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Report No. 35

Topic Number 34(b)

Categories of murder-General discussion, and Homicide Act, 1957

636. Introductory.-

Several attempts have been made in the past to sub-divide murder into various degrees, according to the severity of the act, and to regulate punishment for it. It would be of interest to note these attempts, and to find out whether it is possible to arrive at a satisfactory sub-division.

637. 1866 Commission.-

In England, the Royal Commission on Capital Punishment of 1866 suggested the following formula1, for "first degree murders", which would be capital:-

(a) All murders deliberately committed with express malice aforethought, such malice to be found as a fact by the jury;

(b) All murders committed in or with a view to the preparation or escape after the perpetration or attempt at perpetration of any of the following felonies-murder, arson, rape, burglary, robbery, or piracy. The remaining murders would be second degree murders and non-capital. Some legislative proposals were introduced after this Report, but they did not become law.

1. Cited in R.C. Report of 1953, p. 470.

638. Subsequent Bills-Criminal Justice Bill.-

A number of Bills, under the title "Murder Law Amendment Bill" or "Homicide Law Amendment Bill" etc. were later introduced in 1867, 1871, 1877, 1878 and 19081, in England. It is unnecessary to go into details, but speaking roughly, in most of these cases the test was deliberate intention or association with other offences, or murder in the course of escaping from arrest, or murdering a constable, etc., acting in the discharge of his duty.

1. See R.C. Report, pp. 470, 471 for details

639. Criminal Justice Bill, 1948.-

The Criminal Justice Bill, 1948, as sought to be amended by the Government amendment may, however, be considered in detail. (This Bill, originally, contained no provision for the abolition of death penalty, though it was expected that it would contain such a provision in view of the resolution passed in the Commons in 1938. The Bill was introduced in October 1947, and Mr. Sydney Silver-man, in March 1948, moved a new clause proposing the suspension of capital punishment for an experimental period of five years in the case of death penalty for murder.

The clause was approved by the Commons, though not by the Lords, and the Bill came back to the Commons. Government, thereupon, thought of a compromise, and presented its proposal to the House of Commons through the Attorney-General, Sir Hartley Shaw cross1).

Briefly the Government proposed to maintain the death penalty for murders committed during certain specified offences (robbery, burglary and housebreaking, wounding or inflicting grievous bodily harm by three or more persons acting in concert, crime committed by means of explosives or other destructive substances, rape or indecent assaults on females and sodomy and indecent assaults on males and also murder committed in the course of systematic administration of poison or abnoxious substances or for resisting or avoiding arrest, etc., or by a prisoner on a prison officer, or murder by a person previously convicted of murder).

In these cases, the murder was capital, and in other cases, the sentence was imprisonment for life. The clause was passed by. the Commons. In the House of Lords, Lord Chancellor Viscount Jowitt supported the clause, and argued that capital punishment could be justified only if it helped to prevent murders, and the cases for which the death penalty would be retained in this proposal were those where it was believed that it acted as a deterrent. The basis was deterrence rather than some other criterion, such as pre-meditation or degree of moral guilt2. The clause, however, met with strong opposition, and was described as a "Murderer's Code" and dubbed as "illogical", and was ultimately deleted by a vote of 97 against 19 in the House of Lords.

1. See Elizabeth Turtle Crusade against Capital Punishment, (1961), pp. 55, 62.

2. Parliamentary Debates Lords, Vol. 157 (July 20, 1948), Cols. 1006, 1007, 1013; See also Elizabeth Turtle Crusade against Capital Punishment, (1961), p. 79.

640. Position in other countries-France.-

In some countries in Europe certain forms of intentional homicide are regarded as more heinous and punishable by death instead of imprisonment for life. As a typical example may be cited the law in France1. Murder (meurtre) is defined in Article 295 of the French Penal Code as homicide committed intentionally.

1. See R.C. Report, p. 443, and also p. 437, para. 12(c).

641. The following forms of intentional homicide are punishable in France by death:-

(i) "Assassinate"-Murder committed with premeditation or by lying in wait (Articles 296 and 302, French Penal Code).

(ii) Murder accompanied by torture or barbarity (Article 303, French Penal Code).

(iii) Murder preceded, accompanied or followed by another felony (Article 304, French Penal Code).

(iv) Murder of a magistrate, public officer, police officer or person performing some public duty, if he is assaulted in the exercise of his duty or on the occasion of it (Article 233, French Penal Code).

(v) "Parricide"-murder of a father, mother or ancestor (Articles 299 and 302, French Penal Code).

