Homicide Act 1957
Encyclopedia
The Homicide Act 1957 is an Act
of the Parliament
of the United Kingdom
. It was enacted as a partial reform of the common law
offence of murder in English law
by abolishing the doctrine of constructive malice (except in limited circumstances), reforming the partial defence of provocation
, and by introducing the partial defences of diminished responsibility
and suicide pact
. It restricted the use of the death penalty for murder.
Similar provisions to Part I of this Act was enacted for Northern Ireland
by Part II of the Criminal Justice Act (Northern Ireland) 1966.
(1952), most recently reviewed the High Court in 1998. Three key issues were thrown into focus:
, the mental element
for murder, could be attributed to the defendant if death was caused during the commission of another felony
(such as robbery
or burglary
). Section 1 of the Act abolished constructive malice except where the intention
implicit in the other crime was an intention to kill or to do grievous bodily harm
. Thus, the automatic linkage between the other crime and the murder was broken, and juries were then required to consider more directly whether the accused was culpable when engaging in the conduct resulting in death. But this made the Act unclear in its effect. Although the marginal note to the section purports to abolish the doctrine of "constructive malice", it did not abolish the concept of felony, the rules relating to the arrest of felons or the general rules specifying the test for the mental element which the juries were to apply. Hence, the Act did not abolish the principles of expressed malice or implied malice, i.e. malice could be implied by the words and expressions used by the accused, or there was a set of circumstances from which malice could be implied. These were objective tests that enabled the court to impute or "construct" the malice. This continuing common law was the basis of the decision in DPP v Smith where the Lords confirmed that neither expressed nor implied malice had been repealed by the section. It was not until the Criminal Law Act 1967
abolished the distinction between felonies and misdemeanours that the old common law rules on malice for the proof of mens rea in felonies could no longer apply.
This defence is distinguishable from the defence of insanity
for while the former requires a substantial impairment of mental responsibility arising from an abnormality of the mind, the latter requires a defect of reason arising from a disease of the mind. Broadly, the difference is that diminished responsibility is characterised by a temporary emotional or mental state which causes the accused to lose control over whether and how to act, whereas insanity is any inherent (internal) defect which so radically affects the defendant that he or she does not understand what is being done or that it is legally wrong to do it (other conditions may cause the accused to become an automaton, i.e. to be unable to control her/his body's movements, see automatism
and its case law
). A further distinction is that the defence of diminished responsibility reduces a murder charge to voluntary manslaughter, whereas the defence of insanity excuse
s the accused of all guilt (but may require the accused to be placed in special care, say, by imposing a hospital order under section 37 of the Mental Health Act 1983
, and automatism results in a complete acquittal.
An abnormality of the mind is a "state of mind so different from that of ordinary human beings that the reasonable man would term it abnormal". This can arise from a mental incapacity to reason properly or from an inability to exercise willpower to control physical acts. Examples of an abnormality of the mind included:
Intoxication
may not constitute an abnormality of the mind unless the craving for alcohol has become involuntary (R v Tandy [1989]).
There must be a "substantial" impairment of mental responsibility. Whether the impairment is "substantial" is defined either according to a common-sense standard or as "more than some trivial degree of impairment but less than total impairment" (R v Lloyd [1967]).
because the defendant does not have the capacity to choose whether to break the law or not. The defence of provocation was based on the argument that a person who was so provoked as to completely lose their self-control should not be punished in the same way as those who murder wilfully. The defence was available under common law where the accused was provoked to lose his self-control. Provocation could be caused by things done or things the accused heard or said himself. The jury then decided whether the provocation would have been sufficient to cause a reasonable man to lose his self-control. If so, the charge could be reduced from murder to voluntary manslaughter. The accused needed adduce only prima facie
evidence of provocation. It was then up to the prosecution to prove beyond reasonable doubt that the accused was not provoked. Two conditions had to be satisfied:
It was thus possible for a person to have been subjectively provoked but not objectively provoked (e.g. a particularly sensitive person) or to have been objectively provoked but not subjectively provoked (e.g. a particular insensitive person). It was also possible for the provocation to have been built up over a period of time, provided that the outburst was sudden and temporary (R v Ahluwalia [1992]).
