•
Sir Oliver Heald QC MP
Ministry
of Justice
Minister of State for Justice
MoJ ref:
Bob Neill MP.
Chairman
Justice Committee
House of Commons
London SW1A OAA
Z.. 'f· October 2016
LAW OF HOMICIDE Thank you for your letter of 23 September, following my evidence session before the Comn:iittee on 14
September. I was delighted to have the opportunity to engage in a discussio~ on this important topic,
particularly at an early stage in my appointment as Minister of State.
I understand that the Justice Select Committee rightly places great importance on the law of homicide and
I note its sympathy for the Law Commission's 2006 proposals for reforming the current legal framework.
The Government also places great importance on this area of law, particularly when it comes to making
sure that the legislativ~ framework reflects the seriousness of these offences.
In their evidence to the Committee, Professor Ormerod for the Law Commi~sion and Mr Bogan for the
Criminal Bar Association confirmed their view that the law of homicide js unclear and is based on "rickety
foundations". Professor Ormerod in particular suggested that the time is ripe for the Law Commission to
revisit its proposal for a three-tier framework for homicide, set out in its Report of 2006.
As you say, Mr Bogan argued that greater clarity in homicide law would prevent current difficulties with
and arguments about the judge's directions to the jury in these cases, which he states are 'invariably'
referred to in any grounds of appeal. He also said that around·50% of murder convictions result in appeal,
and agreed with your description that this is a disproportionate number of appeals. Mr Bogan added that,
if an appeal is heard, the judges' directions to the.jury may be criticised by the Court of Appeal, and that
"there is at least the risk of injustice byjuries not following or not understanding the guidance they are
given by the judiciary". Clearly any such possible injustice would be a matter of considerable concern to
the Government. I do wonder, however, whether the apparently high number of appeals at least partly
reflects the gravity of a murder conviction and the potential sentence that the offender is facing, rather
than any clear defipiency in the judge's directions given to juries during the trial. Professor Ormerod, as
you say, saw an additional problem of a lack of public confidence that the offence of murder covers the
right cases.
The judiciary are independent of Government, so it is not for me to comment on their behalf in response
to points made to the Committee. Undoubtedly the law relating to murder and manslaughter is complex. I
understand that judges who try such cases are specially selected and trained. Following the Constitutional
Reform Act 2005, responsibility for the training of judges rests with the Lord Chief Justice and this is
exercised through the Judicial College. The Judicial College hold an annual residential seminar devoted
to serious crime, with a particular focus on cases of homicide, which is attended by High Court Judges
and those senior Circuit Judges who are authorised to try cases of murder and manslaughter.
T 020 3334 3555
F 0870 761 7753
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www.gov.uk/moj
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The seminar is concerned in part with the summing up in cases of murder. Much of the seminar is
conducted in small group sessions in which judges discuss case studies devised to highlight particular
problematic issues, and where the judges are required to prepare the appropriate direction to the jury
based on the facts as presented in the case study. The training promotes the use of written directions on
the law supplied to the jury in line with the recommendations made by Sir Brian Leveson's 2015 "Review
of Efficiency in Criminal Proceedings" and the Criminal Practice Direction issued by the Lord Chief
Justice.
In addition, earlier this year the Judicial College published a Crown Court Compendium which was
designed to meet the needs of judges sitting in the Crown Court in providing clear directions to juries in all
cases. The compendium was reviewed by those judges who lead on training; Court of Appeal judges, and
the Lord Chief Justice. Professor Cheryl Thomas also played a key role in the compendium drafting, as
did the Plain English campaign. In view of this, I am content that the judiciary are already doing everything
possible to play their part in managing these trials well and in assisting the jury.
As I made clear in my evidence, while I will continue to keep an open mind on this matter, I do not share
the concerns of your other witnesses, or of some members of the Committee, that the law of homicide is
in urgent need of reform. It covers all relevant areas of criminality and there are, as far as the Government
is aware, no immediate legislative gaps which need to be filled. In addition there has been very little
demand from the public for a review of the law of homicide in the last few years. As to whether that law is
generally well understood, above all by juries, as I said in my evidence, while there are some obvious
areas of complexity, I think juries understand what is required of them in a case where the issue is
whether an unlawful killing has be~n prompt~ by an intention to kill or to cause grievous bodily harm.
Indeed, I remain unconvinced that the Law Commission's proposals would not themselves present
difficulties in allowing clear directions to juries in this complex and delicate area of law.
Moreover, as you acknowledge, the evidence session confirmed the Law Commission's proposal is not the only proposal for reform. Indeed, even among supporters of a 'three tier structure', there is no clear , consensus about where the boundaries should be drawn. There would also undoubtedly be some public concern about any proposed changes to the categories of homicide which could appear to dilute the
seriousness of, or affect the sentence in, any particular case.
Finally on this issue, I do have to consider whether a further review of the law of homicide, starting as you
suggest with a public consultation, is feasible in the near future, in the context of the Department's already
full programme of reform and legislation. Such a review would require significant resource, which is not
currently available. Realistically, therefore, I am unable to give a commitment to conducting a review in
this area at this time.
I now tum to the questions of joint enterprise and one punch manslaughter cases, where I know you are
awaiting responses (though in fact the Justice Secretary referred to both these issues in her letter to you
of 29 July). The Government is still carefully considering the implications of the Jogee judgment, although
it does not seem that any further review of the law in this area will be necessary. We will write to the
Committee as soon as we have reached a conclusion on this point. On one-punch manslaughter, the
Government recognises that there remains clear concern about the sentences imposed in these cases
and agrees that a sentencing guideline would assist the courts and be helpful to the public. The
Sentencing Council is currently developing a senten~ing guideline for manslaughter, which will be subject
to full public consultation, scheduled to take place next year. The Government's next step will be to
respond to that consultation.
Thank you again for the Committee's ~nga
ment with these issues, and for inviting me to give evidence.
e....n,-
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{/L:_ SIR OLIVER HEALD QC MP 2