord Chief jus-tice, Lord Goddard, who was willing to apply therule to a case of larceny in a dwelling house. 10 As amatter of fact, however, the rule had little cur-rency in England outside cases in which therewas an actual use of violence in the perpetra-tion of a felony, its operative effect being to im-pose liability for murder where death ensued afterthe use of such violence as might not be sufficientto show the malice demanded in cases where therewas no involvement in a felony. The rule was thusin England little more than a useful auxiliaryweapon, invoked in cases where there was an ac-tual use of violence but -where an intention to kill orcause grievous bodily harm could not be proved be-yond a reasonable doubt. One might go further thanthis and say that the cases in which the felony mur-der rule operated to secure a conviction where theverdict must have been different in the absence ofthe rule were very few indeed.

Occasionally the harsh case came up. Thestrongest example of the rule in operation in Eng-

9 REPORT ON THE R.C.C.P., pars. 80-90.

10 REPORT Or Tix R.C.C.P. par. 100 and Reg. v.Grant 38 Cam. APP. REP. 107 (1954).

[Vol. 49

THE ENGLISH HOMICIDE ACT

land is perhaps the case of Jarmaih in 1945.uThere the defendant had held up the cashier of afilling station at the point of a gun. The gun wentoff and the cashier was killed. The accused's storywas that the gun had gone off accidentally whilehe was changing it from one hand to the other.The trial judge had directed the jury that even ifthe accused's story were true, he would still beguilty of murder, because he had killed in thecourse of a felony of violence (the violence herebeing presumably the assault involved in thelevelling of a gun). The Court of Criminal Appealconfirmed this view of the law and upheld the con-victionPu But there has never been any suggestionin the English courts that the felony murder rulemight be pushed to cover the accidental death ofan accomplice or the accidental slaying of a specta-tor by a bullet from a policeman's gun, as thecourts have held or suggested in at least oneAmerican jurisdiction." The only extension of therule which was to be found in England is the situationnow covered by §1 (2) of the Homicide Act supra,a killing in the course of resisting an officer of thelaw or while resisting a lawful arrest. But againthis provision had very little impact on the Englishlaw of homicide. It certainly did not seem that amodern court would have taken it to cover theextreme case of the police officer who, while chasingthe escaping defendant, trips and breaks his neck.The very few modem cases on this point of law inEngland made it clear that the rule only appliedwhen real violence was used against the arrestingofficer.14 Its effect was therefore limited, as withthe major branch of the felony-murder rule, toensuring a conviction for murder in the case wherethe violence used might fall short of that necessaryto make out a convincing case of ordinary malice.

However restricted these rules were in theiroperation, they are now gone in England. Follow-ing the recommendation of the Royal Commissionon Capital Punishment 5 the Homicide Act hasswept felony murder into the bin of history. Butthe statutory language used in effecting this aboli-tion has itself posed a grave problem of interpreta-tion for the English courts. The marginal note to§ 1 (1) runs "Abolition of 'constructive malice' ",

"131 CRirM. APP. REP. 39 (1945).12 But Jarmain was reprieved.11See Commonwealth v. Bolish, 381 Pa. 500, 113

A.2d 464 (1955)." Reg. v. Porter 12 Cox CRmI. CAsEs 444 (1873):

R. v. Appleby 28 Calm. APP. REP. 1 (1940), discussedin REPORT Op =HE R.C.C.P. par. 79 and Appendix7 (b).

Is REPORT Op TEr R.C.C.P., pars. 121-123.

and the language of § 1 (1) itself says that a killingshall not amount to murder "unless done with...malice aforethought (express or implied)". Beforethe Act, "constructive malice" or "implied malice"were often used interchangeably to refer to felonymurder. Now it appears that constructive malice isthe correct term to use in this connection, andimplied malice remains a live possibility in the lawof murder. If implied malice can still hang a manit is well to know precisely what it is. In this waythe Homicide Act has indirectly forced the Englishcourts to come out with a review of the nature ofthe mens rea of murder which, astonishingly as itmight seem, was not at all a clear topic before theAct.

An intention to kill a human being has alwaysdearly amounted to a sufficient malice (express).So too has the doing of an act inherently verylikely to cause death but without proof beyond areasonable doubt of a desire to bring about death.This foresight of the high possibility of death with-out a desire to cause it reveals a recklessnesstowards the taking of life that the common lawhas always been willing to regard as an sufficientmalice. But beyond this there has often been talkin the common law of an intention to cause grievousbodily harm as being a sufficient mens rea for mur-der, if death ensues. 6 A great deal turns here onthe meaning of "grievous bodily harm." If taken torefer only to the kind of harm of which death is avery possible or probable result, then it adds noth-ing to the category of recklessness. But, if it meanssomething less than this, then it adds a good dealand becomes in itself a sort of additional varietyof constructive murder. The drawing of sharplines and clear distinctions in this field had beensuccessfully avoided by the English courts untilthe Homicide Act, with its clear contrasts betweenconstructive and implied malice on the one handand express and implied malice on the other hand,made such a disentanglement inevitable. The casein which the matter came to a head was Reg. v.Vickers.1

