Red Herrings
Where history gets messy and the law gets loud.
Brittany and Joccoaa take turns serving up shocking crimes and unforgettable legal battles. One brings the past, the other brings the courtroom — and together, they bring the chaos.
It’s smart, a little unhinged, and full of twists you won’t see coming.
Red Herrings
A Killer Debate
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Welcome to Red Herrings!
This week, Christopher treats us to a proposal from the Law Commission...
Hosted by: Christopher Brown, Brittany Warren & Joccoaa Gray
Sound Engineer: Christopher Brown
Edited by: Joccoaa Gray
If you would like to get in touch, please contact us at redherringspod@gmail.com.
Welcome to Red Herrings. I'm Jacoa, Master's student in Law and Human Rights, host of True Crime Club Newcastle, and creator of True Crime Forum Newcastle.
SPEAKER_03Hi, I'm Brittany. I have two degrees in history and 15 years experience in genealogy. We're the red herrings.
SPEAKER_00Well, well, well. What do we have here? Two red herrings and the catch of the day. Don't forget about me.
SPEAKER_01Hi, Chris! We're the red herrings.
SPEAKER_00And Chris.
SPEAKER_01Let's get started. We we have a special case today. It is an adult case. The one. The only Christopher Brown. Catch of the day. Christopher Brown.
SPEAKER_00Oh my goodness. Hello everybody.
SPEAKER_01Hi.
SPEAKER_00Hi. So we already had Jacoa's podcast on murder. If you haven't listened to that, well worth a go. Because it's related to that. So I think Jacoa's podcast is going to be outdated pretty soon because there's been a You say pretty soon.
SPEAKER_01Well these things don't go through that quickly.
SPEAKER_00So there's been a proposal. We're looking at a recent Law Commission consultation paper on homicide offences in England and Wales.
SPEAKER_01Have they said when the final report's coming out?
SPEAKER_00No.
SPEAKER_01Oh, so that's going to be at least a few years.
SPEAKER_00They published their consultation. So you can respond to this consultation if you've got strong feelings. The deadline is 30th of September. So if you get to the end of this podcast and you think, oh, I'd like to weigh in on that, then get in touch with them. I'm sure they'd love to hear from you. So the although consultation paper on homicide offences does sound pretty dry, the questions it raises are pretty big.
SPEAKER_01I have a question.
SPEAKER_00Yes.
SPEAKER_01What's a consultation paper?
SPEAKER_00So let's start with what the Law Commission is. It's an independent body set up by Parliament to keep the law of England and Wales under review and to recommend reforms. So key phrase recommend reforms. It's published this consultation paper, which is essentially a set of proposals that they set out and then ask everyone in the country to get in touch with them and say what they think about it. Usually that means people that have a stake in it, like it could be um victims of homicide. Well not they're dead, but like people um people who have been affected by homicide.
SPEAKER_02Well, they're dead. Put that at the end.
SPEAKER_00Maybe they conduct a seance. Um we don't know.
SPEAKER_02Ouuji board.
SPEAKER_00Maybe charities that like work with like rehabilitating offenders. I don't know, that sort of thing.
SPEAKER_01And so what I understand is the consultation paper is sort of the preview and then Yes, is essentially setting out the proposals.
SPEAKER_00They'll you would then have the chance to respond, and then they'll take responses into account and think, oh well, we didn't think of that. Maybe we should have a look at this again. And then they'll put their recommendations, their publish review, and that'll go to Parliament, or it'll go to the Justice Secretary, or someone like that, and they'll then decide whether to implement this or to say, well, no, we don't agree with that.
SPEAKER_01Or they'll just say, We'll get to it when we're not busy. Thank you very much.
SPEAKER_00Exactly. Yeah. So it's asking the question, what should count as murder? Should all murder be treated the same? Is there a meaningful difference between someone who intends to kill and someone who intends to cause really serious injury but death results? And when the law uses labels like murder and manslaughter, do these labels actually reflect the moral seriousness of what happened? Any comments on that?
SPEAKER_02A few, but I want to hear more before.
SPEAKER_00Do you have manslaughter in America? Yeah. Okay. So you if someone said, Oh yeah, it was found guilty of manslaughter, what would that mean to you?
SPEAKER_02That it wasn't he didn't intend to kill the person, but did.
SPEAKER_00Okay. So that's interesting. We'll come back to that. Because that's my guess what most people think, but yeah, manslaughter is a little bit different in this country. It can mean you don't intend to kill someone, it could almost also mean you did something reckless. Oh yeah, reckless manslaughter. Yeah, yeah, yeah. Okay. But as I say, Jaco did go over that in her podcast. So listen to that if you're interested. So do these labels ac ac actually reflect the moral seriousness of what happened?
SPEAKER_01There are things to be said about that because what it's basically saying is, you know, someone can have the intent to cause the serious harm and death happens, and then they can be labelled murder for that. And what it's saying is if the intent to kill wasn't there, wasn't there, is does the label fit the crime? Because it's obviously such a big label to be called a murderer, you know, without the intent. So that's part of where that's coming from.
SPEAKER_00Exactly. Yeah. Because at the moment they're treated exactly the same. Whether you intend to kill them or not, you're still a murderer if they die.
SPEAKER_01Yes.
SPEAKER_00Yes.
SPEAKER_01In I I mean it it differs case by case basically. But yes, that can happen with the system now. Yeah.
SPEAKER_00Yeah. So this question is really important because homicide law is not just about technical definitions, it's about how the criminal justice system explains responsibility after the loss of a human life. It matters to defendants, to victims' families, to juries, to judges, and to the public. Do you do you think that's an issue, the how the public responds to things? I'm thinking specifically about cases where there's been a murder or a spate of murders, a stabbing, whatever, and the person has been found guilty of manslaughter because they were, I don't know, in psychosis or or meant mentally unfit at the time of the stabbings. And I don't know, I've seen people be upset that people were found guilty of manslaughter, but in their mind, well, they stab people, they they're definitely murderers, you know.
SPEAKER_01I don't know if the know if this is just the lawyer in me, but I would just say no because the law is the law and it's what the law says goes. Fair enough.
SPEAKER_00I mean that that's definitely an opinion, a valid point, yeah.
SPEAKER_01But but yeah, of course, I mean sometimes there's there's things that you don't agree with as well.
SPEAKER_00So you think it could be solved by just educ educating the public about what manslaughter really means?
SPEAKER_01Yeah. Okay. And then if there's still an issue, then that can be looked at, which you know, we're seeing, I suppose, with the law commission now and it it things like this are being looked at, but um but yeah, I think m people just lack of education not fully getting it, because I think as well, sometimes if you do fully explain it, people go, Oh well actually that makes sense. But not always with the law because there are great areas and it doesn't always make sense.
SPEAKER_00And it's definitely an area where there's a lot of strong emotions on you know every side.
SPEAKER_01Yeah, and everyone has an opinion, right? Mm-hmm. All different ones.
SPEAKER_00So in this episode, we're gonna unpack the main proposals. We'll talk about the possible split between first degree and second degree murder, what would happen to manslaughter, how partial defences would work, and some of the wider issues around domestic abuse, suicide, complicity, infanticide, and mercy killings. So, what's the definition of murder?
SPEAKER_01There isn't one.
SPEAKER_00No. There is a definition of murder.
SPEAKER_01Not in legislation.
SPEAKER_00No, no, sorry, not in legislation, because it's a common law offence, as we learnt on your excellent podcast. But what would someone have to do to be charged with murder? We kind of covered it already.
SPEAKER_02You have to purposely take the life of someone else.
SPEAKER_00Purposely take the life of someone else, or intend to and intend to kill them or do them really serious harm, right?
SPEAKER_01Yeah, the objective word purposefully there, not always.
SPEAKER_00I think the the modern language is really serious injury, right?
SPEAKER_01Really serious harm.
SPEAKER_00Really serious harm. And I didn't realise it could be both physical and psychological. Really? Yeah. So that's interesting. So one of the big questions that this review raises is whether those two states of mind should continue to sit under the same legal label. I'm talking about if you kill someone and intend to kill someone, is should that be treated differently to if you kill someone while only intending to do them really serious harm?
SPEAKER_02Well, you still kill them.
SPEAKER_00Well, yeah. That's what yeah, you do. So you think they should be the same offence.
SPEAKER_01So let's say you're a gang member and you gave one of you, I don't know, little gang people a load of drugs and they owe you a lot of money, and you go and shoot them in the kneecap to get that money back or to intimidate them or whatever, and they die of that injury. Is that person a murderer? Yes. I agree.