(vi) Murders the purpose whereof is to prepare, facilitate or commit a misdemeanour or to further the escape, etc., of a principal or accessory to the misdemeanour (Article 304, French Penal Code).

(vii) "Poisoning", (defined as any attempt on the life of a person by means of any substance which can cause death more or less quickly, irrespective of the manner in which the substance was used or administered or the result of its administration) (Articles 301 and 302, French Penal Code).

642. U.S.A.-

In several States in the United States of America,1 murder has been classified into degrees. While the punishment for "first degree murder" is death or imprisonment for life, that for second degree murder is imprisonment for life (or a lesser period, in some cases). As an example, may be quoted section 4701 of the Penal Code of Pennsylvania, under which all murder which should be perpetrated by means of poison or by lying in wait or by any other kind of wilful, deliberate and premeditated killing or which shall be committed in the perpetration of or attempting to perpetrate any arson, rape, robbery, burglary, or kidnapping, shall be murder in the first degree.

1. For details, see R.C. Report, table given, p. 442, and text pp. 439-441.

643. Canada.-

The division of murder into capital and non-capital has been recently adopted in Canada.1-2

1. See sections 202A and 206 Criminal Code of Canada, as amended in 1961.

2. Detailed discussion of the Canadian Act will be in para. 650 et seq.

644. Australia.-

In Australia, two states-Queensland and Western Australia-appear to have divided murder into degrees. We may take, as an example, section 278 of the Western Australia Criminal Code, which defines wilful murder as follows:-

"278. Except as hereinafter set forth, a person who unlawfully kills another, intending to cause his death or that of some other person, is guilty of wilful murder."

Murder is defined in section 279. Under section 282 (as amended by Act 28 of 1961), in the case of wilful murder, the penalty must be death, while in the case of murder it is imprisonment for life.

645. The scheme of division was considered, but rejected after discussion in New Zealand,1 when the Bill which led to the New Zealand Crimes Act 1961 was under consideration.

1. New Zealand, Parliamentary Debates, (House of Representatives), Vol. 328, pp. 2206, 2210, 2190.

646. Royal Commission.-

The Royal Commission on Capital Punishment examined this question1 very carefully, and ultimately came to the conclusion, that while the introduction of degrees of murder in some countries had resulted in limiting the application of capital punishment and had for this reason commended itself to the public opinion, yet there were a number of practical difficulties, and that juries often refused to give a verdict of murder in the first degree even in clear cases, and instead returned a verdict of murder in the second degree.2

The Royal Commission noted that it would be impracticable to define a class of murders in which alone infliction of death penalty is appropriate, and recorded that the great majority of witnesses of all professions were firmly opposed to degrees of murder. Regarding the tests adopted in other countries, its views were as follows:

(i) Pre-meditations.-Impulsive killing does not present any stronger case for mitigation than homicide committed after genuine internal struggle in response to a strong provocation.3 What time should have elapsed to bring a case of pre-meditation ,is also a matter of controversy, and the problem where a line can be drawn between pre-meditation and mere intention could not easily be resolved.4

(ii) Categories of murders as contained in the Criminal Justice Bill, 1948.-The classification of murder by categories would produce anomalies, as in the Compromise clause in the Criminal Justice Bill, 1948. The murder of a Prime Minister by a fanatic may be as atrocious as the murder of a policeman, yet the former was excluded and the latter included in the Bill.

(iii) Provision in the Indian Penal Code.-The difference between murder and culpable homicide, given in the Indian Penal Code-(apart from the exceptions given in section 300),-rested on a distinction far too subtle and refined to constitute a just criterion of liability to suffer capital punishment, particularly, in England where the distinction would have to be applied by the jury.5

(iv) Intent to Kill.-Whether death results from a direct intention to kill or from a wilful act of which death is a probable consequence, should not make a difference. "It is the wilful exposure of life to peril that constitutes the crime.6 Moreover, for practical purposes one cannot make a distinction between (i) a man who shoots through the head for killing, (ii) a man who strikes a violent blow with a sword, and (iii) a man who, for some object of his own, to stop a railway train, contrives an explosion of gunpowder under the engine, hoping that death may not be caused, but determined to effect his purpose whether it is so caused or not".