7

TnE VICKERS CASE

The accused had broken into a house to commita burglary and had been discovered by the house-holder, a woman of seventy-two. He struck hermany blows, apparently to prevent her recognizinghim, and there was some evidence, though theaccused denied it, that he had kicked her in the

"s Ibid. pars. 470-475.17 [19571 3 W.L.R. 326

GRAHAM HUGHES

face. The woman died as a result of the attack,though the medical evidence was that the injuriessuffered by her could have been inflicted with onlya moderate degree of violence. The trial judge haddirected the jury that the accused was guilty ofmurder if he had struck the woman with an inten-tion to do her grievous bodily harm. "Murder",said the judge "is with the intention to kill or to dogrievous bodily harm ... Malice will be implied,if the victim was killed by a voluntary act of theaccused-and here is the importance of what I amgoing to say-done with the intention either tokill or to do some grievous bodily harm. The griev-ous bodily harm need not be permanent, but itmust be serious, and it is serious or grievous if itis such as seriously and grievously to interfere withthe health or comfort of the victim."'18

The accused was convicted of murder and ap-pealed to the Court of Criminal Appeal. The mainground of the appeal was the contention that caus-ing grievous bodily harm is in itself a separateoffence and that by virtue of § I (1) of the HomicideAct killing in the course of another offence is notper se murder. Therefore, the accused argued, thenecessary malice aforethought for murder must beestablished independently from an intention tocause grievous bodily harm which is merely themens rea of another and lesser offence. The Courtof Criminal Appeal, sitting as usual with threejudges, did not reach unanimity on its first hearingof the case and the Lord Chief Justice accordinglysummoned a fuller court of five judges, as is some-times done in England when it is felt that the caseinvolves a point of exceptional importance. 9 Thisfuller court reached unanimity and in a judgmentdelivered by the Lord Chief Justice the directionsof the trial judge were upheld. The Court regardedthe matter as having been "thoroughly explored"and expected their decision to be a "guidance tocourts in the future". 0

The flaw in the appellant's argument was, thecourt felt, that the "furtherance of some otheroffence" mentioned in Section 1 (1) of the Homi-cide Act must refer in the circumstances of thiscase to the burglary and not to the causing ofgrievous bodily harm. Thus the effect of the statutewas that not all acts of violence done in the course

18 At 330.'9 The English Court of Criminal Appeal consists of

any three judges of the Queen's Bench Division, usuallyincluding the Lord Chief Justice who acts as President.But the Court may consist of any uneven number ofjudges.

20 [1957] 3 W.L.R. at 327-328.

of a burglary would amount to murder if deathensued. If, therefore, the accused, as the trial judgehad rightly pointed out to the jury, had killed thewoman "without intending her any harm, or onlytrifling harm" (the Lord Chief Justice's exampleof this was "a push to get her out of the way") hewould have been guilty of manslaughter only.21

But if he intended to cause her grievous bodilyharm it was murder, for "the 'furtherance of someother offence' must refer to the offence he wascommitting or endeavouring to commit other thanthe killing, otherwise there would be no sense init".n The court summed up its opinion in the fol-lowing passage: "Murder is, of course, killing 'Withmalice aforethought, but 'malice aforethought' is aterm of art. It has always been defined in Englishlaw as, either an express intention to kill, as couldbe inferred when a person, having uttered threatsagainst another, produced a lethal weapon andused it on a victim, or implied, where, by a volun-tary act, the accused intended to cause grievousbodily harm to the victim and the victim died asthe result. If a person does an act which amountsto the infliction of grievous bodily harm he cannotsay that he only intended to cause a certain degreeof harm. It is called malum in se in the old casesand he must take the consequences. If he intendsto inflict grievous bodily harm and that persondies, that has always been held in English law, andwas at the time this Act was passed, sufficient toimply the malice aforethought which is a necessaryconstituent of murder."'"

The Homicide Act has thus compelled the Eng-lish courts to embark on a clarification of the mensrea of murder at common law. The nature of theclarification in the Vickers case is, however, onethat has called down a good deal of criticism. Thejudgment of the Court of Criminal Appeal has beenstrongly assailed in a paper by one of England'sleading jurists of the criminal law, Mr. J. W. CecilTurner' 4 Mr. Turner objects in the first place tothe court's easy dismissal in the Vickers case of theargument that causing grievous bodily harm isitself an offence and that therefore the proof ofkilling in the course of this offence cannot by virtueof the Homicide Act amount per se to murder. InMr. Turner's view this argument has a good deal

" At 330."2 At 329."At 328.24 TURNER, Mfalice Implied and Constructive, CRINs-

NAL L. REv. (1958) 15. Mr. Turner repeats his argu-ment in his latest (17th) edition of KENNY'S OUTLINESor CRmIMNAL LAW (1958), 148-154.