Section 3 of the Act made "the question whether the provocation was enough to make a reasonable man do as he did" the jury's responsibility. Previously this decision could be withdrawn from the jury by the judge.
In 2004 the Law Commission recommended substantial revision to this defence in their report on Partial Defences to Murder. Section 3 was repealed on 4 October 2010 by section 56(2)(a) of the Coroners and Justice Act 2009
.
. After decades of campaigning, abolitionists secured a partial victory with the Act, which limited the circumstances in which murderers could be executed, requiring mandatory life imprisonment in all other cases.
Section 5 – Capital murder
This section created a new offence of capital murder. A person was guilty of this offence if he committed murder in one of five situations:
Forms of indictment for this offence were provided by S.I. 1957/699.
Section 6 – Death penalty for repeated murders
This section required the death penalty for anyone convicted of two murders committed on two separate occasions, provided both murders were committed in Great Britain
.
Section 7 – Abolition of the death penalty for other murders
All other murders were to be punished with mandatory life imprisonment.
until 1998). The last executions were in 1964. The penalty today is life imprisonment under the Murder (Abolition of Death Penalty) Act 1965.
as per Home Office approved protocol.
s.14
s.15
Act of Parliament
An Act of Parliament is a statute enacted as primary legislation by a national or sub-national parliament. In the Republic of Ireland the term Act of the Oireachtas is used, and in the United States the term Act of Congress is used.In Commonwealth countries, the term is used both in a narrow...
of the Parliament
Parliament
A parliament is a legislature, especially in those countries whose system of government is based on the Westminster system modeled after that of the United Kingdom. The name is derived from the French , the action of parler : a parlement is a discussion. The term came to mean a meeting at which...
of the United Kingdom
United Kingdom
The United Kingdom of Great Britain and Northern IrelandIn the United Kingdom and Dependencies, other languages have been officially recognised as legitimate autochthonous languages under the European Charter for Regional or Minority Languages...
. It was enacted as a partial reform of the common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
offence of murder in English law
Murder in English law
Murder is an offence under the common law of England and Wales. It is considered the most serious form of homicide, in which one person kills another either intending to cause death or intending to cause serious injury .-Actus reus:The definition of the actus reus Murder is an offence under the...
by abolishing the doctrine of constructive malice (except in limited circumstances), reforming the partial defence of provocation
Provocation in English law
In English law, provocation was a mitigatory defence alleging a total loss of control as a response to another's provocative conduct sufficient to convert what would otherwise have been murder into manslaughter. It does not apply to any other offence. It was abolished on 4 October 2010 by of the...
, and by introducing the partial defences of diminished responsibility
Diminished responsibility in English law
In English law, diminished responsibility is one of the partial defences that reduce the offence from murder to manslaughter if successful . This allows the judge sentencing discretion, e.g. to impose a hospital order under section 37 Mental Health Act 1983 to ensure treatment rather than...
and suicide pact
Suicide pact
A suicide pact is an agreed plan between two or more individuals to commit suicide. The plan may be to die together, or separately and closely timed. Suicide pacts are important concepts in the study of suicide, and have occurred throughout history, as well as in fiction.Suicide pacts are generally...
. It restricted the use of the death penalty for murder.
Similar provisions to Part I of this Act was enacted for Northern Ireland
Northern Ireland
Northern Ireland is one of the four countries of the United Kingdom. Situated in the north-east of the island of Ireland, it shares a border with the Republic of Ireland to the south and west...
by Part II of the Criminal Justice Act (Northern Ireland) 1966.
