There are good reasons why we should be less than happy with both the substantive law and the sentencing of murder. The Law Commission’s recommendations for restructuring the substantive law in 2006 have largely fallen on deaf ears and the deficiencies they identified remain unaddressed. Serious concerns have also been raised about the sentencing law. One of the main assumptions behind the mandatory life sentence — that it was supported by the overwhelming majority of the public — has been doubted following careful survey research, and Sch.21 to the Criminal Justice Act 2003 (to which judges must have regard when determining the minimum term) has been heavily criticised. Through an analysis of the principal shortcomings of the status quo in England and Wales, this article suggests how the criminal justice system should deal with the more serious cases of unlawful homicide by revisiting both the definition of murder and the punishment of convicted offenders.
All countries, be they based on common or civil law traditions, rank crimes of homicide as the most serious on their domestic criminal/penal law menu. Other common features include the recognition of more than one homicide offence and the reflection of ordinal proportionality in sentencing so that, in broad terms, the more serious cases attract more severe punishments. But the details and the boundaries vary from one jurisdiction to another — how many offences the law should recognise, how the “homicide cake” should be divided, what the minimum degree of moral culpability should be for conviction of a homicide offence, what the most severe form of punishment should be and so forth. Midway through the second decade of the twenty-first century, it is perhaps surprising to find that so many fundamental issues are still to be satisfactorily resolved about the structure and nature of the law on what is widely regarded as the most serious forms of illegal behaviour. This article addresses some, though admittedly not all, of these basic issues.