Further evidence of the relationship between legal and public opinion on the law of homicide

Criminal Law Review

Volumn , Issue OCT., 2000, Pages 814-826

  Mitchell, Barry ^a  

^a Faculty of Engineering and Computing   (United Kingdom)

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EID: 25444459114     PISSN: 0011135X     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (73)

1. The British Crime Surveys are a classic example.
2. Thus, for example, the Criminal Law Revision Committee argued that "the word 'murderer' expresses the revulsion which ordinary people feel for anyone who deliberately kills another human being", and later that "the public generally wants murder to be retained as a separate offence. If we were to propose the abolition of the separate crime of murder and its incorporation in a wider offence of unlawful homicide, many people would certainly find it hard to appreciate that the proposal was not meant to weaken the law and would be likely to think that the law no longer regarded the intentional taking of another's life as being especially grave"; see Criminal Law Revision Committee, Fourteenth Report on Offences against the Person (1980) Cmnd. 7844 London: HMSO, para. 15.
3. See Barry Mitchell, "Public Perceptions of Homicide and Criminal Justice" (1998) 38(3) B.J.Crim. 453-472.
4. Respondents also referred to the elderly and the handicapped, and some mentioned those in vulnerable occupations such as police officers.
5. When invited to suggest the most appropriate sentence for what they regarded as the most serious homicide, only 55% of respondents favoured the death penalty. Previous, less detailed surveys had indicated in the region of 75% popular support for capital punishment.
6. n.2, at para. 30. In particular, the CLRC suspected the public might favour treating terrorists who kill recklessly as murderers.
7. Essentially, as well as recording basic demographic details, the researchers collected responses to eight homicide scenarios, views about what were perceived as the most serious and least serious homicides, the sentences which the courts should be able to pass, and the offences the law should recognise.
8. Especially Hart's concern for capacity and fair opportunity to conform to the law's expectations.
9. The fair (or representative) labelling principle argues that crimes should be labelled so as to reflect their degree of moral wrongfulness and relative gravity; see Andrew Ashworth, Principles of Criminal Law (3rd ed.), (1999, Oxford, Oxford University Press), especially at pp.90-93.
10. The principle of correspondence seeks to ensure that D's mens rea encompasses the consequences for which he is held criminally liable: thus, D should only be liable to conviction for murder or manslaughter if he intended to kill or risked doing so; see Ashworth, Principles of Criminal Law (3rd ed.), ibid., at p.89.
11. See also Jeremy Horder, "A Critique of the Principle of Correspondence" [1995] Crim.L.R. 759;
12. and Barry Mitchell, "In defence of a principle of correspondence" [1999] Crim.L.R. 195;
13. and Jeremy Horder, "A Reply" [1999] Crim.L.R. 206.
14. From the original quantitative survey 103 respondents were identified as demographically representative of that survey as a whole and whose responses reflected the range of opinions elicited. From those 103, 33 respondents were interviewed in the follow-up study, comprising 17 females and 16 males, with an age range of 22 to 71.
15. The interviews, which were tape-recorded, were conducted between July and October (inclusive) 1998. 11 interviewees each lived in the north, the midlands, and the south.
16. "A young woman was walking her dog by a lake - she slipped and fell into the water. A passer-by saw her drowning in the lake. Although he could swim, instead of trying to save her he walked by and she drowned."
17. The original survey invited responses to a "thin skulls scenario" in which "A man and a woman were arguing about who was first in the queue at the supermarket. He gently pushed her and she unexpectedly tripped and bumped her head against a wall. She had an unusually thin skull and she died from her injuries." This was rated as of relatively low gravity, and the vast majority of respondents thought there should be no prosecution for homicide because death was purely accidental and unforeseeable.
18. In the earlier survey respondents were confronted with the following scenario: "A group of terrorists threatened a man with his own life if he did not agree to kill a local businessman. The man was told by the terrorists that he had a week in which to kill the businessman, and that if he went to the police he would be shot. Scared for his own life, the man could see no alternative and he killed the businessman." Unfortunately, most respondents assessed the severity of the threat per se rather than the killer's motives and justification.