SPEAKER_00Good. Interesting. Love it. Continue with those hot takes. Is that a hot take? Well, no, no, it was just an opinion. It was good. Well, yeah, I mean you you are correct. They then under the current law they are a murderer. Great. And under the new law they'd also be a murderer. But we'll get to that. In England and Wales, the two main general homicide offences are murder and manslaughter. Both, as we know from Jacoa's episode, are common law offences, meaning they've developed through the courts rather than being fully set out in a modern statute. So we've talked about murder. Manslaughter covers unlawful killings, generally treated as less culpable, and carries a discretionary life sentence. Murder, we'll remember, carries a mandatory life sentence. So whether you intended to kill someone or you intended to do them really serious harm, either way you get a mandatory life sentence. So the Law Commission's concern is that this two-tier structure is not nuanced enough. What do you think? Do you think it's fine as it is? Do you think there should be a different punishment based on whether you intend to kill someone or intended to do serious harm?
SPEAKER_02But in the end they've both still died.
SPEAKER_01If you do someone really serious harm, you have to accept they may die. Yes. There's a level of foreseeability there. Okay. In my opinion. In my very humble opinion.
SPEAKER_00And you think it should be a mandatory life sentence, either way.
SPEAKER_01Yeah, because you kill somebody. What's different?
SPEAKER_00Like I think you should respond to this consultation.
SPEAKER_01Me? I don't care enough about murder. You, you respond.
SPEAKER_00Well, if it happens to you, it doesn't matter to you anyway, does it? I wouldn't know about it, would I? Yeah, exactly.
SPEAKER_01I mean, they're not gonna listen to Lol Murder.
SPEAKER_00They're gonna yeah they're saying you run a true crime podcast and a uh true crime forum in the northeast of England. Yeah. Drop your definitely get the North East in there because they'll be like underrepresented uh member of society plus ten points.
SPEAKER_01I'm gonna leave it to the other people who know a lot more and because I don't think that Mike.
SPEAKER_00You've got a masters in law.
SPEAKER_01I don't yet. Well, you will have a masters in law. I don't think that Britney and I's opinions are very far from the bottom. Well, you are women, so not really worth taking into account. I think we echo the opinions more broadly. So I think there will be other people responding in that way. Well, maybe that's what everyone's doing. Maybe not. Is that why you're questioning us?
SPEAKER_00No, I'm I'm trying being a neutral observer. And also if I agree with you, there's not much point in me doing this podcast.
SPEAKER_01Uh yes, I mean you yes, you can play a devil's advocate for sure. Yeah, but you must tell us at the end. Okay. Or I can take both sides because I can argue both.
SPEAKER_00I also take it from both sides, listeners. On one hand, if someone deliberately causes really serious injury and the victim dies, most people would still see that as extremely serious. The Law Commission is not suggesting that that conduct should be treated lightly. But on the other hand, there is an argument that intention to kill is morally different from intention to injure. Not always dramatically different, but different enough that the law should be able to mark the distinction.
SPEAKER_02You still killed somebody no matter what. I think that's a good thing.
SPEAKER_00But it does lead to the idea that the law commission is calling fair labelling. Fair labelling means the name of the offence should accurately reflect the nature and seriousness of the wrongdoing. That is fair. Yeah. The label matters. Being convicted of murder carries a particular social meaning. Yes. It communicates something very serious to the victim's family, to the defendant, and to the wider public. So if the law puts too many different kinds of killing into one category, it might become harder for that label to do its job properly. So what do you think about that? Do you think is that an issue? Well, okay, yeah. Do you think that the offence labels are just symbolic, or do you think they've got practical consequences? D do you think if you're if someone close to you was murdered and it was called manslaughter, do you think that would affect how you thought justice had been done? Well, it would depend what happened. Right.
SPEAKER_01If my best very good friend Very, very special that we do special things with was attacked in the street with baseball bats and it didn't go and she died, and it didn't go down as murder, I would be pissed off about that.
SPEAKER_02Absolutely.
SPEAKER_00I'm thinking specifically one recently in the in the news. Do we know about Valdo Calacane? No, no. Okay. So he drove into and stabbed six people, three of them fatally in 2023.
SPEAKER_02Where was this?
SPEAKER_00I think it was Nottingham.
SPEAKER_02Okay, yeah. I thought, okay, yeah.
SPEAKER_00Yeah. Three of them fatally. And the families of those three said he'd got away with murder when he was convict convicted of manslaughter on the basis of diminished responsibility.
SPEAKER_01Oh, I agree, I agree. Yeah, I think he diminished responsibility. What were the circumstances out of curiosity?
SPEAKER_00Um he had mental health problems. Yeah.
SPEAKER_01He still was a murderer though. He still killed them.
SPEAKER_00So the label does matter, is what we're saying.
SPEAKER_01The diminished responsibility for me, yeah.
SPEAKER_00Oh, you wouldn't charge him with murder?
SPEAKER_01No, uh the diminished responsibility is a changer for me.
SPEAKER_00So you think it's fine that he was convicted of manslaughter? Yes. So I think the s circumstances was he was charged with murder. He pleaded guilty to manslaughter on basis of diminished responsibility. Yeah, okay. And they accepted that plea. Okay. And he was also convicted of three counts of attempted murder in relation to the other three.
SPEAKER_01Without diminished responsibility, well, that's the thing.
SPEAKER_00You can't have attempted manslaughter. This is where we're getting into the issue. You see the problem. Yeah. So that is where sentencing comes in as well, because the Law Commission is not only concerned with labels, it's also concerned with proportionality. If murder always carries a mandatory life sentence, then the definition of murder becomes incredibly important. The wider the definition of murder, the wider the group of people who automatically receive that sentence. So that's why the consult consultation asks whether the mandatory life sentence should be reserved for the most culpable killings. In other words, killings where the defendant intended to kill. Is that your response to the consultation? Um. No.
SPEAKER_01I can't articulate it, so keep going. Okay.
SPEAKER_00So that that that is the central idea of this reform proposal. It's going to replace, or it's intending to replace, the two-tier structure of murder and manslaughter with a new three-tier structure.
SPEAKER_01But if someone can get off murder with diminished responsibility, manslaughter already anyway, why do we need to change it?
SPEAKER_00Well, I think a lot of the idea is because the victims' families don't see that as justice. If they're seeing some, like you say, getting off with manslaughter.
SPEAKER_01But but if the system's changed, does that mean that that guy in that position that you described earlier would have been done for murder? We'll still have a diminished responsibility.
SPEAKER_00Yeah. Well, maybe I'll maybe we'll get to it and you if I explain what the the proposals are and then you can decide whether that's a good idea. Okay. So the proposed new structure would look like this. At the top, tier one, first degree murder. This is the most serious form of homicide. It would apply where the defendant unlawfully kills another person with the intention to kill.
SPEAKER_01Unlawfully.
SPEAKER_00Yeah.
SPEAKER_01Okay.
SPEAKER_00Is that is that a deal breaker?
SPEAKER_01Because we no, I'm just we can have lawful murder.
SPEAKER_00Well, yeah. If it's lawful murder, you you you wouldn't get charged with any.
SPEAKER_01No, it's just it it's just good to know that they're keeping that terminology.
SPEAKER_00So this would still be mandatory life sentence.
SPEAKER_01Mm-hmm. For first degree murder murder. First degree murder. For first degree moidoy.
SPEAKER_00Murder First degree murder. Moving on. Then in the middle, we've got tier two, which would include second degree murder and murder with a partial defence. Ah. This tier would still be extremely serious. We're still talking about you taking someone's life.
SPEAKER_01Ah, so we're taking away manslaughter altogether. No, no. No, okay.
SPEAKER_00We'll get there.
SPEAKER_01Sorry.
SPEAKER_00So the sentence would be more flexible. You can still give a life sentence, or the judge can still give a life sentence if he thinks that's appropriate. Or she. But it wouldn't be a mandatory life sentence. So this is covering Well, we'll get to what it covers specifically, but it includes if you kill someone and you it can be proven that you didn't intend to kill someone. If you just intended to kill some serious harm, it's not guaranteed you'll get a life sentence. It's still on offer, but it's not guaranteed as it is currently. After that, we've got tier three, which is manslaughter. This would cover serious, unlawful killings where the defendant did not have the intention required for murder, but was still sufficiently culpable to be convicted of a homicide offence. So he didn't have the intention to commit murder or to to kill someone. He didn't have the intention to cause really serious harm, but death still occurred.
