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The Homicide Act 1957
Published online by Cambridge University Press: 16 January 2009
Extract
So far as the law of England and Wales is concerned the Homicide Act, 1957, can be divided into two distinct parts. Part I of the Act makes certain reforms in the law of murder whether or not the murder be capital or non-capital. These reforms are important in themselves quite apart from the controversy in relation to the death penalty. Part II of the Act restricts the death penalty as the punishment to be imposed by the courts for the crime of murder to (a) certain kinds of murder defined in section 5 and called capital murder and (b) to murders by a person who has previously been convicted of murder as defined in section 6. For murders not falling within sections 5 and 6 of the Act the sentence “shall be imprisonment for life.”
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- Copyright © Cambridge Law Journal and Contributors 1957
References
1 Even in non-capital murders therefore murder retains its characteristic of an obligatory punishment and not one in the discretion of the court.
2 See R. v. Appleby (1940)Google Scholar 28 Cr.App.R. 1, and cf. Lord Goddard C.J. in R. v. Vickers [1957] 3 W.L.R. 326, 328Google Scholar where he uses the phrases “moderate or even small degree of violence,” “a little violence.”
3 The marginal note to section 1 states “abolition of constructive malice.” Prior to the Act the words “constructive” or “implied” were often used to cover these forms of malice aforethought, cf. Kenny, p. 122. After the Act it is likely that constructive will be used to describe these forms and implied will be reserved for intent to cause grievous bodily harm. cf. R. v. Vickers (and, in so far as it is a possible form of malice aforethought, knowledge that death will probably result from one's conduct vide infra).
4 [1957] 3 W.L.R. 326.
5 Cf. Report of the Royal Commission on Capital Punishment, Cmd. 8932 hereafter referred to as R.C.C.P., § 472, where the Royal Commission stated: “We believe that few people would dispute the propriety of making the definition of murder wide enough to include cases where death is caused by an act intended to cause serious bodily injury…. We should … prefer to limit murder to cases whereby the act by which death is caused is intended to kill or to ‘endanger life’ or is known to be likely to kill or endanger life. But we do not believe that if this change were made, it would lead to any great difference in the day-to-day administration of the law. Our impression is that in practice the courts have been moving in this direction and that today, except in certain cases of killing whilst committing a felony or resisting arrest, a person would seldom, if ever, be convicted of murder unless there was evidence that he had wilfully put life in jeopardy … We think that in this matter further progress may be left to the courts and to the development of the common law.”
6 [1909] 1 K.B. 895, 899. One point which tended to cause confusion of the two standards was the suggestion that because wounding and causing grievous bodily harm with intent to cause grievous bodily harm was a felony under s. 18 of the Offences against the Person Act an injury sufficient for this felony would be sufficient for murder under the felony-murder rule (cf. Stephen, Digest, pp. 479–480). This has been eliminated by the enactment of s. 1, Homicide Act. Cf. R. v. Vickers.
7 [1949] 2 All E.R. 662.
8 (1887) 16 Cox C.C. 311.
9 [1909] 1 K.B. 895, 899.
10 [1920] A.C. 479.
11 (1040) 28 Cr.App.R. 1.
12 (1930) 22 Cr.App.R. 148.
13 This is quite apart from the Homicide Act, s. 5 (2) where an accomplice guilty of murder will not be guilty of capital murder where the murder falls within s. 5 (1) unless he by “his own act caused the death of, or inflicted or attempted to inflict grievous bodily harm on, the person murdered, or who himself used force on that person in the course or furtherance of an attack on him.”
14 This may have civil consequences, e.g., as regards succession to the property of the deceased.
15 The Royal Commission on Capital Punishment spoke of certifiable insanity as meaning “that the patient is suffering from a major mental disease (usually a psychosis) to such a degree that restriction of his liberty is justified in his own or the public interest and he can therefore be properly certified under the Lunacy Acts”: R.C.C.P. § 212.
