A Partial Defence To Mercy Killing

Under the current law, the treatment of mercy killing at the point of conviction and at the point of sentencing are considerably different and must be examined separately.

Mercy killing at the point of conviction

In convicting a defendant, there is no direct leniency given to those who have acted in the course of a mercy killing. R v Inglis makes this point apparent per Judge LJ: “The law of murder does not distinguish between murder committed for malevolent reasons and murder motivated by familial love. Subject to well established partial defences, like provocation or diminished responsibility, mercy killing is murder.” This judgement established the cornerstone of the stance that the law would take to mercy killing and were echoed in McCombe LJ’s judgement in R v Douglas. These decisions make it apparent that the courts are not willing to consider ‘mercy killing’ as a defence in itself when convicting although the expressed sentiments of regret may well indicate a willingness to accommodate such a thing.

The only potential relief a defendant can achieve at the point of conviction is through the manipulation of another potential, partial defence to reduce their conviction from murder to manslaughter: necessity, diminished responsibility and loss of control. The former has been denied as a potential defence to mercy killers, however, and so it falls to the latter two to protect such defendants. Prior to the 2010 reform of the Homicide Act 1957, the defence of diminished responsibility was often interpreted wide enough to allow for mercy killers to fit the criteria but this has become more difficult post-reform due to the supplementation of ‘an abnormality of the mind’ with the need for a ‘recognise medical condition’, a criterion that many mercy killers cannot satisfy. The narrowing of this defence further obstructs mercy killers from reducing their conviction to manslaughter and so the current law takes a notably harsh approach (although it should be noted that it does not completely preclude the defence). The loss of control defence has a similarly narrow test. The base requirement of a ‘loss of control’ may not be compatible with the facts of a mercy killing and the need for a qualifying trigger only exacerbates the slender applicability of the defence. Many mercy killers do not lose control, instead acting in a considered and measured way. It could even be said that they act because of their control over the situation; their ability to control the suffering of their loved one and control themselves in such a way as to end it would suggest this defence is inappropriate to use, even if applicable as it may not reflect the level of responsibility that such actors possess. As such, at the point of conviction, the current law provides very little, if any, relief to mercy killers.

Mercy killing at the point of sentencing

There is more potential for the courts to take into account mercy killing as a mitigating point when sentencing. Schedule 21, paragraph 11, section (f) of the Criminal Justice Act 2003 allows the courts to take into account the defendant’s belief that the murder was an act of mercy when setting the minimum term to be served. This has no definitive effect on the existence of a mandatory life sentence but does allow the courts to recognise that mercy killers are not culpable to the same degree as other murderers and deserve some degree of leniency.

In comparison to maintaining the status quo

Maintaining the status quo, although the most practically attractive option is normatively questionable. The advantages of following such a policy are not overwhelming although do have some weight.

The largest advantages in maintaining the status quo over introducing a partial defence are those that arise from continuity and consistency. By continuing to impose the mandatory life sentence in cases of mercy killing, the practical considerations regarding passing and enacting legislation as well as the repercussions of it upon the development of the common law need not be confronted and is the option that will cause the least disruption or undermining of the current law. This, however, does not address the issue of culpability as it cannot be held that those who ‘killed compassionately in order to relieve the victim’s suffering’ are as culpable as those who kill maliciously. The argument that diminished responsibility already provides a way for mercy killers to reduce their conviction to manslaughter and so address the culpability issue has been suggested by some, despite its aforementioned narrowness: Mathew Gibson believes “Creative use of diminished responsibility is still achievable,” and the partial defence may still allow mercy killers to be convicted of manslaughter rather than murder. The accuracy of this claim is debatable as the reformed diminished responsibility plea significantly narrowed its availability to mercy killers, Hughes LJ in R v Dowds noted that the presence of a recognised medical condition was a ‘necessary, but not always...sufficient condition, to raise the issue of diminished responsibility’ and illustrates how the medicalisation of diminished responsibility has reduced its applicability to mercy killers who suffer from no such condition. If the defence is completely unavailable, maintaining the status quo becomes significantly less attractive but if Gibson is correct in saying that the defence is still open, if reduced, there may still be an argument in it.

Even if this is the case, there is still the question of if maintaining the status and using the diminished responsibility defence is normatively appropriate. The law ought to be consistently applied and maintain its own integrity and yet a ‘creative use’ of it could easily be seen to undermine this. It is preferable to introduce a new partial defence than to manipulate and misconstrue an existing one.

It could be equally argued that the mandatory life sentence, even in cases of mercy killing, has a greater normative importance. The taking of another human being’s life is one of the most reprehensible possible acts and it could well be considered that to allow anything to alter the seriousness with which the law views such a thing is to undermine the law’s protectory and punitive nature. When the Government announced a review of the law of murder, the terms of reference made explicit that the review was to “Take into account of the continuing existence of the mandatory life sentence for murder.” This suggest an inherent normative importance in the concept of the sentence and so its dismissal in the context of mercy killers cannot be so simple. The flaw in this argument, however, is that this was only a concern regarding the law of murder. If a partial defence for mercy killing was introduced that downgraded the offence from murder to manslaughter, the issue of a mandatory life sentence would cease to exist. Similarly, this argument could be applied to all of the existing defences for murder, and their existence would be brought into question. Imposing a mandatory life sentence may be undeniable for murder, it is not the be all and end all for all homicide offences.

There is the related issue of fair-labelling that must also be addressed. It is unlikely to be controversial to claim that mercy killers ought not be held as culpable as ordinary murderers and so the manslaughter label is more appropriate than murder. However, this is not an argument specifically in favour of the creation of a new partial defence for mercy killing as, if Gibson’s claim regarding diminished responsibility is correct, it could easily be achieved this way.