SPEAKER_01And culpability's still there for homicide. Yes. I'm trying to figure that out. Do you have an example?
SPEAKER_00Well we'll I'll get to an example and maybe that'll that'll help. So I first want to clear up we're not talking about first degree murder and second degree murder because in in terms of American law. Right. So in American law.
SPEAKER_01That's about pre-meditation, isn't it? Exactly, yes.
SPEAKER_00Wow, you're on it.
SPEAKER_04Well, yeah.
SPEAKER_00Yeah, so exactly. I thought it was worth pointing out that in the United States, the distinction between first degree and second degree degree murder turns on planning or pre-meditation. It's not the same everywhere in the States, it varies state by state, but in general, it's to do with planning. So very broadly, first degree murder is associated with a deliberate pre-planned killing, whereas second degree murder involves an intentional killing but it wasn't planned in advance. But the Law Commission's proposed model for England and Wales is different to that. The proposed distinction is not about whether the killing was planned, it's about what the defendant intended. If the defendant intended to kill, that's first degree murder. If they intended to cause serious injury but did not necessarily intend death, that is second degree murder. So first degree murder at the top, second degree murder, and murder with a partial defence in the middle, manslaughter at the bottom. But just because manslaughter's at the bottom, it doesn't mean it's a minor offence. It's still one of the most serious offences in criminal law. It can still carry a life sentence. But the point is that the law would try to mark the levels of culpability more carefully than perhaps it suggested happens at the moment. So the law would no longer ask, is this murder or is it manslaughter? It would ask, what kind of homicide is this and what level of culpability does it involve? What do we think about the three-tier structure at the moment?
SPEAKER_01So I understand it in principle, but I still feel like let's go back to that gang member example.
SPEAKER_04Yeah.
SPEAKER_01I think just to give that gang member that shot the guy in the kneecaps second degree murder, I don't think it fits.
SPEAKER_00So do you think second degree murder risks people thinking, oh, it's not that serious a murder? Or what what is your what are you thinking then?
SPEAKER_01I mean I think it does I think it does carry that risk.
SPEAKER_00Okay.
SPEAKER_01But I I'm just not a hundred percent convinced right now in this moment things may change. That's fair enough. That intent necessarily plays that much of a role that we should be making it so strict.
SPEAKER_00Do you think if we were to go to a two-tier system of murder that we should be looking at more the American way of thinking about it? Or do you think So is in terms of do you think planning is makes things worse than if you intend to kill or not?
SPEAKER_01I don't think planning. Really? That's interesting. I think it can be just as bad whether you've planned it or not. I think there's a lot of differences.
SPEAKER_00You're getting in a heated argument, you grab a knife, stab someone in the heat of the moment, and if you're planning it for months and months thinking I'm gonna stab this guy right at this moment. I've got the knife, I've put this here, I'm gonna grab it. I think that's more like murdering cold blood rather than wow, it doesn't change it for me.
SPEAKER_01Really?
SPEAKER_00That's interesting.
SPEAKER_01I think it's just as bad. Oh yeah, I think they're both they're both very bad, obviously.
SPEAKER_00But I think one is worse than the other. I disagree. Interesting. Well, that you'd ag kind of maybe agree with the law commission then. No. So you think nothing matters, it's just they killed someone.
SPEAKER_01I think the intent is the same, whether you planned it in five minutes or in five years. The intent is the same. It's to kill someone. Okay. It doesn't change it for me. But with the proposed system, intent doesn't matter as much because I think you can still you should still get murder. But I mean the thing is you're not taking away the w the word murder.
SPEAKER_00No, you're not. So But m so maybe we don't care about culpability. You think if someone ends a life and they meant to kill and they meant to do really serious harm, there should be no distinction in sentencing for that.
SPEAKER_01Yeah, I do actually, yeah. Really? Yeah.
SPEAKER_00That's interesting. Because what the law commission is saying is there is a moral line that someone has crossed if they actually intend to kill someone, whereas if they just intended to hurt someone.
SPEAKER_01I don't think so.
unknownOkay.
SPEAKER_00That's that's a fair enough point.
SPEAKER_01What do you think, Brittany?
SPEAKER_02Same same opinion as before. Yeah, I think. But then also like you then you because I didn't realize like first and second degree murder were seen differently here. Well, they're not at the moment. Well, no, from the states. Sorry, from the states. Like, because that's how I was thinking of it, like premeditated or not.
SPEAKER_00But even still, like it's I think it's a factor in sentencing, right? Probably.
SPEAKER_02Oh, here.
SPEAKER_00Yeah. I think you probably get a longer time in jail if you've like it can be proven that you've planned to kill some of Asian ages where if you kill them in the heat of the moment. It's probably just yeah, fair enough. You've had it coming, sort of thing.
SPEAKER_02I don't know if that's what the judge would say, but in the end, you've still killed somebody.
SPEAKER_01Okay.
SPEAKER_00Fair enough.
SPEAKER_01With your direct intentional actions as well.
SPEAKER_02Whether or not it was premeditated or it happened in the moment, you still took those actions, you still thought, oh, I'm gonna, like you said, Chris, stab this person right here. Yeah. And now.
SPEAKER_00Well, I that I think that's a valid point. Because if you if you deliberately cause someone really serious injury, you're already taking a risk with their life. We can agree with that.
SPEAKER_01I love how when Britney says it, it's a valid point. And when I say it, it's mmm.
SPEAKER_00It's because it was written written in my script so I can it was written in my script so I can Yeah. Also, that was a really good point, babe. Nice one. I love you.
unknownGood.
SPEAKER_02Ew, disgusting.
SPEAKER_00So you chose violence serious enough to cause catastrophic harm, death followed, murder's the right label, is what we're saying.
SPEAKER_01But you're not taking away the label of murder anyway, would you? No, you're not.
SPEAKER_00You're saying first and second murder, second degree murder, aren't you?
SPEAKER_01So maybe you should just have murder and manslaughter. That's the only difference.
SPEAKER_00Under the current law, if a jury convicts someone of murder, we may not know whether the jury found that the defendant intended to kill or intended to cause grievous bodily harm. That's up to the judge at this point. Does that make sense? The the jury has no you know can't make a finding on whether they just see murder. Are we convicting this guy of murder? Did he intend to kill or inflict sit really serious harm? All the jury is given the option of finding is Did the defendant intend to kill or intend to cause serious harm? Under these proposals, they would charge with first degree murder and in the alternative second degree murder, and the jury would be asked, Do you think the defendant intended to kill? Yes or no? If no, did he intend to cause really serious harm? If yes, second degree murder.
SPEAKER_01Yes. And if no manslaughter.
SPEAKER_00Well, potentially, yeah, we'll get there.
SPEAKER_01Okay.
SPEAKER_00So that could matter to the defendant, obviously, because under these proposals, if he's found guilty of second-degree murder, it's not a mandatory life sentence. As I said, he might still get a life sentence, but it's not guaranteed. And it matters to the victim's family. You know, do they they might want to hear in court that they're the jury finding someone guilty of intending to kill their their whatever son, daughter. So it it probably matters to them as well. I don't know. I think they they do.
SPEAKER_01If the jury's decided they've murdered the person, is that not enough?
SPEAKER_00Well, I don't know. I mean it leaves it open for the judge to say, well, I can't be sure that you intended to kill them, so here's a 13-year sentence, which versus a mandatory life sentence. Well, it would still be it'd be the minimum sentence at the moment.
SPEAKER_01So then the sentence is up to the judge's discretion on what he's heard throughout the whole trial as well.
SPEAKER_00And so maybe we should do away with juries.
SPEAKER_01No. Well, or maybe depends on who you ask.
SPEAKER_00Oh yeah.
SPEAKER_01There's reason there's certainly arguments for both.
SPEAKER_00So those are the murder uh proposals. Next we're gonna talk about partial defences. Yeah. These are cases where someone would otherwise be guilty of murder, but the law says that their culpability is reduced. Do we know what the three existing partial defences are?
SPEAKER_01Loss of control.
SPEAKER_00Yes.
SPEAKER_01Infanticide? Is that one of the partial defence?
SPEAKER_00Infanticide, isn't it? Yeah. But it kind of is a defense, so yeah, half a point.
SPEAKER_01Um diminished responsibility.