16 The words in brackets are possibly limitative words denning the abnormality of mind, cf. Hansard H.C.Deb. (1956–1957) Vol. 560, c. 1252 (The Att.-Gen.). They borrow from the wording of the Mental Deficiency Act, 1927, s. 1 (2). It is clear that s. 2 of the Homicide Act will cover mental deficiency causing diminished responsibility, whereas for insanity within the M'Naghten Rules the Royal Commission on Capital Punishment regarded it as doubtful. The words “inherent causes” would seem to mean abnormality of mind arising from causes existing in the mind as permanent attributes, cf. O.E.D. The words “disease or injury” are wide enough to cover disease or injury of any part of the body or brain which might affect the mind so as to cause abnormality. Cf. R. v. Kemp [1957] 1 Q.B. 399Google Scholar; Hansard H.C.Deb. (1956–1957), Vol. 561, c. 486.
17 H.M. Advocate v. Savage 1923Google Scholar J.C. 49 approved H.M. Advocate v. Braithwaite, 1945Google Scholar J.C. 55. See R.C.C.P. at p. 392. The references to bordering on insanity in Scottish judgments mean bordering on certifiable insanity.
18 Carraher v. H.M. Advocate 1946Google Scholar J.C. 108. Cf. R.C.C.P. § 313. “The general consensus of psychiatric opinion does not regard an aggressive psychopath or a sadist—and still less a person who is hot-tempered or sexually unrestrained—as suffering from insanity or mental disease, and though it might sometimes be possible to find medical witnesses prepared to express such views, their evidence would be unlikely to find favour with the jury.” And see R.C.C.P. § 401, and Smith [1957] Crim.L.R. 359–360.
19 [1957] 3 W.L.R. 330. 333.
20 H.M. Advocate v. Braithwaite 1945Google Scholar J.C. 55.
21 Gf. R. v. Lesbini [1914] 3 K.B. 1116Google Scholar, R. v. Alexander (1913) 9 Cr.App.R. 139Google Scholar and quaere whether in such cases a defence of diminished responsibility would not now be available, its chances of success depending on the degree of abnormality of mind present.
22 §§ 264, 308 R.C.C.P., and Recommendation 18 R.C.C.P. at p. 276.
23 [1957] 3 W.L.R. 330.
24 [1943] K.B. 607.
25 Such a power in the judge was recommended by the Royal Commission, see R.C.C.P. Eecommendation 36. And see R. v. Kemp [1957] 1 Q.B. 399Google Scholar as to when the defence may be regarded as having raised the issue.
26 Although life imprisonment seems to have been imposed in the cases which have arisen so far.
27 See R. v. Kemp [1957] 1 Q.B. 399Google Scholar; Trial of Lunatics Act, 1883, s. 2. Hansard H.C.Deb. (1956–1957) Vol. 560. c. 1252. where the Attorney-General said: “if the defence raise any question as to the accused's mental capacity and evidence is called to show that he is suffering from a serious abnormality of mind, then if the evidence goes beyond a diminution of responsibility and really shows that the accused was insane within the M'Naghten Rules it would be right for the judge to leave it to the jury to determine whether the accused was, to use the old phrase, ‘guilty but insane’ or to return a verdict of manslaughter on the basis that although not insane he suffered from diminished responsibility.” As to recall of Crown witnesses, see Glanville Williams, Criminal Law: The General Part, p. 311, footnote 3, and see Griew, “Diminished Responsibility and the Trial of Lunatics Act, 1883,” [1957] Crim.L.R. 521–529.
28 R.C.C.P. § 288 and see Jackson, 11 C.L.J. 57–66.
29 [1946] A.C. 588, 597.
30 e.g., confessions of adultery (Holmes v. D.P.P. [1946] A.C. 588).Google Scholar
31 [1954] 1 W.L.R. 1119.
32 (1954) 38 Cr.App.R. 74.
33 (1957) 41 Cr.App.R. 80.
34 (1823) R. & R. 523.
35 [1944] 3 K.B. 295.
36 “Theft” is defined in s. 5 (5) as “theft includes any offence which involves stealing or is done with intent to steal.” Theft, which so far as England and Wales is concerned has not hitherto been a legal term but rather the popular term for the law's term “stealing,” was apparently used instead of stealing because this part of the Act applies also to Scotland. The Government in the debates on the Bill justified the retention of the death penalty in the classes specified in section 5 on the grounds that they were the cases where it was most needed and effective, i.e., as a deterrent against professional criminals carrying lethal weapons and as a protection of public servants who are particularly exposed to attack. Hansard H.C.Deb. (1956–1957), Vol. 560, c. 1148.