[Vol. 49

THE ENGLISH HOMICIDE ACT

to commend it and the court's dismissal of it seemsto him to amount almost to saying "a feloniousassault constitutes implied malice because it is not'some other offence' and it is not some other offencebecause it constitutes implied malice. '25 AgainMr. Turner is disturbed by the dear implication inthe Vickers case that the meaning of "grievousbodily harm" as a test for the mens rea of murderis identical with its meaning in the felony of causinggrievous bodily harm under the Offences Againstthe Person Act of 1861,26 i.e., as the trial judge toldthe jury in the Vickers case, a harm that need notbe permanent, but must seriously interfere with thehealth or comfort of the victim. If this is so, Mr.Turner believes that as a result of the Vickers case"the law of murder has now been made moresevere than in effect it was prior to the new Act.For, according to the above dicta, if a man, incircumstances which made it dear that he did notintend to imperil another man's life but did intendto assault that person, were to strike a man withhis fist intending to make his nose bleed or toblacken his eyes or cause a superficial laceration, orshould hit his hand with a stick and thereby breaka finger, such hurt would constitute a grievousbodily harm within the Offences Against the PersonAct, 1861, and should death ensue (due to someunknown constitutional weakness or unexpectedinfection) the attacker would be guilty of mur-der."2

The language of the Court of Criminal Appealin the Vickers case stating that where the accusedinflicts grievous bodily harm "he cannot say thathe only intended to cause a certain degree ofharm", certainly seems to suggest some sort ofstrict liability for murder of the sort which Mr.Turner deplores. One can only hope that thisparticular sentence was an unguarded dictum bythe court which it will later qualify. Otherwise theelimination of felony murder by the Homicide Actwill have been more than counter-balanced by thegreater strictness of the approach to the commonlaw concept of malice. It would perhaps have beenbest if the framers of the Homicide Act had under-taken to codify the mens rea of murder and embodyit in the new Act. They preferred to leave the com-mon law undisturbed and to complicate the pictureby their unconventional use of the term "impliedmalice". Left with the necessity of discriminatingbetween express and implied malice in the absence

25 CamrN.AL L. REV. (1958) 27.26 24 & 25 Vict., c. 100.'CRIMINAL L. REV. (1958) 28-29.

of the felony-murder rule, it is perhaps not surpris-ing that the courts should so readily have but-tressed and enlarged the concept of intent to causegrievous bodily harm. Mr. Turner suggests analternative solution, viz. that "express malice"might be taken to refer to an intention to kill and"implied malice" to circumstances in which therewas recklessness towards human life without proofof a desire to bring about death.3 In this way themens rea of murder would never lack the essentialconstituent of an awareness, a foresight in theaccused of the life-endangering quality of his act.If it was hoped that this was the principle whichthe new Homicide Act would establish in Englishlaw, this expectation has been unhappily defeatedby the decision of the Court of Criminal Appealin the Vickers case.P

DmrrIsHED RESPONSIBILITY

§ 2 (1) Where a person kills or is a party tothe killing of another, he shall not be convictedof murder if he was suffering from such abnor-mality of mind (whether arising from a condi-tion of arrested or retarded development ofmind or any inherent causes or induced bydisease or injury) as substantially impairedhis mental responsibility for his acts and omis-sions in doing or being a party to the killing.

§ 2 (2) On a charge of murder, it shall be forthe defence to prove that the person chargedis by virtue of thii section not liable to beconvicted of murder.

§ 2 (3) A person who but for this sectionwould be liable, whether as principal or asaccessory, to be convicted of murder shall beliable instead to be convicted of manslaughter.

§ 2 (4) The fact that one party to a killing isby virtue of this section not liable to be con-victed of murder shall not affect the questionwhether the killing amounted to murder in thecase of any other party to it.This second section of the Act represents the

official reply to the long standing attacks on the

U2Sbid. at 30.29 The very danger of such a principle as seems to

have been established by the Vickers case was pointedout by the REPORT OF TuE R.C.C.P., par. 472: "Thereis no statutory definition of 'grievous bodily harm' butit has been held that it need not be permanent ordangerous but only 'such as sensibly to interfere withhealth or comfort'. We find it difficult to believe thatthe intentional infliction of such an injury necessarilyinvolves 'wilful exposure of life to peril'; and we aretherefore disposed to think that it is too wide a criterionto support a charge of murder."

GRAHAM HUGHES

adequacy of the M'Naghten Rules as a defence.The M'Naghten Rules in England, at any rate inthe theory of the law, are severe and narrow intheir application. They do not cover irresistibleimpulse which the English judiciary has resolutelyrejected as an excuse,30 and the knowledge ofwrongfulness necessary for a conviction is taken tomean mere knowledge of the illegality of the act.3

Though juries might take in practice a more lenientattitude in some casesn the state of the law ofinsanity as a defence had not advanced at all fromthe time when Lord Bramwell was forced to admitthat "nobody is hardly ever really mad enoughto be within it '"

The Homicide Act does not at all abrogate theM'Naghten Rules. The Rules are preserved, sothat insanity is as much a complete defence asbefore the Act. What the Act does, however, is tointroduce a supplementary doctrine of "diminishedresponsibility." Under this doctrine, a "substanti-ally impaired" mind (less than "insanity" underthe M'Naghten Rules) affords a killer a reductionof his offence from murder to manslaughter. Thedoctrine is professedly borrowed from Scottish lawwhich has applied it since the middle of the nine-teenth century. The Scottish doctrine operates atcommon law while the English version will ofcourse be controlled by the statutory language, butit is highly probable that the English courts willfor some time refer to Scottish decisions for guid-ance in the application of the concept.34 The natureof the doctrine as it operates in Scotland is revealedin the following extracts from leading Scottishdecisions:

"It is very difficult to put it in a phrase, but ithas been put in this way: that there must be aber-ration or weakness of mind; that there must besome form of mental unsoundness; that there mustbe a state of mind which is bordering on, thoughnot amounting to, insanity; that there must be a

30 See R. v. Kopsch, 19 Cams. APP. REP. 50 (1925).31 See R. v. Codere, 12 Cm. APP. REP. 21 (1916)

and Reg. v. Windle, 36 CRru. APP. REP. 85 (1952)." The extent to which juries ignored the Rules was

a matter of dispute between experienced witnessesbefore the R.C.C.P. See REPORT OF THE R.C.C.P.,pars. 232-243.

33MiNUms OF EvIDENcE OF SELECT CoMMrITrEEON THE HOMIcmDE LAW AMENDMENT BILL, 1874,Q. 186. Lord Bramwell, however, finished this sentenceby saying that the Rules offered a "logical and gooddefinition".

4In Reg. v. Dunbar [1957] 3 W.L.R. 330, the Courtof Criminal Appeal in discussing the defence of di-minished responsibility relied heavily on the Scottishdecision of H.M. Advocate v. Braithwaite, 1945 J.C.55.

mind so affected that responsibility is diminishedfrom full responsibility to partial responsibility-in other words, the prisoner in question must beonly partially accountable for his actions. And Ithink one can see running through the cases thatthere is implied.., that there must be some formof mental disease."36

"It will not suffice in law for the purpose of thisdefence of diminished responsibility merely to showthat an accused person has a very short temper or isunusually excitable and lacking in self control." 36

"The evidence of one of the witnesses was tothe effect that he was inclined to place the accusedin the category of a psychopathic personality ....The Court has a duty to see that trial by judge andjury according to law is not subordinated to medi-cal theories; and in this instance much of theevidence given by the medical witnesses is, to mymind, descriptive rather of a typical criminal thanof a person of the quality of one whom the law hashitherto regarded as being possessed of diminishedresponsibility."H

So the Scottish doctrine, while couched in broadand general terms, does seem to demand proof ofsome form of mental disease and apparently ex-cludes from its embrace that vague congerie ofmisfits who are sometimes called psychopaths.The Homicide Act, it will be noticed, inserts thequalification that the "abnormality of mind"must arise from "a condition of arrested or re-tarded development of mind or any inherentcauses" or must be "induced by disease or injury".The leader of the movement for the abolition ofcapital punishment in the House of Commons, Mr.Silverman, resisted the inclusion of this qualifica-tion and it seems probable that its purpose was togive a ground for the exclusion from the scope ofthe section of those whose only manifestation ofdisease of the mind is their anti-social behavior.

Once evidence is offered of the kind of abnormal-ity indicated by the section the question is forthe jury. And the question is whether the "mentalresponsibility" of the accused was "substantiallyimpaired". More than perhaps any other questionthat a jury is called upon to answer, this is onethat calls for a free emotional response to the total

35H.M. Advocate v. Savage, 1923 J.C. 49, 50-51."6H.M. Advocate v. Braithwaite, 1945 J.C. 55, 58.- Carraher v. H.M. Advocate, 1946 J.C. 108, 117-

118. Fuller extracts from the Scottish decisions aregiven in REPORT OF =XE R.C.C.P., Appendix 8 (b);and see T. B. SmiTH. Diminished Responsibility,CRmNAT L. REV. (1957) 354.

[Vol. 49

THE ENGLISH HOMICIDE ACT

situation. For responsibility is not a quality inher-ent in the accused but rather an attribute that isascribed to him. The M'Naghten Rules, howeverharsh, did offer a structure for rational adjudica-tion; the defence of diminished responsibility doesnot even profess to do this but allows the jury afree exercise of compassion. This of course is notnecessarily a demerit.

The burden of proof here is said by Section 2 (2)of the Act to be on the defence, as it always waswith the M'Naghten Rules. Under the Englishrule this burden is discharged by establishing apreponderance of probabilities. S"

tMPACT ON THE M'NAGHTEN RULES

A question of great importance, the answer towhich is not at all dear, is the impact which thenew doctrine of diminished responsibility will haveon the working of the M'Naghten Rules. Intheory the Rules are left untouched, but will theyin fact have any real significance in the future?During the debate in the House of Commons onthe Homicide Act the Attorney-General com-mented on this point as follows: "I think that thestrict answer to that [i.e., whether the diminishedresponsibility doctrine would in fact abrogate theM'Naghten Rules] is that it will not, but I do notsuppose that many accused persons will put for-ward a defence of insanity. I should perhaps makethis dear. If the defence raises any question as tothe accused's mental capacity, and evidence iscalled to show that he is suffering from a seriousabnormality of mind, then, if the evidence goesbeyond a diminution of responsibility and reallyshows that the accused was insane within theM'Naghten Rules, it would be right for the judgeto leave it to the jury to determine whether the