SPEAKER_00I was gonna say we've talked about that already, so yeah, that's one. And the last one is killing in pursuance of a suicide pact.
SPEAKER_01Oh yes.
SPEAKER_00Oh, I think we talked about that in your podcast.
SPEAKER_01Yeah, very briefly. It's such an interesting one.
SPEAKER_00Yeah, there's a lot of interesting cases out there with that. So at the moment, if one of those defenses succeeds, the conviction becomes manslaughter.
SPEAKER_02That's crazy.
SPEAKER_00See, that's exactly what the law commission is saying.
SPEAKER_02Do you think that's crazy? Well, yeah, like the example earlier, that guy who drove into people and then stabbed them was convicted of man of manslaughter. Yep. I don't think he should have been. I don't know. That's murder.
SPEAKER_00There we go.
SPEAKER_02But he had diminished responsibility. It doesn't matter, he killed people.
SPEAKER_00Yeah. And that's what the victims' families are saying.
SPEAKER_02And I agree with them. He still killed people. I don't care if it was he was not all there or he had mental issues, he still took the life of people. But what if he didn't know in the moment that what he doesn't matter? He has to pay for it now.
SPEAKER_00And this is what I'm saying, this is why labels matter because he was still sentenced to in an indefinite hospital order. So he's still got basically life in a hospital. Yeah. So uh you know, it doesn't really matter in terms of his sentence whether he got convicted of murder or manslaughter. He's still in a hospital for life. Well Well, probably for life.
SPEAKER_01But if he wasn't but if he wasn't found guilty of manslaughter by reason by diminished responsibility and he was found guilty of murder, would there have been a safeguard to make sure he didn't just go into an adult prison? Would he still have been put into an adult prisoner?
SPEAKER_04I think he would have, right?
SPEAKER_02I think he probably I mean I don't know the details. But I think if that came up in the case and he was then accused of murder, not manslaughter, I d I hope at least.
SPEAKER_00Or maybe maybe you're right. I mean he was definitely charged with murder. So but yeah, and maybe maybe under the law currently he couldn't have been convicted of murder if if it was found that he was not all there at the time.
SPEAKER_01Well, yeah, because there's tests they go through, right? But I'm worried about what would happen if diminished responsibility was taken away.
SPEAKER_00Well, I don't think they're they're not gonna take it away. What they're gonna do is Brittany would take it away.
SPEAKER_01Britney would take it away. She'd fucking kill them. So you think that oh oh, so are you saying there should be murder with diminished responsibility?
SPEAKER_02But I don't think that should diminish the fact that they murdered somebody. So it's still instead of it being manslaughter.
SPEAKER_00This is great because you're agreeing with the law commission. So it's not a bad thing. No, no, that's good.
SPEAKER_02But like because I if you know, if I was in those family members' positions of, oh yeah, my family mom my family member got stabbed and then turned around and the judge is like manslaughter, I'd be like, What the fuck? What is actually wrong with you? He murdered them.
SPEAKER_04Yeah. And that's what the victim's family is saying.
SPEAKER_02And it doesn't like fine, okay. Yes, it was not he was not in his right mind at the time. After the conviction, you take those steps. Maybe he can't be in a jail for the rest of his life. Yeah, he goes to hospital. But that has I think murder.
SPEAKER_01Yeah, so you think murder with diminished responsibility.
SPEAKER_00Because you think the defendant still intended to kill or seriously harm, right? It was just he wasn't. Well, yeah, why else would he stab people?
SPEAKER_02So because and run a car into them.
SPEAKER_00Exactly. So under the proposed structure, a successful partial defence to first degree murder would not become manslaughter, it would be murder with a partial defence. I see, yeah. So this is gonna be a separate offence. Murder with a partial defence.
SPEAKER_01I I don't think you should be given the label of the murderer if you uh had diminished responsibility.
SPEAKER_00Would you feel different if it was someone close to you that got stabbed by a mental person? Yes.
SPEAKER_01But you could say that about literally anything. Like this is why emotive family members aren't the ones making the law. That's right. Neutral parties are who can give like an objective view and decide what's best for everybody. Okay.
SPEAKER_00But in the terms of this, the only difference that would have been made to the sentence would be the label. Yeah. So you you you don't think the label's important at all?
SPEAKER_01No, I I do. That's why I'm saying I don't think there should be a murderer. Which diminished responsibility. But you should be manslaughtered.
SPEAKER_00But what I'm saying was that that would have no real effect to him because he's gonna be in a hospital for the rest of his life. Does it really matter to him if he's labelled a murderer or not? Maybe it matter to him. You th it matters to him.
SPEAKER_01I just think it matters. To who? Everybody. Everybody.
SPEAKER_00But not the victim's family.
unknownOkay.
SPEAKER_01They're they're sorry, I was for the listeners, I was shaking my head. Just because they're they're not an objective viewer, yes, everyone's gonna be everyone who's personally affected by it is gonna be upset about it. But like that doesn't mean we should change the law based on emotive family members. Fair enough.
SPEAKER_00That that's a fair point. You can definitely definitely bring that out to them.
SPEAKER_01I think it can be taken into consideration and weighed, definitely.
SPEAKER_00So the the law commission is saying there's gonna be this murder with partial defence, which they suggest also could be made more specific. They could say you're charged with murder with dis diminished responsibility or murder with loss of control, or whatever the circumstances were. So you would be found guilty of murder with loss of control. That would be your your conviction if you murdered someone and you lost control.
SPEAKER_02I don't like it.
SPEAKER_00You don't like it, okay.
SPEAKER_02Yeah, I mean lost control of what? Yourself?
SPEAKER_00Well, I mean there's already a defence. So at the moment you'd be found guilty of manslaughter. That's what everyone would hear. If these proposals come into place, you'd be found guilty of murder with loss of control.
SPEAKER_02I think it should just be murder across the board. Do you get into the details if you need to, but like don't put that in the label, it's murder.
SPEAKER_00So the the point is this at the moment these partial defences exist, mainly because murder has a mandatory life sentence, and they're saying that if you are mentally incapable at the time or you lose control, or etc, etc., um, you're in pursuance of a suicide pact, a suicide pact, then they don't think that you should get a mandatory life sentence. I fair enough.
SPEAKER_02I wonder, right? I'm gonna say this like not how I mean to, but I don't really know how to say this. Why are the labels determining the sentence?
SPEAKER_00Well, quite. That's again part of the proposals.
SPEAKER_01Well, in my opinion, because they form law, right?
SPEAKER_00They've we've just decided that murder should get a life sentence.
SPEAKER_01And because a label, like, it's not just a label, it's an offence. It's it it determines the seriousness of the case.
SPEAKER_00But it's it's not just an offence though, because like with that example, that guy clearly murdered people. He killed sick people, right? But we changed the label based on whether he was in full control of his mental capabilities at the time, right?
SPEAKER_01Well, because as well, the idea that a murderer is a danger to the public. But somebody who had a m a a psychotic break shouldn't be a murderer in your in your view. Are they a danger to the public for the entirety of the rest of their lives? Arguably not.
SPEAKER_00Well, yeah, that's why they're saying murder with a partial defence of losing control, for example, shouldn't have this murderatory life sentence. Oh I see. So they're saying it would sit in the second tier of the same as murder, sorry, second degree murder. Or on the same tier. So it wouldn't be first degree murder because they've got a partial defence. It might have looked like p first degree murder because they intended to kill someone, but because they lost control, that brings it down a tier to second degree murder. So they wouldn't now get a life sentence, a mandatory life sentence. It would be open to them, but they probably wouldn't.
SPEAKER_01You're gonna say this soon, but we're then gonna have a different definition of manslaughter. I'm interested to see what then we have for manslaughter. We'll get there.
SPEAKER_00Look at that grin on his face.
SPEAKER_01I'm thinking reckless, I'm thinking negligence.
SPEAKER_00How into this you guys are. I thought it was from drying.
SPEAKER_02I told you to do that. I was we're I didn't really know, right? Because he was like, Oh, it has to do with murder. I'm like, great, I have no frickin' idea. Right? We I'm into this. I'm standing my ground, and I love how you're standing your ground because we're like, who do you think you're talking to?
SPEAKER_01We do true crime club, we go to the club. No, my goodness. We we have a true crime podcast. You're talking to exactly the right people in the room. We care about this stuff. Keep it coming. Okay, keep it coming, keep it coming.
SPEAKER_00Partial defences would apply to first degree murder, but not to second degree murder.
SPEAKER_04Oh.