19. Interviewees were asked to comment on a scenario in which "a soldier was ordered by his commanding officer to kill a man. The soldier believed the man was not one of 'the enemy' and only killed him because he had been ordered to do so". Other scenarios involving what might be called "partially involuntary" homicides such as killing in self-defence or necessity had been tested in the quantitative survey.
20. Interviewees were invited to comment on the following scenario: "Having drunk 3 or 4 pints of beer, a man is a little unsteady on his feet, merry but not rolling drunk. He ignores the pub landlord's suggestion that he should leave his car at the pub and he drives home. On the way he fails to negotiate a bend and knocks down a pedestrian, killing him."
21. No scenario as such was used here. Instead, interviewees were simply invited to comment on homicides perpetrated by people who were genuinely mentally ill and who would not have killed but for their illness.
22. The scenario posed to interviewees was "In order to make some sort of political statement, a man plants a bomb in a busy shopping precinct and detonates it, killing a dozen people."
23. See, for example, Andrew von Hirsch, Past or Future Crimes: deservedness and dangerousness in the sentencing of criminals (1985, Manchester, Manchester University Press);
24. and Andrew von Hirsch & Nils Jareborg, "Gauging Criminal Harm: a Living Standards Analysis" (1991) 1 O.J.L.S. 1.
25. It was not clear whether respondents thought that homicides with these characteristics should be formally placed in a separate category, or whether the seriousness should simply be reflected in a tougher sentence.
26. Other reasons for regarding euthanasia as the least serious of homicides included the right of the deceased to die (with dignity).
27. See n.19.
28. The Law Commission favour retention of this distinction; see Legislating the Criminal Code: Offences Against the Person and General Principles, Law Com. 218 (1993) London: HMSO; and clauses 2, 3 and 4 of the Criminal Law Bill.
29. "Multiple" rather than "double" murder was suggested so as to avoid the trap of having to recognise a separate crime for each additional homicide - three victims = "triple murder"; four victims = "quadruple murder", etc.
30. Five interviewees did not address the point directly; twenty-four favoured a separate "multiple homicide" type of offence.
31. Most respondents did not initially respond by referring to the anonymity of victims but had to be asked to consider it. They simply indicated that a charge of multiple murder rather than 12 counts of murder would be more appropriate.
32. See n.19.
33. "It shows he must have really meant to kill"; or "he knew people would die".
34. When invited to consider a scenario in which a burglar, having decided at the outset that he would kill if necessary, in fact did kill a woman when she disturbed him in the course of burgling her house, respondents in both surveys identified the premeditation as an aggravating factor.
35. See n.17.
36. Obviously, this was perceived as a less culpable form of premeditation than one where there is a planned intention to kill. The responses here were virtually identical to those given to the drowning woman scenario, in which a passer-by makes no attempt to rescue a drowning woman, (see n.13). The passer-by's culpability derives not from the woman's death but from his failure to make any effort to summon assistance, whether or not that assistance might prove successful.
37. See, e.g. R. A. Duff, Intention, Agency and Criminal Liability (1990, Oxford, Blackwell Ltd), especially chapter 7;
38. and Barry Mitchell, "Culpably Indifferent Murder" (1996) 25 Anglo-Am.L.R. 64-86.
39. Cunningham [1982] A.C. 566.
40. See, for example, Ashworth, n.9, at p.270.
41. See n.14.
42. A typical reply was, "Oh no, that's just an accident. You can't blame him for that".
43. i.e. for the purposes of a section 47 assault occasioning actual bodily harm, in accordance with the Code for Crown Prosecutors.
44. e.g. "he swung at her with something very heavy", or if "he cracked her across the head".
45. Their immediate response was that D should be kept away from the public; they had to be prompted to indicate whether D should be prosecuted in a criminal court. Typical responses included, "he should be locked up out of harm's way", "they should take him out of circulation", "society needs to be protected from him".
46. See n.15.
47. See n.3, at p.459.
48. Though compare Chandler v. DPP [1964] A.C. 763 with Steane [1947] K.B. 997.