33 Reg. v. Duz;,AR [1957], 3 W.L.R. 330, 333-335.In Reg. v. Matheson [19581 1 W.L.R. 474, [19581

2 All. E.R. 87, there was unanimous medical testimonyto the effect that the accused was a feeble-mindedpsychopath. Nevertheless the jury rejected the defenceof diminished responsibility, no doubt moved by therevolting circumstances of the killing. The Court ofCriminal Appeal found the jury's verdict to be unsup-ported by the weight of the evidence and substituted,as may be done under the English practice, a verdictof guilty of manslaughter on the ground of diminishedresponsibility. This case, decided by a full court, isof great importance as it shows that a psychopath offeeble mind may be covered by the defence. In theearlier case of Reg. v. Spriggs [1958] 2 W.L.R. 162,it was held by the Court of Criminal Appeal that ajury had properly rejected the defence of diminishedresponsibility where the accused had been describedas of psychopathic personality but was admittedly ofhigh intelligence. On these cases see Hall Williams,Note, 21 MODERN L. REV. 544 (1958).

accused was, to use the old phrase, 'guilty butinsane' or to return a verdict of manslaughter onthe basis that, although not insane, he sufferedfrom diminished responsibility." 31

In England a verdict of "Guilty but Insane",which is the form used when the M'Naghten Rulesare applied,40 results in the committal of the ac-cused by the court to detention in a criminallunatic asylum, detention which may be for a longperiod and will sometimes be for life. The possibil-ity held out by the Homicide Act of a convictionfor manslaughter on the ground of diminishedresponsibility, followed by a term of imprisonmentof probably not an intolerable length, is clearlymore attractive to the defence. This seems toraise the horrid prospect that those defendantswith serious mental derangements will under thenew statute be convicted of manslaughter and willbe treated as normal prisoners. Such a lamentableoutcome is, however, unlikely. It can be avoided inthe first place by the power which the judgepossesses of putting the issue of insanity to thejury in terms of the M'Naghten Rules once thedefence has led any evidence of mental abnormal-ity. And if this power should on occasions fail andthe accused, who is dearly in an advanced state ofmental illness, be sentenced to a term of imprison-ment for manslaughter, it is still possible to removehim to a criminal lunatic asylum by a process ofcertification.'

But, although the practical outcome may notbe disastrous and is indeed an improvement onthe previously unchallenged M'Naghten Rules,the state of the law under the new Act is scarcelyelegant. The Royal Commission on Capital Punish-ment, in fact, expressly rejected the device ofdiminished responsibility as practised in Scotland,though on the somewhat curious ground that itwould be too radical an amendment of the law ofEngland to be justified for such a limited purpose.2

A more cogent objection is surely that the wholenotion of diminished responsibility makes verylittle sense. The idea that one may be so mentallyabnormal as not to be accountable for a killing inthe sense that one ought to be sentenced to death,but yet may remain so accountable as to be sen-

39 560 HousE oF CoMaoNs DEBATES, 1254.40 The special verdict in this form was created byS.2 (1) of the Trial of Lunatics Act, 46 & 47 Vict.,c. 38 (1883).

41 These points are made by GRxw, Diminished Re-sponsibility and the Trial of Lunatics Act, 1883, CRrIr-NAL L. REV. (1958) 521.

4 REPORT or THE R.C.C.P., par. 413.

19591

GRAHAM HUGHES

tenced to a term of imprisonment is difficult tosupport. This is, of course, exactly the situationwith the doctrine of provocation and what hasnow happened in England is that diminishedresponsibility has been added to provocation as asupplementary doctrine of extenuating circum-stances which may justify a lesser punishment.Now the only sense that can be made of the doc-trine of provocation is that we are ready to punishpeople for not controlling themselves as we thinkthey should have, but since we are all uncomfort-ably aware of our own propensities to behaveunreasonably we mitigate the penalty. (This isnot, of course, the conventional justification of thedoctrine but is surely the only one that makessense.) Those who are unlucky enough to lose self-control in circumstances which result in theirtaking a life must suffer for the sake of communalexpiation. This is a primitive notion and it is nowmatched by an identically unhappy and irrationalattitude to those who suffer from mental abnormal-ity. We are now to say that those who are mentallyabnormal may be partially responsible for killing.We are becoming sensitive enough to be shockedat the thought of executing them, but are stillinsensitive enough to send them to prison. This isa most uneasy compromise in which society con-sumes its cake of guilt by tossing morsels in con-trary directions. We cannot altogether abandontalk of punishment; these people are too like us forus not to punish them. At the same time we cannotcall them murderers and hang them. Again theyare too like us.

The Royal Commission on Capital Punishmentrecommended (with three dissentients) that thebest amendment of the law of insanity as a defenceto crime would be a complete abrogation of theM'Naghten Rules and the submission to the juryof the general question whether at the time of theact the accused was suffering from disease of themind or mental deficiency to such a degree that heought not to be held responsible.4A This recom-mendation was criticized as leaving the matter inaltogether too vague and imprecise a formula andit was not pursued. Its unpopularity was no doubtdue to the ruthless way in which it deprives theunclear mind of the delightful solace of havingthings both ways, a comfort which is obviouslythe chief attraction of diminished responsibility.For under the Royal Commission's proposal thereis insistence on the single choice between recogniz-

43 Ibid., par. 790, §15-20.

ing mental abnormality as a matter which removesthe accused from the field of crime and punish-ment and places him in the category of sicknessand treatment, and, on the other hand, the rejec-tion of the relevance of the mental condition. Thereis a lot more sense in this than in the Erewhonianattitude of the diminished responsibility doctrinewhich seems to regard mental abnormality assomething in itself deserving moderate punish-ment. But, in so far as the new doctrine meansthat mentally sick persons who would previouslyhave been hanged will now be saved in England,it is, of course, vastly welcome.