SPEAKER_00Sorry, so sorry.
SPEAKER_01So you would get the mandatory life sentence.
SPEAKER_00No, no, no. Right. So first degree murder is if you intended to kill someone.
SPEAKER_01Mm-hmm. Uh-huh.
SPEAKER_00Yep. So if you intended to kill someone but you lost control, uh-huh, you can you can have that knocked down with a partial defense of I lost control, I wasn't in full control of my mental state.
SPEAKER_01So murder with intent wouldn't come always automatically with a mandatory life sentence anymore?
SPEAKER_00Murder with intent to kill would not have a mandatory life sentence if you could prove that you lost control or you were mental at the time or blah blah blah.
SPEAKER_02I have a question.
SPEAKER_00Question me.
SPEAKER_02What if you had a medical emergency and you're driving a car and you have a heart attack?
SPEAKER_01Yeah.
SPEAKER_02And you drive into another car and you kill that person.
SPEAKER_01That's called automatism, and that's a full defense.
SPEAKER_02Oh. Okay, well, that's answered my question, so thank you. Because I just thought about that.
SPEAKER_00If it's genuinely not your fault, then yeah, you you've it's not your fault. Okay. So partial defenses would apply to first degree murder but not to second degree murder. Why? Because second degree murder would already have flexible sentencing. So if someone killed intending serious injury and there were these circumstances like mental disorder, fear, pressure, loss of control, the court can deal with that sentencing rather than through a special partial defence. So similar to to how it is already, I suppose, you know, if there were special circumstances to why you felt the need to kill someone, but it doesn't fall into enough of a defence to make it manslaughter, you can deal with that sentencing. Does that make sense?
SPEAKER_04Yeah.
SPEAKER_00But they're saying if someone who was not in control of their mental state stabs someone intended to cause them serious injury, there is no need to knock that down a tear because you can deal with that sentencing.
SPEAKER_01I disagree. Okay.
SPEAKER_00Why do you disagree?
SPEAKER_01I just don't think that you should be labelled a murderer if you weren't in your right mind at the time. Okay. I mean that's I guess that's just a fundamental opinion. Fair enough.
SPEAKER_02Yeah.
SPEAKER_00I mean I think that drives home their point that labels do matter, and that but it's just their taking the view that labels should matter more or the views of victims and the victim's family should matter more than the defendant because the defendant did kill someone. And they're also worried that it has effect on it has an effect on public perception of the justice system. If your average layperson sees violent murderer convicted of manslaughter, they think, oh, he got off with murder.
SPEAKER_01But that's their problem for not doing the research though.
SPEAKER_00Like if they actually say that, but it I I think they've got a point then that it maybe undermines public perception. I mean, the public are pretty fucking thick sometimes. You can't expect everyone to have a full knowledge of the nuances of sentencing and law. What do we think?
SPEAKER_01But I mean I th if if you have someone who isn't in their right mind, you know, and then we're just labelling everybody a murderer, that affects public self-free. Well that's the thing.
SPEAKER_00I mean, once you move partial defence defence cases out of manslaughter, what is manslaughter left to do?
SPEAKER_01And can I really say it as well that we already have an issue with uh the way that mental health is perceived in the UK as well? Like if we're just gonna stop branding everyone a murderer, is this gonna set us back 20 years on understanding mental health? If we're just like, okay, no, it doesn't matter, you're still a murderer.
SPEAKER_00Not everyone with mental health stabs someone though.
SPEAKER_01Did I say that?
SPEAKER_00I'm just I'm just saying that maybe maybe treating people with that have enough of a mental health problem to go out and kill people. Treating them as, you know, someone who has the propensity to go out and kill people is probably fair enough.
SPEAKER_01Oh, I disagree.
SPEAKER_00Okay. So under the proposed structure, manslaughter would still stay. So there is still like a use case for manslaughter, but it becomes a bit cleaner. Or they say that this would make it cleaner. So at the moment, manslaughter covers a very wide range of cases. We've got dangerous, unlawful acts, gross negligence, reckless killings, and some are intentional kill intentional killings reduced from murder because of a partial defence that we've already talked about. So the proposal would move that last group out. If you intended to kill but had a successful partial defence, that is no longer manslaughter, it would be murder with a partial defence. That leaves manslaughter focused on three categories. One, unlawful dangerous act, manslaughter. The Law Commission wants to tighten this by requiring not just a dangerous criminal act, but also that the defendant intended some injury or was reckless about causing some injury. So at the moment, I believe that if you're doing an unlawfully dangerous act and you kill someone by doing that act, it doesn't matter whether you're a reckless, it doesn't matter whether you're intended to cause an injury, that is still manslaughter. They want to make it so you have to intend to cause some injury or reckless about causing an injury for that to be manslaughter.
SPEAKER_01And then what happens if it isn't?
SPEAKER_00I I presume you just well, I don't know. It can't be full defense. Well, I don't explain it. Well, that would be dangerous driving, death by dangerous driving, wouldn't it? Wouldn't it be manslaughter, would it? Yeah, we'll we'll get to that. Yeah, it's difficult to think of something that would be knocked out of this by tightening up.
SPEAKER_01Tiz, isn't it? Do we have examples?
SPEAKER_00Maybe you're stealing something from a building, you're walking across a plank between two buildings, you trip, and you drop the thing you're carrying, and it hits someone in the head. That wasn't particularly reckless. You didn't intend to cause injury, but you're still doing a dangerous criminal act.
SPEAKER_01I guess. You're walking over a plank between two buildings carrying a weapon.
SPEAKER_00Maybe a sturdy bridge then.
SPEAKER_01But even then, like, are you really getting done with manslaughter?
SPEAKER_00Well, I think that's what they're saying. At the current system, you probably you probably would because you're doing a criminal act and you're not acting. But you weren't reckless about it, it just happened and it was an accident. I think they're saying that yeah, you shouldn't be convicted of manslaughter for doing that. This isn't the main focus of the proposal, so we can skip over this. This is just quite interesting. Okay, fine, fine. If you're happy talking about it, that's fine.
SPEAKER_02I am, are you? Yeah. I just I'm just trying to think of an example and nothing's coming up.
SPEAKER_00I mean, I think that's a that's a good that's a great example, but I I can see why you wouldn't want to charge someone with manslaughter for that. They didn't mean to, they didn't mean to cause injury.
SPEAKER_01And then what about that family member? They're gonna say, excuse me, he was robbing somewhere, he was carrying an illegal weapon, he dropped it and it killed my son. Yeah. I want him done for that properly.
SPEAKER_00Absolutely. So you think they shouldn't tighten that, they should leave manslaughter alone as it is.
SPEAKER_01I I I maybe think that it should be tightened up. Okay.
SPEAKER_00I mean the idea is they're putting all this on a statutory footing, so taking it out of common law. So the idea is they need to be precise about what they're about what they're deciding is manslaughter. They need to have the wording exactly right, because otherwise it will get to court and someone will be let off for something that wasn't intended. So that's why they're being so pernickety about what should be defined as manslaughter. They're trying to basically codify the current common law.
SPEAKER_01Which I think takes away nuance.
SPEAKER_00Yeah, I agree.
SPEAKER_01Which I don't like.
SPEAKER_00Yeah, I I kind of prefer common law, honestly.
SPEAKER_01Because it it's it's it organically evolves over so much time.
SPEAKER_00Yeah. That you know, you've got the wisdom of hundreds of years on your on your side. It does mean that you're not. It doesn't always work. Yeah, solicitors have to go through hundreds of years of case law to make any to get conviction, but that's their job. Literally. So that is that is unlawful, dangerous act, manslaughter. Secondly, we've got gross negligence manslaughter. So that's not being radically changed, but they are sharpening up the language to codify it. They're in they're gonna change the test from whether the conduct was so bad that it requires criminal sanction to asking whether the conduct was truly exceptionally bad and fell far below what could reasonably be expected. So it's not a huge change, but it's a change. Three, reckless manslaughter. This will become a clearer category of its own for cases where the defendant was aware of a risk of death or serious injury and unreasonably took that risk. Sounds fair? I'm getting nods. Remember, this is a popular thing.
SPEAKER_01Sorry. I am deep in thought, sorry.
SPEAKER_00See, this is why I thought this was worth doing a podcast on, because it's interesting, right? So good. And like I think if people are gonna make these changes and are asking for our opinions, we should provide them.
SPEAKER_01Yes, but also why are you surprised? This is like the entire side of my podcast.
