Murder – a case for reform.

Joe Hingston considers the case of Calocane and the question of diminished responsibility.

The events in Nottingham in the early morning of 13^th June 2023 prompted an outpouring of collective grief. Valdo Calocane killed three innocent people and attempted to kill three others. The suffering for the victims’ families was palpable. Calocane was originally charged with murder and attempted murder. The Crown Prosecution Service later decided to accept the guilty pleas to manslaughter on the basis of diminished responsibility. The reports of four separate psychiatrists all agreed that Calocane was suffering from an abnormality of mental functioning which arose from a recognised medical condition, and which substantially impaired his ability to form a rational judgment and to exercise self-control, such as to provide an explanation for the killings.  He was sentenced in January of this year to a Hospital Order subject to restrictions (pursuant to sections 37 and 41 of Mental Health Act 1983).

The families of those killed were immediately very vocal in their criticism of how the case had been handled. They were both angry at how they had been treated in the process and aggrieved at the outcome. Quite understandably their anger attracted a great deal of sympathy and press attention. Following a meeting with the Prime Minister, the HM Crown Prosecution Service Inspectorate were asked to undertake an urgent inspection into the CPS actions in the prosecution of Calocane.

The review was published in March 2024 and ultimately acquitted the CPS of mishandling the case both in its charging decision and its engagement with the families of the bereaved. However, the episode has to be considered something of a public relations disaster for the CPS and one that has weakened public confidence in the criminal justice system. Setting aside how the families were treated in the process, it was difficult to ignore the headlines claiming, “Killers getting away with murder”. From the perspective of the public, it seemed bewildering that Calocane knew the nature of his offending, that he knew what he was doing was wrong, and that he had intended to kill the six people he attacked. Moreover, how could his mental illness offer a partial defence to murder, but not attempted murder?

The review reignited the debate about reforming the law of murder:

“It is understandable why the bereaved families find the decision by the CPS to accept the pleas of not guilty to murder but guilty to manslaughter difficult to accept. Their loved ones were violently killed by an offender who knew what he was doing was wrong and who intended to kill them. The term manslaughter has the perception to underplay the gravity of what has taken place. In 2006 the Law Commission recommended that there should be three tiers of homicide: first degree murder, second degree murder and manslaughter. The Law Commission found that the potential use of the term second degree murder to describe the verdict a jury must reach when a partial defence of diminished responsibility is available was strongly supported by groups representing victims’ families. If the recommendation of the Law Commission in 2006 had been accepted and implemented, the unlawful killings in this tragic case would have been categorised as murder, albeit second degree murder.” (1.10)

The Calocane review asked the government to consider a number of matters, including whether homicide should be categorised into the three tiers, as recommended by the Law Commission in 2006.

The current position

Murder is the unlawful killing of another, with the intention to kill another or to do that other really serious harm. It is an offence under the common law and carries a mandatory sentence of life imprisonment.

Diminished responsibility (as defined by section 2 of the Homicide Act 1957 and amended by section 52 of the Coroners and Justice Act 2009) provides a partial defence to murder so that if successful, it reduces the offence to manslaughter.

A defendant must prove, on the balance of probabilities, that they suffered from an abnormality of mind arising from a recognised medical condition which provides an explanation for committing the killing. The abnormality must have substantially impaired their ability to understand the nature of their conduct, form a rational judgment and/or exercise self-control.

The maximum sentence on conviction for manslaughter is a discretionary life sentence.

The distinction between murder and manslaughter has developed piecemeal over the centuries. The two tiers have been criticised for being too broad, or too narrow, and unable to accommodate the partial defences.

With respect to the plea of diminished responsibility, Professor Ronnie Mackay described the difficulties in this way:

“There is, in my view, a clear moral distinction between murder and a diminished responsibility killing despite the presence of the mens rea of the former offence … what is needed is a newly crafted plea which more appropriately reflects this moral distinction.”

For many, including the families of Calocane’s victims, a conviction for manslaughter on the basis of diminished responsibility did not adequately reflect the seriousness of the offending. The concept of fair labelling was broken.

The Law Commission Report 2006:

In August 2004, the Law Commission reported on “Partial Defences to Murder”. It commented, “The law of murder in England and Wales has changed regularly over the last 50 years and is still not in a state of rest”  It described the law of murder in England and Wales as “a rickety structure set upon shaky foundations” and recommended a complete review. In October 2004 the Home Office announced a review of the law of murder.

In November 2006 the Law Commission published the consequent report, “Murder, Manslaughter and Infanticide”. The report recommended, amongst other things, that instead of the current two-tier structure of general homicide offences, namely murder and manslaughter, there should be a three-tier structure:

(1) First degree murder (mandatory life sentence)

(a) Killing intentionally.

(b) Killing where there was an intention to do serious injury, coupled with an awareness of a serious risk of causing death.

(2) Second degree murder (discretionary life sentence)

(a) Killing where the offender intended to do serious injury.

(b) Killing where the offender intended to cause some injury or a fear or risk of injury, and was aware of a serious risk of causing death.

(c) Killing in which there is a partial defence to what would otherwise be first degree murder.  

Manslaughter (discretionary life sentence).

(a) Killing through gross negligence as to a risk of causing death.

(b) Killing through a criminal act:

(i) intended to cause injury; or

(ii) where there was an awareness that the act involved a serious risk of causing injury.

(c) Participating in a joint criminal venture in the course of which another participant commits first or second degree murder, in circumstances where it should have been obvious that first or second degree murder might be committed by the other participant.

The Law Commission proposed relegating a category of cases from the current offence of murder to a new category of second degree murder, namely where there was a killing where the offender intended to do serious injury (but without an awareness of a serious risk of causing death). This was a point of considerable debate, and is likely to remain an area of disagreement.

Ultimately, despite Parliament implementing the recommendations on the partial defences to murder of diminished responsibility and the fact there was a strong and widespread consensus that the current two-tier structure needed change, it was rejected by Parliament.   

How the three tier structure would work in practice:

Any reform of the current two-tier structure would be unlikely to radically change the law in practice. It would allow for degrees of culpability to be better reflected in a revised structure. Juries, which already have to grapple with complex legal concepts, would not be over-burdened making the distinction. The sentencing options, particularly disposals or powers under the Mental Health Act, would still be available.

Issues of sentencing might be easier to navigate for all. In respect of a killing where the offender intended do serious injury, the courts would be in a better position to understand a jury’s verdict and sentence on that basis. At matters currently stand, sentencing requires the judge to trespass into what ought to be a jury issue. Sentencing within a concept of tiers – or a “ladder” of offences – is more likely to be better understood by the public.

A Parliamentary Select Committee as long ago as 1874 was alive to the problem of the law governing murder:

“If there is any case in which the law should speak plainly, without sophism or evasion, it is where life is at stake; and it is on this very occasion that the law is most evasive and most sophistical.”

Bad law often follows bad press. The Government’s decision to change the law of murder as a consequence of criticism arising from one single case might be considered hasty and ill-thought out. But the proposed changes are not a novel idea – they have been properly considered and consulted upon. The report is not perfect, but even two decades on, it provides a solid footing.

Calocane’s sentence will be reviewed by the Court of Appeal following a reference by the Attorney General. That appeal is unlikely to progress this issue, but the present circumstances clearly give Parliament an opportunity to carry the Law Commission’s report further.

Ultimately it is important that offenders’ convictions reflect their blameworthiness. But this goes hand-in-hand with public confidence in the criminal justice system. An outpouring of grief should need not turn into an outpouring of anger at how the criminal justice system handles such complex cases.