PROVOCATION

§ 3 Where on a charge of murder there isevidence on which the jury can find that theperson charged was provoked (whether bythings done or by things said or by both to-gether) to lose his self-control, the questionwhether the provocation was enough to makea reasonable man do as he did shall be left tobe determined by the jury; and in determiningthat question the jury shall take into accounteverything both done and said according tothe effect which, in their opinion, it wouldhave on a reasonable man.The law of provocation in England, a mitigating

circumstance which reduces murder to man-slaughter, had over the last hundred years becomehardened into a series of rigid sub-rules. So it hadbecome settled that the provocation must be suchthat it not only caused the accused to lose hisself-control but would have caused the reasonableman to lose his self-control" (the folly of punish-ing people for behaving reasonably apparently nothaving been perceived), and again that mere wordscannot amount to provocation. 45 In the operationof this restricted doctrine the judge played a con-trolling role. He decided as a question of lawwhether the allegations of the defence couldamount to provocation with respect to the reason-able man; the jury's only function was then todecide, if the questions were put to them, whetherthe provocation was in fact enough to act on a

"R. v. Alexander, 9 CaIM. ApP. RE:P. 139 (1913);R. v. Lesbini [19141 3 K.B. 1116; Bedder v. Directorof Public Prosecutions [19541 1 W.L.R. 1119.

45 Holmes v. Director of Public Prosectutions [1946]2 All E.R. 124. The House of Lords in this case didrecognize that words alone might amount to provoca-tion in "circumstances of a most extreme and ex-ceptional character", but such a holding was tanta-mount to excluding them.

[Vol. 49

THE ENGLISH HOMICIDE ACT

reasonable person and whether the accused did infact act under its stress.4 6

The Homicide Act seeks to amend the law byleaving both questions to the jury and at the sametime removing the restriction that words alonecannot be an adequate provocation. These aredesirable reforms but it is to be regretted thatthe concept of the reasonable man, who seems tohave accidentally blundered into this area of lawwhere he is not at all at home, should have beenpreserved.Y Together with the introduction ofdiminished responsibility, this section of the newAct has considerably broadened the doctrine ofextenuating circumstances in the English law ofhomicide.

SUICmE PACTS

§ 4 (1). It shall be manslaughter, and shallnot be murder, for a person acting in pursu-ance of a suicide pact between him and an-other to kill the other or be a party to theother killing himself or being killed by a thirdperson.

§ 4 (2). Where it is shown that a personcharged with the murder of another killedthe other or was a party to his killing himselfor being killed, it shall be for the defence toprove that the person charged was acting inpursuance of a suicide pact between him andthe other.

§ 4 (3). For the purposes of this section"'suicide pact" means a common agreementbetween two or more persons having for itsobject the death of all of them, whether or noteach is to take his own life, but nothing doneby a person who enters into a suicide pactshall be treated as done by him in the pursu-ance of the pact unless it is done while he hasthe settled intention of dying in pursuance ofthe pact.In England suicide is a crime akin to murder.

The consequence of this was that where two per-sons entered into a suicide pact the survivorwould be guilty of murder as a principal in thesecond degree, if he were actually present whilethe other committed suicide, or of murder as anaccessory before the fact if he were not present. s

46 See the discussion in Holmes v. D.P.P., supra note45, at 126.

'7See TURNER, KENNY'S OUTLINES OF CRMNALLAW (17th ed. 1958) 157-161.4 R. v. Croft, 29 Crim. App. Rep. 161 (1944);

REPORT OF THE R.C.C.P., pars. 164-176.

As the Royal Commission on Capital Punishmentput it: "If two thwarted lovers decide to drownthemselves but one is rescued, or if two old peopleresolve to end a life of poverty or sickness bygassing themselves or by taking poison, but onlyone of them dies, the survivor is liable to becharged with and convicted of murder."' '

The Royal Commission proposed that a newoffence of aiding, abetting or instigating suicideshould be created, with a maximum sentence ofimprisonment for life. 0 This would bring the lawinto line with practice, which, in such harrowingcases as those instanced by the Royal Commission,had always been to commute the death sentenceand to inflict a short term of imprisonment. TheHomicide Act has effected the same result bytreating the abetting or instigating of suicide un-der a suicide pact as a form of manslaughter, whichin England is an offence' carrying a maximumpenalty of imprisonment for life. It is suggestedthat here the statute has taken a course preferableto that advocated by the Commission. There arecases where instigation to suicide seems equallyheinous as the more conventional forms of murder.The Commissioners themselves cite the kind ofcase in which "an older man persuades a younggirl pregnant by him to commit suicide and has noreal intention of doing so himself." Under thestatute such cases would remain cases of murderas there could be no satisfaction of the conditionsdemanded by the statute as constituting action inpursuance of a suicide pact. On the other hand, inone respect the statute goes beyond the proposalsof the Royal Commission, for the Commission con-fined its recommendation to the aiding, abetting orinstigating a suicide, while the statute covers thecase of the accused's himself killing the other partyto the pact. For both these reasons the statuteseems to offer a better protection for the genuineparticipant in the suicide pact than the proposalof the Commission.