SPEAKER_00Like, this is what I'm gonna do how in-depth you guys are getting. So do you think do you what do you think of over all the changes to manslaughter? I mean, some things people they brought up was people object to the gendered language. What do you think about it being called manslaughter?
SPEAKER_01Oh G get over it.
SPEAKER_00Yeah.
SPEAKER_01What would they change it to human slaughter? I guess. Women slaughter? They slaughter.
SPEAKER_00They they them slaughter. I actually identify as Alien Kin, so I wouldn't be covered by that. Um, never mind.
SPEAKER_01I really don't think that that is. That's not a major concern. That's not an issue. I I'm on the fence about the manslaughter thing. I think ultimately I'm just gonna say, along with the rest, I would rather we left it how it is, but it's interesting about the intent with the manslaughter. I kind of like tightening that up.
SPEAKER_00Yeah, I agree. I agree on that point.
SPEAKER_01But again, I think it's gonna be a case-by-case basis. Case law is gonna end up making it anyway. Right. Because then we're gonna have to find case law to define intent and yeah, you absolutely are.
SPEAKER_00I mean, it's just starting from scratch with new case law, isn't it? Because you'll be going off the codified statute, but then of course there's gonna be edge cases as there are for everything, and someone's gonna have to make the decision, and then everything's gonna get referred to that case. It's just gonna be new case law, isn't it?
SPEAKER_04Mm-hmm.
SPEAKER_00Okay, so yeah, that's another argument against it. People are saying that manslaughter is so well established, there's so much case law behind it, that if you change it now, it's gonna cause more confusion than clarity.
SPEAKER_01I agree with that.
SPEAKER_00So we're now gonna move on to some of the more ancillary stuff. This is like homicide that isn't manslaughter or murder. So, like we talked about before, infanticide. So they're gonna keep they're proposing to keep this as both a separate offence and as a defence. So do we know what is defined as infanticide at the moment?
SPEAKER_01Yes, so it's a woman that kills her child under one year after birth.
SPEAKER_00Yes. Specifically while her mind is disturbed because she's not fully recovered from childbirth or because of the effects of lactation. So it's not just if a a woman kills her child under one month, under one year. It's gotta be specifically because her mental state was altered by giving birth or by breastfeeding. Are we happy with that?
SPEAKER_01Yeah, I just think generally they use that anyway. It's always offered to any woman that does that because I don't think you have to prove. You don't have to have a mental diagnosis or anything.
SPEAKER_00Okay. They don't really recommend any changes here. They think the law currently is fine. They would maybe tighten up what is meant by dis diminished responsibility. But yeah, they they reckon keep it, maybe consider it in the future as part of a future proposal.
SPEAKER_01Do we think a year is too long?
SPEAKER_00I think a year is a very specific cutoff. What happens if it's a year and a month, a year you're a year and a day?
SPEAKER_01Yeah, then you can't get it. Yeah. I think a year's too long. I think it should be six weeks. Interesting. Six weeks or even six days a week. I don't know. I don't think it should be a year.
SPEAKER_00I think it should be as long as you can prove maybe under six weeks it's g it's a given, and maybe after six weeks you have to prove or the mother has to prove, the defendant has to prove that she was significantly affected by post-NATO, you know, depression, or there was a case where a woman killed her one-year-old, just under one year old, and her two-year-old, and she got infanticide for the one-year-old and murder for the two-year-old.
SPEAKER_01How's that work?
SPEAKER_00And should it have been murder? Should it have been secondary murder or manslaughter or well, clearly it was murder, so they figured it wasn't diminished responsibility, which raises the infanticide for the first place. Why did she get convicted of man infanticide if there was no diminished responsibility? This is the yes. Yeah, okay.
SPEAKER_01So, you know, honestly, that kind of shit pisses me off about the law commission because if it's a really old, like sort of in society law, they will not address it, even though in the wider scope of things, they are reform, they are suggesting reform for the law. Like with the surrogacy thing, they're just not touching payments at all. They're just like, eh, we'll keep it, because that's like a whole bigger thing that quite frankly, I think they're just too lazy to deal with, and they don't want to upset everyone by suggesting. It's the same with the infanticide, because people get so funny about mothers and children, they're just like, oh, let's just keep it how it is and not actually look into this.
SPEAKER_00I mean, that is literally what they say in their proposal. They say if we go back up to it, we say this is a very sensitive area of these cases can involve serious vulnerability, mental health issues, isolation, poverty, domestic abuse, or crisis pregnancy. So if not, we're just not going to touch it.
SPEAKER_01It's so annoying because it's like actually that's one of the laws that should have a lot of attention. Yeah, I agree.
SPEAKER_00I think there's no real excuse for killing your eight-month child. No. That should be murder, in my opinion, unless you're severely, like, really on the rocks, but like at that point, just make it manslaughter. Right. Or second degree murder as we're they're proposing.
SPEAKER_01But because yeah, but because it's so cemented in society's view and society's whole general perception of the thing, they just don't want to touch it.
SPEAKER_00Yeah, I think there's definitely a line to be drawn between 30-year-old mother kills her nine-month child and teenage person uh gives birth and like panics, dumps it in a bin.
SPEAKER_01This is exactly the argument. But in law right now, there is no difference.
SPEAKER_00Yeah. Anyway, on that.
SPEAKER_01And the Law Commission don't give a shit. Because they're they're not touching it, whatever.
SPEAKER_00I can see we touched some nerves here today. This is great. I'm loving it. So we're gonna talk about specific homicide offences briefly. Um, we're talking about things like death by dangerous driving, we've talked about causing or allowing the death of a child or vulnerable adult, encouraging or assisting suicide, dangerous dog offences where death results. They would all remain outside the murder and manslaughter structure because they're their own specific offences, and they were created to deal with particular problems. Some you've got evidential difficulties, some you've got public safety concerns, and they've all got their own sentencing frameworks. Like if you're gonna kill someone, run them over and pretend you were just distracted, because you'll get like a three-year sentence. Whereas if you wanted to murder someone, you get a life sentence.
SPEAKER_01Wise advice, sage advice from red herrings.
SPEAKER_00That's a that's a red herrings top tip. This new three-tier structure isn't gonna affect everything, it's specifically murder and manslaughter that's gonna affect. Do you think it's sensible to keep these things separate, or what do we think about that? Should they be their own specific defenses or offences? Or do you think everything should be under murder or manslaughter?
SPEAKER_01No, I think we need to keep things separate because they are different. At the end of the day, they're different. Yeah, fair enough. And they are different enough to be separated by law, I in my opinion.
SPEAKER_00Fair enough. So again, we're saying labels matter if you you squish someone and you were distracted on your phone. I I personally wouldn't be happy if my uh family member got squished by someone who was on their phone while driving.
SPEAKER_01Right, but they're not gonna get off with it.
SPEAKER_00No, but they're gonna get probably what seven years, six, seven years.
SPEAKER_01Out in half.
SPEAKER_00Exactly. But should they really be in prison for the rest of their life potentially? Probably not.
SPEAKER_01Would you do you would you feel differently if that person had actually just got mad at your other person who was in another car and pulled them over and road-ragedly stabbed them to death on the side of the road? Would that be different?
SPEAKER_00Well, yeah, it wouldn't it? Yeah. Yeah, fair enough. So there's a few gaps in this proposal where they're asking for views. One is drug supply leading to death.
SPEAKER_01This one's so interesting because right now, you if you supply the drugs but you don't administer them, you d you aren't charged with anything.
SPEAKER_00Well, probably drug supply.
SPEAKER_02Yes. How does this play into the what do you think about the Matthew Perry death? So interesting. So what did he get the Vic stuff in the end? The doctor?
SPEAKER_01I don't know, but she. It's it's the assistant. Oh, it's Matthew Perry's assistant has been done for administering the drug that killed Matthew Perry.
SPEAKER_00Was it specifically administering it? Yes. Oh shit. Because it pricked my ears up. Yeah, I thought it was a drug dealer that sold him ketamine. No, no, it's the assistant. Right.
SPEAKER_02I think the doctor as well. I recently saw on the news a few weeks ago, something with him or her. I don't know.
SPEAKER_01Right.
SPEAKER_02Interesting.
SPEAKER_01In the UK, if the person administers it to themselves and then dies, that's on them.
SPEAKER_00So they're asking for views on that. So if you've got a strong view on that, let them know.
SPEAKER_01What do you think?
SPEAKER_00It's difficult, isn't it? I think I think there's a gap between supplying the drug and them using it.