1. R.C. Report, paras. 485-534. Conclusion in para. 534.

2. R.C. Report, para. 532, regarding position in U.S.A.

3. R.C. Report, para. 500.

4. R.C. Report, para. 501.

5. R.C. Report, para. 511.

6. R.C. Report, para. 470, the discussion is under definition of murder but is relevant.

647. The Homicide Act.-

Though the Royal Commission had not favoured the division of murder into degrees,1 the Homicide Act, 1957, adopted2 a different course by providing (in sections 5 and 6) that only certain murders shall be capital murders. Under section 5(1), the following murders are capital, namely:-

(a) any murder done in the course or furtherance of theft;3

(b) any murder by shooting or by causing an explosion;

(c) any murder done in the course or for the purpose of resisting or avoiding or preventing a lawful arrest or of effecting or assisting an escape or rescue from legal custody;

(d) any murder of a police officer acting in the execution of his duty or of a person assisting a police officer so acting;

(e) in the case of a person who was a prisoner at the time when he did or was a party to the murder, any murder of a prison officer acting in the execution of his duty or a person assisting the prison officer so acting.

Further, a person who after a conviction for murder, is again convicted of murder, is sentenced to death.

Section 5(2) contains special provisions dealing with cases where more than one person is concerned in a homicide.4

1. R.C. Report, p. 173 et seq. para. 173 et seq. and p. 189, para. 534.

2. The relevant provisions of the Homicide Act, 1957 have been temporarily repealed by the Murder, etc., Act, 1965.

3. For an interesting case as to the meaning of the expression " in course of", see R. v. Jones, (1959) 1 All ER 411 (CCA), and criticism thereof, (1959) 22 Mod LR 426.

4. See also para. 96, supra.

648. The various categories may be explained.1 Category (a), relating to theft, seems to have been suggested by the clause which was proposed to be introduced as the Government amendment to the Criminal Justice Bill, 1948 read with the Schedule thereto2, under which, inter alia, a murder committed in the course of or immediately before or after and in connection with the commission of the offence of robbery, burglary, etc., was to be punishable with death.

Category (b) relating to shooting or explosion seems to have been suggested by the compromise clause of the Criminal Justice Bill, 1948 read with the Schedule (item 4) which relates to explosives and other destructive substances.

Category (c) relating to resisting arrest, etc., might have been suggested by the provision proposed in the Murder Law (Amendment) Bill, 1867 [clause (d)].3 Compare also the provision in the compromise clause in the Criminal Justice Bill, 1948 on the subject.4

Category (d) relating to murder of a police officer can be traced to the Murder Law (Amendment) Bill, 1877, the Homicide Law (Amendment) Bill, 1876 and also the compromise clause in the Criminal Justice Bill, 1948.5

Category (e) relating to murder of a prison officer can be traced to the compromise clause in the Criminal Justice Bill, 1948.

(These details have not been given in the Explanatory Memorandum to the Homicide Bill. The Explanation relating to clause 5 merely recites the provisions of the clause.6)

1. Para. 647, supra.

2. Sec R.C. Report, pp. 471 and 473, where the Bill of 1948 is reproduced.

3. See R.C. Report, p. 470, where the Bill of 1867 is reproduced.

4. See R.C. Report, p. 471, where the Bill of 1948 is reproduced.

5. See R.C. Report, pp. 470 and 471, where the various Bills are reproduced.

6. For general criticism, see Silverman Parliamentary Debates (Commons) Vol. 500 and Elizabeth Turtle Crusade against Capital Punishment, (1961), p. 130.

649. Criticism of the provision in the Homicide Act.-

The classification of murder made in the Act cannot be regarded as completely above criticism. Certain methods of murder have been picked and chosen,-but others have been left out. A person who uses a poison, a knife, or strangulation or other means, to commit a murder cannot be sentenced to death. Murderers can thus "choose their weapons"' carefully to avoid capital punishment. For example, Ruth Ellis, hanged in July 1955 for shooting her faithless lover, would, if she had merely used a hatchet and committed the offence after 1957, have escaped capital punishment under the new Act.1

Again, the words "in the course of or furtherance of" in section 5(1)(a), Homicide Act, may raise minute and difficult questions. Brutal attacks on defenceless young girls and boys in the course of rape or other sexual offences would escape the capital sentence, and as has been said, "It is a sad reflection on the values of our society that we rate the protection of private and public property from theft more highly than the protection of the lives of children and young women."2

Lord Goddard, in his criticism of the 1948 Bill, pointed out an anomaly,3 that a murderer entering a house through an open door would not be guilty of a capital crime, whereas one who opened the door, though unlocked, would have committed capital murder, because in the latter case there would be house-breaking.

1. See Russell on Crime, (1964), Vol. 1, pp. 555 to 557.

2. See the note by J. E. Hall Williams in the Appendix to Elizabeth Turtle Crusade against Capital Punishment, (1961), p. 159.

3. Parliamentary Debates Lords, Vol. 157 (July 20, 1948), columns 1030, 1034, cited in the "Crusade against Capital Punishment" (1961), p. 80.

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