It will be noticed that the statute does not coverthe ordinary case of the mercy killing or euthana-sia in which the one who kills has no intention oftaking his own life. There is still no general doctrineof mitigation for homicide with consent. The bur-den of showing that the accused acted in pursuanceof the suicide pact is on the defence. Presumably

41 REPORT OF THE R.C.C.P., par. 164.0 Ibid, par. 173.51 Ibid, par. 168. A fictional instance is to be found

in GRAHAM GREENE'S BRIGHTON RocK.

19.59]

GRAHAM HUGHES

this will be a burden of establishing a balance ofprobabilities.n

LxABILITY TO DEATH PENALTY

§ 5 (1) Subject to subsection (2) of thissection, the following murders shall be capitalmurders, that is to say-

(a) any murder done in the course or fur-therance of theft;

(b) any murder by shooting or by causingan explosion;

(c) any murder done in the course or forthe purpose of resisting or avoiding or pre-venting a lawful arrest, or of effecting orassisting an escape or rescue from legalcustody;

(d) any murder of a police officer acting inthe execution of his duty or of a person as-sisting a police officer so acting;

(e) in the case of a person who was a pris-oner at the time when he did or was a partyto the murder, any murder of a prison officeracting in the execution of his duty or of a per-son assisting a prison officer so acting;

§ 5 (2) If, in the case of any murder fall-ing within the foregoing subsection, two ormore persons are guilty of the murder, itshall be capital murder in the case of any ofthem who by his own act caused the death of,or inflicted or attempted to inflict grievousbodily harm on, the person murdered, or whohimself used force on that person in the courseor furtherance of an attack on him; but themurder shall not be capital murder in the caseof any other of the persons guilty of it.

§ 5 (3) Where it is alleged that a personaccused of murder is guilty of capital mur-der, the offence shall be charged as capitalmurder in the indictment, and if a personcharged with capital murder is convictedthereof, he shall be liable to the same punish-ment for the murder as heretofore.

§ 6 (1) A person convicted of murder shallbe liable to the same punishment as hereto-fore, if before conviction of that murder he

52 Though PmvEzER, op. cit. supra note 1 at 647thinks it will be a burden of proof beyond a reasonabledoubt. He does not advance any reasons for thisbelief but seems to regard a strict burden as desirableto lessen the chance of fraud. But this seems a heavytask to place on the defence. The case in which asuicide pact is genuine is the very case in which theparties are not likely to make out affidavits or taperecord their intentions.

has, whether before or after the commence-ment of this Act, been convicted of anothermurder done on a different occasion (bothmurders having been done in Great Britain).

§ 7. No person shall be liable to sufferdeath for murder in any case not fallingwithin section five or six of this Act.So the death penalty is now confined to the five

special cases set out in Section 5 (1) and the caseof repeated murders as provided in Section 6 (1).The preservation of the death penalty in Section5 (1) is evidently not because of the aggravatedmoral condemnation that is thought to attend suchcases, for one may easily imagine cases of poison-ing or killing in the course of rape or after a kid-napping which are more revolting than some mur-ders by shooting or in the course of theft. Thecriterion for distinction is rather the utilitarian onethat these are felt to be the categories in which thedeterrent power of the death penalty is still neces-sary to restrain the professional criminal and pro-tect the officers of the law in their ordinary duties.-It is easy to understand the feelings of a Govern-ment, which was unconvinced of the merits ofabolition, in its efforts to cling on to the noose inthose cases where killing is likely to be the work ofthe dedicated criminal; but the discrimination be-tween capital and non-capital murder is perhapsthe most sensitive of all policy questions and thereare grave objections to this solution. Killing inanger with a gun in circumstances which fall shortof provocation is now to be capital murder, whilea slowly plotted and executed poisoning for finan-cial gain is not to be capital. Of course the powerof the executive to commute the death sentence isretained and will presumably be exercised in caseswhere the application of the death sentence seemsharsh, but one of the chief hopes of a new homicidestatute was that it would largely remove such vitalquestions from the discretion of the Home Sec-retary.

The provision relating to murders in the courseof theft is worthy of special notice. It must, ofcourse, be understood that this is not a reenact-ment of felony-murder. The Act speaks of murdersand not killings in the course of theft as beingcapital, and thus the mens rea of murder in thesense of malice aforethought must always beshown. But we have seen from the Vickers casewhat this may in fact amount to. And the nature

5 This seems to emerge from the statements of theHome Secretary in the House of Commons. See Pa-vEzFR, op. cit supra note 1, 648-649.

