Julie Bindel in today’s Guardian (it’s been a Guardian week for me so far) welcomes in an anticipatory way proposals that are expected from the government to reform the law of provocation as it applies to murder.
Well, all right. I dare say I’ll support these proposals; I certainly won’t oppose them. I accept that the provocation defence has often been used by men in questionable circumstances, and that the way the defence works now may be unfairly biased in favour of some defendants (often men) and against others (often women).
But all the convoluted need to design defences so as to allow the courts to be lenient with battered wives who kill their husbands and others is purely, solely and simply a perverse outcome of the wrong-headed mandatory life sentence for murder. The varieties of murder are endless; and murderers come in so many shapes that the courts need to be able to show extreme clemency with some, and extreme rigour with others.
The one thing that does not make sense is to have a mandatory sentence set by law in all cases; it’s a prime example of over-regulation in the criminal justice system. I cannot understand why liberal reformers don’t put more energy into trying to get the mandatory sentence removed: fiddling about with the details of defences to homicide would then be so much less necessary.
The whole law relating to “homicide” (murder, manslaughter, infanticide etc) is, to quote the Law Commission, a “mess.”
http://www.lawcom.gov.uk/murder.htm
Personally, I would rather this wrteched government allow the Law Commission to bring forward a proposal for reform and then enact it as recommended. Is that too much to ask of our politicians? I’am afraid that it is!
The reform proposal would probably bring in a new definition of murder so that this most serious of offences was confined within narrower limits. If that were done then there would be far less objection to the mandatory life sentence (with a tariff set by the judiciary).
Having said that, it would be a brave political party which stands up and proposes the abolition of the mandatory life sentence. There are no votes in doing that! This is why the government seeks ways to avoid the judges having to impose that sentence. However, they should refrain from further tinkering and go for wholesale reform of the law.
In fact, it will now be exceedingly rare that a whole life tariff will be actually applied – see the recent Court of Appeal decision in Bieber:
http://www.bailii.org/ew/cases/EWCA/Crim/2008/1601.html
There the court substituted 37 years for a whole life tariff.
I have long found the American law in this area, with its degrees of homicide, to be an attractive formulation.
It is hardly surprising that people complain about about a “life” sentence resulting in release within just a few years. Their inclination is to complain that life should mean life whereas the rational complaint is that it was a nonsense to impose life at all in the circumstances.
Governments of both parties have been guilty of retaining a law with an in-built nonsense factor for fear of losing votes if they suggested that some killings do not deserve the “life” tag. Were they a little braver they might find the opposite to be true.