It ought to also be noted that public support appears to be in favour of leniency in regard to mercy killers. 79% of the public are in favour of only up to 9 years imprisonment for defendants in mercy killing situations and only 4% are in favour of the mandatory life sentence. As such, maintaining the status quo would not be in the public interest, although such data is simply indicative of acceptance, rather than active desire.

Practically, introducing no new partial or full defence would be the easiest option but this is not enough of a justification in itself. The other considerations mentioned above appear to outweigh practical considerations

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In comparison to creating a separate criminal offence

The creation of a separate criminal offence is a practically cumbersome choice in comparison to a partial defence although it may provide more normative advantages.

The practicality of introducing a separate offence for mercy killings is two-fold. First, in passing the appropriate legislation, second in the effect of said legislation. In regard to the former, drafting and enacting such extreme reform, even if it had overwhelming support, would be inherently complex, as it is with any bill whereas introducing a partial defence would be significantly simpler. In regard to the second, the introduction of a completely separate offence could easily obfuscate and undermine the clarity of the law, as well as disrupt the development and continuity of the common law. It could be said that such issues are equally likely to result from the introduction of a partial defence but it would be to a considerable lesser extent, particularly in terms of effect on the common law. This is due to the fact that the partial defence would be incorporated into the existing law of murder and would not have to be recognised under the more general category of homicide. There is also the fact that if the effect of the separate criminal offence on a defendant’s conviction is the same as a partial defence then the former appears to lose any of its advantages bar the fair label.

It may be possible to claim the converse, that the introduction of a separate offence would actually aid the clarity of the law as providing another partial defence, in addition to loss of control and diminished responsibility, to murder may only add to its complexity and wide scope. Although, it could equally be said that encompassing mercy killing as a partial defence and so maintaining the singular categorisation of homicide would be just as practically beneficial, if not more so, by maintaining a streamlined and efficient murder charge.

The normative disadvantages of maintaining the status quo are addressed by creating a separate criminal offence. The fair-labelling issue would be addressed to an even greater degree than a partial defence and the lesser degree of culpability in mercy killing offences would be addressed. Similarly, the normatively and practically troubling use of diminished responsibility would no longer be necessary. The public preference for a lesser sentence would also be satisfied through this reform although it would also be done, if not as explicitly, through the introduction of a partial defence.

The Law Commission also noted the distinction between a justificatory and excusatory offence and emphasised its importance, claiming that the creation of a separate criminal offence would rely too greatly on justification, preferring instead to view any possible approach to mercy killing as solely reliant on an excusatory legal philosophy. Although a notably legal and theoretical question, it ought to be considered by the Secretary as by allowing mercy killing to be justified would be to condone the act itself whereas to excuse it, as would be achieved through a partial defence, would condemn the act whilst understanding its motive. The latter is likely to be a more suitable approach to mercy killing as it maintains the law’s purpose of discouraging the taking of another human life whilst incorporating moral and principled considerations for the specific act of mercy killing.

Many of the advantages of the creation of a sperate criminal offence for mercy killing are also present if introducing a partial defence. Practically, the two options are similar although a partial defence is less disruptive and easier to implement but theoretically, a separate offence would guarantee closely tailored and appropriate treatment for mercy killers.

In comparison to introducing a full defence

The advantages and disadvantages of a full defence for mercy killers in comparison to a partial defence are similar to that of the creation of a separate offence.

Primarily, a full defence would acknowledge the lesser degree of culpability of mercy killers in comparison to murderers. However, a complete acquittal could be too lenient. The 79% of the public in favour of leniency for mercy killers are not necessarily in favour of full acquittal, especially not in cases with a non-terminally ill victim, and to do so would be to fail to reflect the seriousness of taking another’s life. This latter consideration is inherent in both governmental reasoning behind the murder offence A partial defence would manage to meet both needs, by reducing the sentence whilst still imposing an appropriate degree of punishment. However, the full defence of necessity arguably allow equally culpable defendants to be acquitted and so there is little reason to object to allowing a full defence for mercy killers. In regard to mercy killers, there is a greater degree of control and choice than in necessity cases and so they may be considered more deserving of conviction than acquittal.

In relation to this, there is, again, the issue of fair-labelling. Imposing the murderer label on a mercy killer may be too far but holding them completely innocent could be equally as troubling for the reasons mentioned above. This, however, is a notably subjective question and reliant upon a definition of what ‘fair’ treatment of mercy killers is. Allowing a full defence in such cases would be adopting an extreme view and so be more likely to incur strong and controversial reactions whereas a partial defence, that encompasses the middle ground of labelling, is a more moderate and so potentially more universally acceptable solution.

The practical advantages of allowing a full defence for mercy killers are in the clarity of the law. A clear, full defence does not require the degree of integration that a partial defence would and is capable of standing on its own, although not to the same extent as a separate offence. However, this advantage is minimal and the clarity that a full defence would provide cannot justifiably outweigh the potential culpability issues that an acquittal would cause. Enacting the legislation itself may also be an issue. The government’s strong desire to maintain the mandatory life sentence may reflect a desire to maintain the current law regarding mercy killings and so the passing of any bill in regard to these defendants may have added obstacles, obstacles that a partial defence, as a less radical reform, would not face.

A full defence for mercy killing may address some of the issues of the current law regarding mercy killing but the practical and theoretical disadvantages are significant in comparison to the potential of a partial defence.