[Vol. 49

THE ENGLISH HOMICIDE ACT

of theft in English law hardly provides any verysatisfactory criterion. Section 5 (5) (e) tells us thatfor the purposes of the Homicide Act "theft in-cludes any offence which involves stealing or isdone with intent to steal". It will thus presumablybe confined to larceny and will not include em-bezzlements or cases of obtaining by false pre-tences. The reason for applying the capital sentenceto such murders is then supposedly that theft isthe typical crime of the professional criminal andthe preservation of the death sentence is likely torestrain him in the manner in which he goes abouthis work. If this is the rationale it would seemmore logical to have confined the death penalty tomurders in the course of burglary or housebreak-ing rather than in the course of larcenies generally.

The phrase "in the course or furtherance oftheft" will no doubt raise problems of interpreta-tion. Will it be applied to a murder done whileescaping from the scene of a theft (assuming thatthe facts are such that they would not be coveredby Section 5 (1) (c))? The American cases onfelony-murder clearly cover such a situation. 4

Section 5 (2) is particularly difficult to under-stand. The desire to discriminate, when creatingcategories of capital murder, between those whoare truly involved in the capital character of themurder and those who are not is a laudable one,but this section does a very poor job of discrimi-nating. As it stands, the criminal who instigatesand plots a murder of a capital kind which is thencarried out by his accomplice is not guilty ofcapital murder (though he is of course guilty ofmurder), while the criminal, not himself intendingto kill, who uses any force on the victim, will beguilty of capital murder if the victim is killed byhis accomplice in circumstances which render themurder capital. To find the second man guilty ofcapital murder is justifiable, but the exemption ofthe instigator is then clearly not justifiable. This ismerely to encourage the clever abstention fromthat degree of involvement which renders themurder capital. The death sentence here will oftenbe the penalty for stupidity or chance.

In addition to the five categories of capitalmurder set out in Section 5 (1), there is also thecase of repeated murders as specified in Section6 (1). Why should a second murder especially de-serve the death penalty? It cannot be because sucha killer has demonstrated that imprisonment is an

51 See e.g. State v. 'McCarthy, 160 Or. 196, 83 P.2d801 (1938); State v. Metalski, 116 N.J.L. 543, 185 A.351 (1936).

ineffective deterrent, because this applies to allmurderers. Every killing points to the ineffective-ness of all existing deterrents in that particularcase. Nor can it be because such a man is a partic-ular menace to society in the future; this he maybe but life imprisonment is equally effective forthe protection of society as the death penalty. Theonly explanation that makes sense is that here wehave passed outside the utilitarian approach thatcharacterizes Section 5 (1) and are in the realm ofethical judgments, the judgment presumably beingthat to poison a whole family in one fell swoop isless reprehensible than to murder them piecemeal.For to invoke this clause the murders must havebeen done on different occasions. This is clearly ahighly vague phrase which may lead to graveproblems of interpretation, but whatever interpre-tation may be accorded to it, it is scarcely con-ceivable that it can reflect any rational distinctionin the gravity of the crime which would make thedeath penalty peculiarly appropriate.

NEW PUNISHMENT

§ 9 (1). Where a court ... is precluded bythis Part of this Act from passing sentence ofdeath, the sentence shall be one of imprison-ment for life.The old mandatory sentence of death is thus

replaced in England by a mandatory sentence oflife imprisonment, except in cases of capital mur-der. Here it must be pointed out that the sentenceof life imprisonment in England has never meantanything remotely like what it says. Sentences oflife imprisonment are subject to review by theHome Secretary and the maximum period servedis likely to be fifteen years and is very often muchless than that. Before the Homicide Act, murdererswhose death sentence had been commuted by ex-ecutive action often served very short terms ofimprisonment.' 5 Under the mechanism of the newAct it is probable that the average terms actuallyserved will increase, as murderers in prison maynow include those less likely to command sym-pathy than those who were reprieved before thepassage of the Act, but fifteen years will no doubtstill be an exceptional and maximum term.

CONCLUSION

The Homicide Act, by curtailing the scope ofmurder, has greatly enlarged the area of the

55 REPORT OF THE R.C.C.P., pars. 644-646.

1959)

GRAHAM HUGHES

crime of manslaughter in England. By reason ofthe Act, verdicts of manslaughter will now be ap-propriate in cases of diminished responsibility,suicide pacts, and sometimes in cases which wereformerly ones of felony-murder. Also the scope ofthe doctrine of provocation has been somewhatenlarged, again increasing the possibility of a man-slaughter verdict. A difficulty that suggests itselfhere is that the judge may sometimes not know onwhat ground the jury has returned a manslaughterverdict. Such information is of the greatest needon a question of sentencing, and it is perhaps re-grettable that, at any rate in the case of diminished

responsibility, a special form of verdict is notcalled for by the statute.-6

By thus enlarging the crime of manslaughterthe harshness of the law of murder has undoubtedlybeen tempered. At the same time, in the area ofmurder that is left the death penalty has been con-fined to some special instances. If in many re-spects the Homicide Act is badly drafted, irrationaland muddled, it is none the less a very welcomemollification of an unduly severe law of murder.

6 A suggestion made by HALL WaLrAms, Legisla-lion, The Homiide Act, 1957, 20 MODERN L. REV.381, 383 (1957).

[Vol. 49