History
In part, the Act was a response to the case of R v Derek William BentleyDerek Bentley
Derek William Bentley was a British teenager hanged for the murder of a police officer, committed in the course of a burglary attempt. The murder of the police officer was committed by a friend and accomplice of Bentley's, Christopher Craig, then aged 16. Bentley was convicted as a party to the...
(1952), most recently reviewed the High Court in 1998. Three key issues were thrown into focus:
- constructive malice: the trial judge ruled that there was no defence to the charge of murder once the parties were found engaged in a common purposeCommon purposeThe doctrine of common purpose, common design or joint enterprise is a legal doctrine in some common law jurisdictions which imputes criminal liability on the participants to a criminal enterprise for all that results from that enterprise...
to use some violence to resist arrest. The mens reaMens reaMens rea is Latin for "guilty mind". In criminal law, it is viewed as one of the necessary elements of a crime. The standard common law test of criminal liability is usually expressed in the Latin phrase, actus non facit reum nisi mens sit rea, which means "the act does not make a person guilty...
(LatinLatinLatin is an Italic language originally spoken in Latium and Ancient Rome. It, along with most European languages, is a descendant of the ancient Proto-Indo-European language. Although it is considered a dead language, a number of scholars and members of the Christian clergy speak it fluently, and...
for "guilty mind") of murder then included:
-
- an intent to commit any felony whatever, and
- an intent to oppose by force any officer of justice ... in ... the execution of [his duty] provided the offender has notice that the person killed is such an officer so employed;
- Derek Bentley had a mental age of no more than 11 but that fact was irrelevant because the death sentence was mandatory following a murder conviction - judges had no discretion.
- It is also said that the Act was partially a response to the campaigns surrounding the execution of Ruth EllisRuth EllisRuth Ellis , née Neilson, was the last woman to be executed in the United Kingdom. She was convicted of the murder of her lover, David Blakely, and hanged at Holloway Prison, London, by Albert Pierrepoint.-Biography:...
, it was directly related to the campaigns led by Sidney Silverman in 1955–56 for total abolition of capital punishment.
Part I – Amendments to the law of England and Wales as to the fact of Murder
This Part does not extend to Scotland.Section 1 – Abolition of constructive malice
Constructive malice was the doctrine that malice aforethoughtMalice aforethought
Malice aforethought is the "premeditation" or "predetermination" that was required as an element of some crimes in some jurisdictions, and a unique element for first-degree or aggravated murder in a few.-Legal history:...
, the mental element
Mens rea
Mens rea is Latin for "guilty mind". In criminal law, it is viewed as one of the necessary elements of a crime. The standard common law test of criminal liability is usually expressed in the Latin phrase, actus non facit reum nisi mens sit rea, which means "the act does not make a person guilty...
for murder, could be attributed to the defendant if death was caused during the commission of another felony
Felony
A felony is a serious crime in the common law countries. The term originates from English common law where felonies were originally crimes which involved the confiscation of a convicted person's land and goods; other crimes were called misdemeanors...
(such as robbery
Robbery
Robbery is the crime of taking or attempting to take something of value by force or threat of force or by putting the victim in fear. At common law, robbery is defined as taking the property of another, with the intent to permanently deprive the person of that property, by means of force or fear....
or burglary
Burglary
Burglary is a crime, the essence of which is illicit entry into a building for the purposes of committing an offense. Usually that offense will be theft, but most jurisdictions specify others which fall within the ambit of burglary...
). Section 1 of the Act abolished constructive malice except where the intention
Intention in English law
In English criminal law, intention is one of the types of mens rea that, when accompanied by an actus reus , constitutes a crime.-The standard definitions:...
implicit in the other crime was an intention to kill or to do grievous bodily harm
Grievous bodily harm
Grievous bodily harm is a term of art used in English criminal law which has become synonymous with the offences that are created by sections 18 and 20 of the Offences against the Person Act 1861....
