Is murder a question of degree?

IT was part of the horse-trading around the time of the abolition of capital punishment in the 1960s. To counter those who feared the country was going soft on crime, and who were predicting a huge leap in the number of unlawful deaths, the mandatory life sentence was introduced for all those convicted of murder.

Even though the recommended tariff - the minimum sentence the offender should serve - was set by the trial judge, the automatic life sentence aimed both to reinforce the seriousness of the crime, and act as a deterrent to possible future offenders.

Now, 40 years on, that mandatory life sentence is under review. The Law Commission, the body which advises the Government on law reform, has recommended confining it only to those cases where the offender intended to kill, so called "first degree" murder.

Killers who intended to cause their victims "serious harm" but did not intend to kill, would be prosecuted for "second degree" murder, an offence which would not carry an automatic life sentence. This category would also include those who caused death through "reckless indifference" or those who were provoked, suffering diminished responsibility or were under duress.

The changes, part of the first wholesale examination of the murder laws for more than 50 years, would also see more people prosecuted for manslaughter instead of murder, where they caused death by "gross negligence" or by intending to cause harm.

The proposals have already been attacked as downgrading the seriousness of murder, and representing a licence to murder, but campaign group, the Howard League for Penal Reform, says a change in the law is long overdue.

'We welcome a sensible debate about how the law should be changed to recognise that the overwhelming majority of people convicted of murder have killed the one they love," says director Frances Crook. "It is usually a very complex tragedy and we need to look at how to change the law to reflect that."

She says the law fails to take into account how many murders are committed during times of extreme stress. "Murder is very complicated but the law is a blunt instrument," she says.

"The law doesn't discriminate between someone who kills several strangers in cold blood and a woman who kills a man who has been abusing her for years or a man who gets drunk and kills in a rage."

Former Lord Chief Justice Lord Woolf is among those already on record as opposing mandatory sentences, and Director of Public Prosecutions Ken Macdonald has supported a recognition of different degrees of murder.

Fewer than 30 prisoners in the UK have been sentenced to life with no possibility of release, among them Mark Hobson, who was jailed in May for the murders of Claire Sanderson and her twin sister Diane at Camblesforth, near Selby in North Yorkshire, and of pensioners Joan and James Britton at Strensall, near York. Last month Hobson, now 36, lost his appeal against his whole-life sentence. Other killers serving whole-life terms include Ian Brady, Rose West and Dennis Nilsen.

Although the nature of the offence is often reflected in the tariff set by the trial judge, the life term still applies, and even if the offender is released from prison they are on licence and subject to recall at any time. And, in practice, the fact that many prisoners end up serving longer than their tariff has less to do with justice than with delays in the system.

"Of course the law should reflect the seriousness of the crime," Ms Crook says. "We have more life sentence prisoners than the whole of Western Europe put together, and our system is so clogged up that a judge can set a tariff of five years but you are likely to serve ten because the administration is so chaotic. The whole system is unfair and at breaking point."

The review of the murder law came after Solicitor General Harriet Harman failed to persuade then Home Secretary David Blunkett to change the law on provocation. In the past, this has allowed men who killed their partners in a fit of jealousy successfully to plead provocation and change their murder charge to manslaughter.

In July 2002, Leslie Humes was convicted of manslaughter for stabbing his wife Melanie 12 times with a knife after she told him she didn't love him. She died later in hospital. But women who kill their partners after years of abuse have been convicted of murder, on the grounds that the killing has been premeditated and not in the middle of an argument.

Among these has been Kiranjit Ahluwalia, who set fire to her husband's bed after ten years of violence and sexual abuse. She was jailed for life, and it was only at a retrial that she was instead found guilty of manslaughter due to diminished responsibility.

Emma Humphreys spent ten years in jail after she was convicted of murdering a man who repeatedly subjected her to physical and sexual abuse before she won her appeal on the grounds of cumulative provocation, and Sara Thornton was convicted of manslaughter at a retrial, after serving five and a half years of a life sentence imposed for the murder of her violent husband.

It is cases such as these which make a change in the law long overdue, according to Jill Radford, head of the Centre for the Study of Gender Violence and Gender Justice at Teesside University. "It means men are walking away with murder and women are being given life sentences. The existing laws around self-defence are failing women," she says.

She says the law on self-defence owed its origins to codes of medieval combat, when the person who picked up a weapon was the aggressor. But a woman picking up a weapon should be seen as equalising the imbalance in power, rather than upping the ante.

Until Kiranjit Ahluwalia, self-defence could only be used in the face of immediate provocation. Her appeal and then conviction for manslaughter in 1992 was the first step in changing the way the law was applied. And the Emma Humphreys case subsequently introduced the concept of cumulative provocation.

"The courts recognised that a woman's anger can be more slow burning, because in Kiranjit Ahluwalia waited until her husband was asleep before she fought back," says Professor Radford. "And then the court recognised that previous attacks can feed into the anger and be responded to.

"Previously, the law only looked at the ten minutes surrounding the fatal incident, not at whether a woman had been subjected to a lifetime of violence and sexual abuse. But while it made the provocation defence viable, relaxing it also made it easier for men who were already finding it too easy to use."

Now it seems that instead of piecemeal changes, prompted by the circumstances of individual cases, there could be a radical overhaul of our murder laws, the most dramatic changes since the death penalty was abolished. The Law Commission's proposals will now be put for consultation before firm recommendations are presented to the Home Office next autumn. Then, progress will depend on whether the Government is willing to brave the outcry from those who will say it is going soft on crime.