SPEAKER_01What if the person who supplied the drug is with them at the time?
SPEAKER_00I don't think that changes it. I think as long as they're not like actively giving them the needle, forcing it into their arm and pressing the syringe or whatever. However, one takes drugs, I personally wouldn't know. I I don't think that that makes them responsible for the death. It makes them involved, perhaps. Because if if they weren't there, then they wouldn't have died, but they'd probably have got the drugs from somewhere else. You know what I'm saying?
SPEAKER_01I agree completely. I agree completely.
SPEAKER_00So anyway, we should let them know.
SPEAKER_01Can I just say the I think the idea here as well, the fact of not making this a criminal offence of administering is that if something does go wrong, the person who's with the overdoser is more likely to get help.
SPEAKER_00Yes. So it would put people off staying with a person while they're if they know that if they stay with them and they die while taking drugs, it's gonna put them off staying with them. Exactly. Right. Which means that they're less likely to get medical help and they're more likely to die. Yes.
SPEAKER_01So that is why it exists in that way, I think. Yeah.
SPEAKER_00So they're asking whether a bespoke offence should be for that particular case where you supply unlawful drugs and someone dies. Nah. Nah. Leave it. Fair enough.
SPEAKER_01I mean, you can say about anything. You can die of too much bananas and coffee and water.
SPEAKER_00Well, yeah, because technically chocolate's a drug, right? Because yeah, alters your mental addiction.
SPEAKER_01Yeah, I think so.
SPEAKER_02Like, how far do we end up taking?
SPEAKER_00That's bullshit.
SPEAKER_02Hmm. Interesting takes.
SPEAKER_00I feel like Brittany's judging us.
SPEAKER_02I'm not judging you. I just wanted to do that. What do you think?
SPEAKER_00Should there be a specific offense of supplying with drugs that led to death?
SPEAKER_02Yeah, you supplied them. They died.
SPEAKER_00Okay.
SPEAKER_02Doesn't matter if they would have gotten it from someone else. You were the one who gave it to them.
SPEAKER_00Fair enough.
SPEAKER_02You got involved. They're dead.
SPEAKER_00And you think that's be a specific offense rather than a murder?
SPEAKER_01I don't know about that. Okay. I don't know about that. Well, it could just be death by supply of drugs. Yeah.
SPEAKER_00Well, that's what they're saying. They want they think they've proposed this. Well, they haven't actually proposed it. They're asking for views on whether they should propose it.
SPEAKER_01Not broke, don't fix it. Stop it.
SPEAKER_00Fair enough, fair enough. So another thing they're asking about is possible duty to rescue type offences where No, no, no, no. Someone Someone culpably fails to seek medical help or intervention and death results.
SPEAKER_04No.
SPEAKER_00So if you see someone passed out on or drowning, yeah, passed out on a bench, maybe, choking. Absolutely not. And you don't call the police, don't call an ambulance, should you be culpable?
SPEAKER_01We as a citizen should have the right to walk away. That's our choice, whether we can live with that morally or not, it's up to us. We should not be criminalizing these kind of inactions. You're not absolutely not. Fair enough.
SPEAKER_02I think would it be better if you saw someone choking to help them? Yes. Well then, should they be criminalized too? No. Yeah, exactly.
SPEAKER_00They're not even talking about helping, though. They're talking about just calling calling 999 or something. Would society be better as a result if people knew that they would be criminalized for not helping? Would that would well that help people? Would that incentivize people to help more? Would that save lives?
SPEAKER_02I guess as part of the like I mean we learned about we learned about like the I forget what it's called, but like the bystander.
SPEAKER_00Good Samaritan law, right?
SPEAKER_01No, she's thinking of the bystander effect. Yeah. Okay. Where um someone sees something kicking off and then everybody standing around thinks that the other person is gonna do it and no one does anything.
SPEAKER_04Yeah.
SPEAKER_01The bystander effect, even with this law, may still happen. Because everyone would just think, oh well we're we're well someone else is doing it and we're all about to witness someone doing it and then it and and then the person will end up dying. But I mean, maybe it would incentivize people, but I think there will be more examples than just running into someone in trouble. There will be more examples that actually we should be able to preserve our right to walk away. Because, as well, are we gonna be encouraging people to actually get involved in shit that has nothing to do with them and therefore put themselves in danger?
SPEAKER_02Yeah.
SPEAKER_01Are we gonna have people misunderstanding the law and if they see someone drowning on a pier, are they going to jump in themselves? And die then? True. That's a great point.
SPEAKER_00But that's that's fair enough. And these are great points, and we, you know, we should probably raise these in the response to the consultation because this is not being proposed, they're asking for views on this.
SPEAKER_01Do you really want to live in a society where it is made into law that you have to help? You have to do this. I do not know. I don't want you're gonna be well, I mean, me already with crippling anxiety, just walking down the street like Oh my god, no.
SPEAKER_00Ooh.
SPEAKER_01Like, I'm gonna be forced to like get involved. What I know.
SPEAKER_00I mean, I get anxious calling people nowadays.
SPEAKER_01Yeah, I have to call people for him.
SPEAKER_00Well, that was I do not.
SPEAKER_02I call people the joiners, for example. Which is called the joiners. You absolute liar.
SPEAKER_00I have to write her emails for her. I have to press send on emails for me.
SPEAKER_02God, you press send. Because I'm like, okay, this is what I want to say, and you're like, no, that's too straightforward, that's too mean. Get to the freaking point. Okay, I'm not gonna jump around niceties.
SPEAKER_00Thankfully, jumping around niceties is not being made a specific criminal offense.
SPEAKER_01But one day we go down this slippery slope.
SPEAKER_00Quite.
SPEAKER_02I don't think if you're a bystander, if you see something happening, you should have to legally be able like you said, you should have the right to walk away. Fine. Completely agree. That's your decision. If you want to call the police, call the police. If you want to say, yeah, I was a witness to something, fine. If you want to turn your back and walk away, do it.
SPEAKER_00Fair enough. We've we've still got a bit to get through, so let's crack it.
SPEAKER_01I'm loving this so much.
SPEAKER_00So we've also got mercy killings and consensual killings. The law commission is not proposing a separate offence for those cases. So that's interesting because obviously we've talked about previous Longer Coas podcast. There are cases where the defendant may have acted from compassion or where the deceased person requested or consented to be killed. But legally, at the moment, if there is an intention to kill, that still sits very close to the core idea of murder.
SPEAKER_01But the Crown Prosecution Service rarely charge rarely follow through with these ones. Exactly.
SPEAKER_00So that's giving discretion to the prosecutor to, you know, public interest test, etc.
SPEAKER_01And so they're just asking for comments on this?
SPEAKER_00Well, their view, they're not well, they're kind of asking for comments on everything they're proposing, but their view is that creating a separate offence for, you know, assisted suicide or, you know, helping someone end their life could undermine the coherence of the framework. Instead, the difficult questions about reduced culpability should be better dealt with through defences in court. Right. And prosecutorial discretion.
SPEAKER_01Brilliant. I like it.
SPEAKER_00So next complicity, sometimes still called joint enterprise. The basic problem is this: if more than one person is involved in a fatal incident, how should the law distinguish between the person who carried out the killing and someone who insisted assisted or encouraged them?
SPEAKER_01So two 20-year-olds go into a shop in Balclavas to rob the place. Yeah. One of them ends up stabbing the cashier. Yeah. They both leg it. How culpable is the second defendant?
SPEAKER_00Yes. So they're not proposing a full reform of complicity because that would affect the whole justice system. They're just focusing on homicide. Their proposal is that if the principal offender intended to kill, they could be guilty of first degree murder. If the accomplice only intended serious injury, they could be guilty of second degree murder. So their argument is that this new structure of first degree murder and second degree murder would make it easier to reflect different culpabilities from the same event.
SPEAKER_01Okay.
SPEAKER_00So they're currently they'd both be charged with murder. Yes. And they both get a mandatory life sentence. Under these proposals, one could get a mandatory life sentence if he intended to stab someone, intended to kill them, the other would, I don't know, not a mandatory life sentence, they'd be out in 20 or something.
SPEAKER_01So I think they should just not do the first degree and second degree thing and just change it so that culpability is changed and the second person who didn't physically cause serious injury to someone would not be charged with that murder.
SPEAKER_00So they would not be charged with murder at all if you're in my opinion, shouldn't even be manslaughter, no.