. Thus, the automatic linkage between the other crime and the murder was broken, and juries were then required to consider more directly whether the accused was culpable when engaging in the conduct resulting in death. But this made the Act unclear in its effect. Although the marginal note to the section purports to abolish the doctrine of "constructive malice", it did not abolish the concept of felony, the rules relating to the arrest of felons or the general rules specifying the test for the mental element which the juries were to apply. Hence, the Act did not abolish the principles of expressed malice or implied malice, i.e. malice could be implied by the words and expressions used by the accused, or there was a set of circumstances from which malice could be implied. These were objective tests that enabled the court to impute or "construct" the malice. This continuing common law was the basis of the decision in DPP v Smith where the Lords confirmed that neither expressed nor implied malice had been repealed by the section. It was not until the Criminal Law Act 1967
Criminal Law Act 1967
The Criminal Law Act 1967 is an Act of the Parliament of the United Kingdom. However, with some minor exceptions, it generally applies to only England and Wales. It made some major changes to English criminal law...
abolished the distinction between felonies and misdemeanours that the old common law rules on malice for the proof of mens rea in felonies could no longer apply.
Voluntary manslaughter defences
The Act created two partial defences—diminished responsibility and suicide pact—to murder which, if satisfied, reduce a charge of murder to a charge of manslaughter. It also changed the law of another partial defence to murder provocation.Diminished responsibility
In 1953 the Report of the Royal Commission on Capital Punishment took the view that mental abnormality which resulted in a diminished responsibility, was relatively common and potentially of importance to a wide range of offences. The Commission therefore asserted that a “radical” amendment to the existing law would not be justified for the “limited” purpose of enabling the courts to avoid imposing the death sentence. Parliament was not impressed and section 2 of the Act now provides that diminished responsibility is available as a defence where the accused was, at the time of the offence, suffering from an "abnormality of the mind" which substantially impaired his mental responsibility for his acts or omissions resulting in murder. The burden of proof is on the accused to show that she/he was suffering from diminished responsibility.This defence is distinguishable from the defence of insanity
M'Naghten Rules
The M'Naghten rules were a reaction to the acquittal of Daniel McNaughton. They arise from the attempted assassination of the British Prime Minister, Robert Peel, in 1843 by Daniel M'Naghten. In fact, M'Naghten fired a pistol at the back of Peel's secretary, Edward Drummond, who died five days later...
for while the former requires a substantial impairment of mental responsibility arising from an abnormality of the mind, the latter requires a defect of reason arising from a disease of the mind. Broadly, the difference is that diminished responsibility is characterised by a temporary emotional or mental state which causes the accused to lose control over whether and how to act, whereas insanity is any inherent (internal) defect which so radically affects the defendant that he or she does not understand what is being done or that it is legally wrong to do it (other conditions may cause the accused to become an automaton, i.e. to be unable to control her/his body's movements, see automatism
Automatism (law)
-Definition:Automatism is a rarely used criminal defence. It is one of the mental condition defences that relate to the mental state of the defendant. Automatism can be seen variously as lack of voluntariness, lack of culpability or excuse...
and its case law
Automatism (case law)
Automatism is a rarely used criminal defence which denies that the accused was criminally responsible for his or her actions. The term automatism was first used in the trial of Harrison-Owen in 1951, although accused persons had been exonerated on grounds of automatic behaviour before then e.g...
). A further distinction is that the defence of diminished responsibility reduces a murder charge to voluntary manslaughter, whereas the defence of insanity excuse
Excuse
In jurisprudence, an excuse or justification is a defense to criminal charges that is distinct from an exculpation. In this context, "to excuse" means to grant or obtain an exemption for a group of persons sharing a common characteristic from a potential liability. "To justify" as in justifiable...
s the accused of all guilt (but may require the accused to be placed in special care, say, by imposing a hospital order under section 37 of the Mental Health Act 1983
Mental Health Act 1983
The Mental Health Act 1983 is an Act of the Parliament of the United Kingdom which applies to people in England and Wales. It covers the reception, care and treatment of mentally disordered persons, the management of their property and other related matters...