49. Respondents in the quantitative survey were generally sympathetic towards the killer in the following scenario: "Two mountain climbers were roped together. One of them slipped and fell. The other tried to hold on to the rocks for both of them, but he knew that if he did not cut the rope they would both die. To save himself, he cut himself loose, knowing that the other climber would fall to his death." In addition to treating the surviving climber's desire to save himself as reasonable, respondents commonly felt that the deceased must have known the potential hazards when he set out and had therefore consented to take the risk that he might be killed.
50. Respondents in the original survey were asked to assess the gravity of a burglary scenario in which the burglar panics when disturbed and picks up an ashtray which was near at hand and fatally hits his victim over the head with it. Notwithstanding the fact that he reacted on the spur of the moment, respondents criticised him partly because he ought not to have been burgling his victim's house.
51. Respondents in both surveys suggested that killing to save someone else's life would invariably be better than killing to save one's own life.
52. See especially the House of Lords in Clegg [1995] 1 A.C. 482 at 498; the Privy Council in Yip Chiu-Chang [1995] 1 A.C. 111 at 118; both cases following earlier statements by law lords in Abbot v. R [1976] 3 W.L.R. 462 at 469; and Howe [1987] A.C. 417 at 427.
53. Smith and Hogan, Criminal Law (9th ed.), (1999, Butterworths), at p.264.
54. Clarkson and Keating, Criminal Law: Text and Materials (4th ed.), (1998, Sweet & Maxwell), at p.359.
55. There was no discernible difference in the responses of those who were or were not parents or grandparents. One interviewee defined children for this purpose as aged no more than three or four years old.
56. See, for example, Ashworth, n.9, at 69.
57. See n.13.
58. In this respect they were clearly reflecting how they felt they would react if they had made no attempt to save the deceased: whether they were correct in attributing their reaction to the man in the scenario obviously cannot be taken for granted.
59. i.e. from 26 interviewees.
60. Typical responses included, "Well where would we be if we all just sat there and watched?" and "It's not too much to expect".
61. They would place killing an elderly or handicapped person in the same offence category as a child killing, though they would regard the latter as more serious.
62. See, for example, Sir Brian MacKenna, "Causing Death by Reckless or Dangerous Driving: a Suggestion" [1970] Crim.L.R. 67;
63. and Sally Lloyd-Bostock, "The Ordinary Man, and the Psychology of Attributing Causes and Responsibility" (1979) 42 M.L.R. 143 at 156-157.
64. See, e.g. CLRC, n.1, para. 142.
65. See Department of Transport, Home Office, Road Traffic Law Review, Report (1988) London: HMSO, para. 6.9.
66. Initially, dangerous driving was used but was replaced by reckless driving which, in turn has been substituted by dangerous driving again.
67. A phrase used by 10 interviewees. Several interviewees specifically likened the potential of a car to kill or seriously injure to that of a gun or knife.
68. The phrase "make it a laughing stock" was coined by seven interviewees. Interestingly, part of another research study which the author is currently pursuing suggests that vehicular homicides very rarely result in a conviction for manslaughter. A few are treated as murder, but the great majority lead to conviction for causing death by dangerous driving at most. Indeed, not only is this true of convictions, but drivers who kill are usually charged with murder or causing death by dangerous driving; the Crown Prosecution Service seem reluctant to charge manslaughter.
69. Arguably, the burglar is guilty of constructive (unlawful and dangerous act) manslaughter.
70. For example, J. R. Spencer, "Road Traffic Law: a Review of the North Report" [1988] Crim.L.R. 707.
71. Whilst the sample size was obviously small, the personal details of the interviewees varied quite considerably, certainly in terms of their age, domestic and family circumstances, educational and occupational background and socio-economic status. (Admittedly, most associated themselves with some form of Anglicanism - if only in name - and there was little representation of ethnic minority groups, but the quantitative survey offered no suggestion that religious affiliations or ethnicity had any significant impact on respondents' opinions.) These respondents had spent a total of at least two and often more than two and a half hours (between the two surveys) discussing the subject. Moreover, the pilot studies which preceded the quantitative survey clearly indicated that ordinary lay-men and women identified elements of blameworthiness as grounds for treating some homicides as more serious than others.
72. e.g. D's behaviour since the offence - whether he helped the police.
73. e.g. premeditation.