SPEAKER_01You should just get charged with your burglary. If someone else goes in there with a knife and stabs someone, that ain't on me. I was just saying a burglar.
SPEAKER_00And the person died.
SPEAKER_01But what if they didn't intend to cause serious harm?
SPEAKER_00We're talking about cases where they did.
SPEAKER_01But what if they didn't? The way I understand it now with culpability is that the second person would still get charged with the murder, even though they could have not even known about the knife.
SPEAKER_00Well, no, we're we're specifically talking about cases where they went in and one person intended serious harm, one person intended to kill. Okay. If one person didn't intend to harm at all, or even cause serious harm, then they wouldn't be charged with murder.
SPEAKER_01But I think right now they would. I don't think they would. I think that's the joint enterprise thing.
SPEAKER_00But I don't think they call it joint enterprise thing. No, but Yeah. I mean this isn't a very important part. They're again going back to the thing with infanticide, they're saying complicity has been heavily criticised, including on grounds of fairness, overreach, and disproportionate impact on particular groups. What they mean by that, I'm not entirely sure. Are they saying that specific groups of people go around stabbing people? I don't know.
SPEAKER_01Can you say that again?
SPEAKER_00This matters because complicity has been heavily criticized, including on grounds of fairness, overreach, and disproportionate impact on particular groups. So I think maybe they are saying what you're saying in that a group of people go into rob a place, one of them stabs someone, they will get charged with murder.
SPEAKER_01Yes, that's what I believe is the case.
SPEAKER_00Right. Well, fair enough. In in that case, then yeah, I can see why that would be criticised.
SPEAKER_01Yeah, I don't think that should be a thing.
SPEAKER_00So you think that the person that killed them should be first degree murder, the rest should be second degree murder, or the rest should just be let off.
SPEAKER_01Okay. Fair enough. Well, get charged with the criminal artery they were doing, yeah.
SPEAKER_00But I agree with that. So attempted murder is this is the next bit of their proposal. This is relatively simple. Under the proposal, attempted murder would mean attempted first degree murder only. In other words, the defendant must intend to kill and do an act that is more than merely preparatory. So you can't just like hide a knife somewhere and get convicted of attempted murder. You have to actually take the knife out of its hiding place and go to stab someone.
SPEAKER_01What's the difference between attempted murder and first degree attempted murder?
SPEAKER_00Like Well, there's not an offence of attempted second degree murder because you can't attempt to GBH someone.
SPEAKER_01No, but I suppose all I'm saying is what's the difference between now and the future. The only thing you're doing is putting first degree in front of it just for the sake of the three-tier system, but it's not actually different.
SPEAKER_00Basically, yeah. Meh. So that there's no attempted second-degree murder. But you're right, it's basically exactly the same as it is now, but with, you know, attempted first degree murder. No major change there. Finally, domestic abuse and suicide. This is one of the more you know social issues. They want to consider cases where a victim of domestic abuse dies by suicide, and the question they're proposing is whether the abuser's conduct should be treated as contributing to that death in a way that the criminal law properly recognises.
SPEAKER_02No. Yeah, I agree. No.
SPEAKER_00Really? So you think if some I thought that wow, I thought that you would be on the other side completely. My goodness. So if I was like battering Brittany and like controlling all her money and making her life miserable, and she thought the only way out was to kill herself, I'd be totally scot-free and off the hook.
SPEAKER_02No, but not of murder.
SPEAKER_04Okay.
SPEAKER_02Yeah, I agree.
SPEAKER_00Really?
SPEAKER_02It wouldn't be murder, but it would be everything else.
SPEAKER_00Wow, okay. So I'd just get controlling coercive behaviour and be out in like six months or something.
SPEAKER_02Domestic violence. Okay.
SPEAKER_01Okay.
SPEAKER_00Still it wouldn't be that long though, would it?
SPEAKER_01I I completely understand why people want this to be murder. But for me, it doesn't work. Okay. Can there be a separate law for this? Well, that's one of their proposals.
SPEAKER_00They're proposing two ways around this. Okay. And they want to know everyone's views.
SPEAKER_01It's almost as if we scripted that.
SPEAKER_00Yeah.
SPEAKER_01Yeah. We did not.
SPEAKER_00So one is this bespoke offence of controlling our coercive behaviour in an intimate or family relationship where that abuse contributes to the victim's death by suicide. Yes. So that would be a separate offence.
SPEAKER_01I think that is where we should go.
SPEAKER_00Right. The other will be an aggravating factor at sentencing. So where domestic abuse contributes to suicide, that will be reflected. So you get convicted of domestic abuse, and if the person killed themselves, that would be a big factor effect affecting sentencing.
SPEAKER_02No.
SPEAKER_01Okay, so we like the first one. A separate offense. Okay.
SPEAKER_00Like that.
SPEAKER_01Still going to be exceptionally difficult to prove and case. I agree.
SPEAKER_00Well, that's where they're kind of saying that it maybe it would be easier to make it an aggravating factor at sentencing. But maybe it's more just to have it as a separate offense and make the prosecution prove it.
SPEAKER_01Yeah.
SPEAKER_00So we are getting to the end now. That is all the proposals. It's us the consultation isn't just about. Tinkering with definitions. They are proposing a full overhaul of pretty much everything touching homicide. And they're asking really, is it about the outcome? The fact that someone's died? Is it about intention? Is it about risk? Is it about the victim's vulnerability, abuse, compassion, or social contact context?
SPEAKER_01See, I would argue it already is about all of those things and it's already addressed with more nuance than this would allow.
SPEAKER_00And you think that common law allows us to have that nuance? Yeah. Because you can just deal with it at sentencing and you can bring up all these things and the defendant gets the sentence they deserve. Yeah. Okay. Fair enough. But I think they all the issues they've raised show how difficult it is to build a homicide system that everyone agrees with. Because we know there's these problems with the public, the victims' families not agreeing with you know the outcomes. You know, they're seeing a man being convicted of manslaughter that stabbed six people and killed three of them. And there's plenty of those cases. There's not just that got one guy in Nottingham. There's there's lots of those cases.
SPEAKER_01I must add though, to get a defence like that, a partial defence, you have to really jump through some hoops to prove that. Like they don't just take that lightly, they don't just let anyone go for that.
SPEAKER_00Like Oh, I'm I'm sure.
SPEAKER_01I have absolutely no reason to believe that that man did not know at that time that what he was doing was wrong. That's why I think it's okay.
SPEAKER_00Fair enough. But what the law commission is saying that maybe the the public's view on that is affecting the the public's confidence in the justice system. They're seeing people in inverted commas get off with manslaughter when, you know, to to a normal person's eyes, they jumped out of a van that they'd just driven into six people and stabbed them. They're seeing that being convicted as manslaughter and thinking, well, this is just bullshit.
SPEAKER_01But they're ill-informed.
SPEAKER_00Well, yeah. But maybe that's a problem with the system rather than a problem with education.
SPEAKER_01Maybe the system should be m you know more straightforward and more easy to understand and more Maybe we should have a culture where people actually inform themselves before they express an opinion.
SPEAKER_00Maybe we should just agree with everything lawyers do and just take what their decisions are as read and Honestly, what is even the point of appealing court decisions? Because the judge probably got it right the first time. Well, he's a judge, so we should agree with what they say.
SPEAKER_01You know that's not what I'm saying. And also, you know, I'm sure that if we asked the public their opinion on plenty things, we would think they were a little bit off their rockers. Well, that's the death penalty back or whatever.
SPEAKER_00Well, yeah, that's exactly what the law commission is doing there. It's inviting responses on all of these proposals. As I said, the deadline to respond is September the 30th, this year, 2026. So if you've got strong feelings on that or any comments you'd like to make, then I would yeah, go and respond on their website.
SPEAKER_01It takes like half an hour, if that's a good we should do it. Let's do it.
SPEAKER_00If you've been swayed by our views on this, um right in.
SPEAKER_01I love that. That was so good. Are you believing? That was such a great format. I loved it.
SPEAKER_02Uh-huh. Thanks, guys. We were on opposite sides almost the whole time. Yeah. And there was a couple times where we agreed, but most of the time it was so cool to see it. I think I was quite a lot of times because I was trying to like think of like, okay, my responses, or like, okay, what did he just say? Like, just trying to like.
SPEAKER_00That's the thing, there's a lot of technical questions in there, really.
SPEAKER_02Right, but that was so good. You need to do more.
SPEAKER_01Tune in next week for a real good tale.