, and automatism results in a complete acquittal.
Abnormality of the mind
An abnormality of the mind is a "state of mind so different from that of ordinary human beings that the reasonable man would term it abnormal". This can arise from a mental incapacity to reason properly or from an inability to exercise willpower to control physical acts. Examples of an abnormality of the mind included:
- post-natal depression (R v Reynolds [1988])
- battered woman syndromeBattered woman defenceThe battered woman defense is a defense used in court that the person accused of an assault / murder was suffering from battered person syndrome at the material time. Because the defense is most commonly used by women, it is usually characterised in court as battered woman syndrome or battered wife...
(R v Ahluwahlia [1992]; R v Hobson [1998]) - excessive jealousy (R v Vinagre [1979])
Intoxication
Intoxication defense
General intent crimes do not require an intent to break the law, just an unlawful act and an intent to act in such a fashion. Specific intent crimes, however, require a certain mental state to break the law. One such offense, for example, is residential burglary...
may not constitute an abnormality of the mind unless the craving for alcohol has become involuntary (R v Tandy [1989]).
Substantial impairment of mental responsibility
There must be a "substantial" impairment of mental responsibility. Whether the impairment is "substantial" is defined either according to a common-sense standard or as "more than some trivial degree of impairment but less than total impairment" (R v Lloyd [1967]).
Section 3 - Provocation
Provocation can be distinguished from diminished responsibility which recognises a reduction in culpabilityCulpability
Culpability descends from the Latin concept of fault . The concept of culpability is intimately tied up with notions of agency, freedom and free will...
because the defendant does not have the capacity to choose whether to break the law or not. The defence of provocation was based on the argument that a person who was so provoked as to completely lose their self-control should not be punished in the same way as those who murder wilfully. The defence was available under common law where the accused was provoked to lose his self-control. Provocation could be caused by things done or things the accused heard or said himself. The jury then decided whether the provocation would have been sufficient to cause a reasonable man to lose his self-control. If so, the charge could be reduced from murder to voluntary manslaughter. The accused needed adduce only prima facie
Prima facie
Prima facie is a Latin expression meaning on its first encounter, first blush, or at first sight. The literal translation would be "at first face", from the feminine form of primus and facies , both in the ablative case. It is used in modern legal English to signify that on first examination, a...
evidence of provocation. It was then up to the prosecution to prove beyond reasonable doubt that the accused was not provoked. Two conditions had to be satisfied:
- Subjective condition. For the jury to find provocation, they had to be satisfied that the accused was actually provoked and lost self-control (R v Duffy [1949]). This was a subjective test based solely on the actual effect the behaviour of the victim had on the accused.
- Objective condition. The jury had also to find that the reasonable personReasonable personThe reasonable person is a legal fiction of the common law that represents an objective standard against which any individual's conduct can be measured...
would have done as the defendant did (R v Duffy [1949]).
It was thus possible for a person to have been subjectively provoked but not objectively provoked (e.g. a particularly sensitive person) or to have been objectively provoked but not subjectively provoked (e.g. a particular insensitive person). It was also possible for the provocation to have been built up over a period of time, provided that the outburst was sudden and temporary (R v Ahluwalia [1992]).
Section 3 of the Act made "the question whether the provocation was enough to make a reasonable man do as he did" the jury's responsibility. Previously this decision could be withdrawn from the jury by the judge.
In 2004 the Law Commission recommended substantial revision to this defence in their report on Partial Defences to Murder. Section 3 was repealed on 4 October 2010 by section 56(2)(a) of the Coroners and Justice Act 2009
Coroners and Justice Act 2009
-External links:*, as amended from the National Archives.*, as originally enacted from the National Archives.* to the Coroners and Justice Act 2009....
.
