lc290 Partial Defences to Murder report - Law Commission

premeditation, (5) by aggravated brutality, deliberately and cruelly
increasing the pain of the victim, carries a penalty between 26 and 30
years. Homicide where none of these elements are present, carries a
penalty between 12 and 20 years. There are also three levels of nonintentional
homicide which range from recklessness (penalty six months
to six years), to negligence without breaking any rules, for which the
penalty is a fine or reprimand.
(11) In Sweden there is a distinction between murder and manslaughter. The
distinction seems to be a matter for the judge in each case, depending on
intentions, motives and the way the defendant acted. The sentence is at
large including a discretionary life sentence.
(12) In Switzerland the basic offence of meurtre is for intentional killing and
carries a sentence of at least 5 years, up to a maximum of 20. There is
an aggravated offence of assassination which is meurtre plus one of a
number of aggravating features: premeditation, depravity, where the
defendant is particularly dangerous by reference to the means used, the
level of cruelty or treachery, the motives, relationship with the deceased,
or the presence or absence of remorse. This offence carries a
presumptive life sentence subject to extenuating circumstances.
(13) In Turkey homicide requires intent to kill, defined as a willing and
conscious desire to commit homicide and to expect its consequences.
The penalty for the basic offence is 24-30 years. The offence can be
aggravated based on the identity of the victim: family, or member of the
National Assembly or civil servant on duty and the motive (premeditation
in pursuit of or avoiding detection of crime) 62 . Matters such as
provocation are taken into account in deciding punishment.
Previous attempts at reform
2.55 The Criminal Law Revision Committee considered the law of murder in 1980. 63 It
concluded that it should be murder (a) if a person with the intent to kill causes
death; or (b) if a person causes death by an unlawful act intended to cause
serious injury and known to him to involve a risk of causing death. They also
included as an optional additional basis for the offence, which would cover the
terrorist case referred to above, that it should be murder if a person causes death
by an unlawful act intended to cause fear (of death or serious injury), and known
to the defendant to involve a risk of causing death.
62 When the Nathan Committee reported, the death penalty was in force in Turkey for certain
aggravated murders – if the victim was a member of the National Assembly or civil servant
on duty and if the murder was premeditated or committed in pursuit of or avoiding
detection of crime. Since then, Turkey has abolished the death penalty for all offences. See
further R Badinter, “Moving towards universal abolition of the death penalty” in Death
Penalty – Beyond Abolition (2004) p 7 at p 9.
63 Fourteenth Report: Offences Against the Person (1980) Cmnd 7844.
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