Suicide pact
Parliament's intention in section 4 was to show some compassion for those who had been involved in a suicide pact but failed to die. The reason for the failure might be that the means adopted proved inadequate or the survivor's commitment was fragile. In either event, the trauma of involvement in such a pact was considered equivalent to a punishment and that the mandatory life sentence of murder was an inappropriate sentence for such defendants. Thus the Act provides that where the accused kills a person, or is party to a person being killed, while acting in accordance with a suicide pact, the charge will be reduced from murder to manslaughter. A 'suicide pact' is a common agreement between two or more persons providing for the death of all those persons (whether they should take their own lives or those of each other). It is a requirement of the defence that the accused herself/himself had a "settled intention of dying in pursuance of the pact". This is to avoid the accused entering into a supposed pact with the real intention of committing murder. The burden is on the accused to prove that she/he:- was party to a suicide pact, and
- had a settled intention of dying.
Part II – Liability to the death penalty
Until the Homicide Act was passed the mandatory penalty for all adults convicted of murder was death by hangingHanging
Hanging is the lethal suspension of a person by a ligature. The Oxford English Dictionary states that hanging in this sense is "specifically to put to death by suspension by the neck", though it formerly also referred to crucifixion and death by impalement in which the body would remain...
. After decades of campaigning, abolitionists secured a partial victory with the Act, which limited the circumstances in which murderers could be executed, requiring mandatory life imprisonment in all other cases.
Section 5 – Capital murder
This section created a new offence of capital murder. A person was guilty of this offence if he committed murder in one of five situations:
- Murder in the course or furtherance of theft; s.5(1)(a)
- Murder by shooting or by causing an explosion; s.5(1)(b)
- Murder in the course or for the purpose of resisting, avoiding or preventing a lawful arrest, or of effecting or assisting an escape or rescue from legal custody; s.5(1)(c)
- Murder of a police officer acting in the execution of his duty, or of a person assisting a police officer so acting; s.5(1)(d)
- Murder of a prison officer acting in the execution of his duty, or of a person assisting a prison officer so acting, by a person who was a prisoner at the time when he did or was a party to the murder; s.5(1)(e).
Forms of indictment for this offence were provided by S.I. 1957/699.
Section 6 – Death penalty for repeated murders
This section required the death penalty for anyone convicted of two murders committed on two separate occasions, provided both murders were committed in Great Britain
Great Britain
Great Britain or Britain is an island situated to the northwest of Continental Europe. It is the ninth largest island in the world, and the largest European island, as well as the largest of the British Isles...
.
Section 7 – Abolition of the death penalty for other murders
All other murders were to be punished with mandatory life imprisonment.
Abolition of the death penalty
The death penalty for murder was suspended for five years in 1965, and permanently abolished in 1969 (although it still remained for treasonTreason
In law, treason is the crime that covers some of the more extreme acts against one's sovereign or nation. Historically, treason also covered the murder of specific social superiors, such as the murder of a husband by his wife. Treason against the king was known as high treason and treason against a...
until 1998). The last executions were in 1964. The penalty today is life imprisonment under the Murder (Abolition of Death Penalty) Act 1965.
Part III – Form and execution of the death sentence in England and Wales
Death by hangingHanging
Hanging is the lethal suspension of a person by a ligature. The Oxford English Dictionary states that hanging in this sense is "specifically to put to death by suspension by the neck", though it formerly also referred to crucifixion and death by impalement in which the body would remain...
as per Home Office approved protocol.
Part IV – Application to, and special provisions for, Scotland
s.13 This Act shall not apply to Scotland. (repealed 1965) Subsection (1) of this section does not affect courts-martial.s.14
s.15
External links
.- The Homicide Act 1957, as amended, from the Office of Public Sector InformationOffice of Public Sector InformationThe Office of Public Sector Information is the body responsible for the operation of Her Majesty's Stationery Office and of other public information services of the United Kingdom...
.