empirical perceptions of homicide and criminal justice - has elements of duress and necessity

BRIT.J. CRIMINOL. VOL 38 NO. 3 SUMMER 1998

PUBLIC PERCEPTIONS OF HOMICIDEAND CRIMINAL JUSTICE

BARRY MITCHELL*

This article offers an account of a recent quantitative surveyi of public opinion on homicide and thecriminal justice system. The survey set out to test the assumptions made in substantive criminal lawthat the public recognize variations in moral culpability between homicides and that thesevariations should be reflected in separate offences carrying separate sentencing provisions. If thisfundamental assumption is well founded, the survey further sought to determine what factorsappear to influence the public's assessment of gravity in homicides, how the law should categorizehomicides, and what justifications and excuses should be recognized. Finally, it set out to test publicopinion as to the appropriate penalties for the most serious homicides.

There is a growing body of research evidence of the impact of public opinion aboutcrime seriousness and sentencing policy both in this country (Levi and Jones 1985) andelsewhere (Golash and Lynch 1995), and policy makers are undoubtedly influenced byperceptions of public sentiment and the need to maintain public confidence in diecriminal justice system (Indermaur 1991; Roberts 1992). At a theoretical level, it hasbeen forcefully argued that public opinion has a crucial role to play in denouncingcriminal behaviour and reaffirming society's values (Davies 1993).

The vast majority of criminological research has investigated attitudes across a widerange of offences. Various polls have elicited views on capital punishment, but apartfrom two snapshot surveys by the MORI organization in October 1990 (for the BBCprogramme Public Eye) and in August 19952 (for the News of the World newspaper),there is a conspicuous dearth of detailed investigation of opinion on homicide and howthe criminal justice system should respond to it. The public appear to have anambivalent interest in homicide; for some time there has been a demand forpublications depicting detailed accounts of sensational and usually horrific killings,whilst those same crimes have been roundly condemned, especially by the press andother sections of the media.

Smith's (1984) study based on the inhabitants of a small area in Birmingham foundthat for 52 per cent of her sample the main source of information about crime was themedia,3 and this is supported by research in other jurisdictions (e.g. Knowles 1982;Broadhurst and Indermaur 1982; and Canadian Sentencing Commission 1987).Research also suggests that (i) the news media usually provide insufficient informationon which to make reasoned evaluations of events, so that opinions are formed without

School of International Studies and Law, Coventry University, Coventry.1 This survey was funded by two grants; one for 55,900 from the Leverhulme Trust, the other for f 15,700 from Coventry

University's Research Initiative.1 A quota sample of 1,527 adults aged 18 years or more were interviewed on 4 August 1995 in the street at 68 constituency

sampling points throughout Great Britain. The data were weighted to match the profile of the population.9 35.8 per cent relied on hearsay or the supposed experience of friends and neighbours, 3.2 per cent used their own experience,

and just 1.3 per cent used the police.

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any substantive knowledge of the issues (Hans and Slater 1983); (ii) the mediainvariably reports only the traditional punitive responses to crime (Barrile 1984;Roberts and Doob 1990); (iii) the media's apparent influence on attitudes towardscrime, through programmes such as Crimewatch UK, Crime Stoppers andCrimebusters, has lead to a fear of crime (Home Office 1989) and (iv) the 'true crime'realm provides an inaccurate picture and understanding of homicide (Durham et al.1995). At the same time, Sparks (1992) warns us against assuming that televisionnecessarily influences the public's perception of crimefictional crime programmesare watched primarily for entertainment rather than enlightenment.

Although the law recognizes very specific kinds of homicides through crimes such asassisting suicide and infanticide, the majority of criminal killings are categorized aseither murder or manslaughter, with the former offence representing what areregarded as the most serious homicides. The criminal law has long recognized adistinction between murder and manslaughter (Kaye 1967), and the decision to retainseparate offences rather than a single crime of, say, 'criminal homicide', is based largelyon the hitherto untested assumption that it accords with public opinion (Criminal LawRevision Committee 1980, paras. 15, 23 and 28; Goff 1988).

It is further assumed that, in broad terms, public opinion on the issue mirrors thecriminal law in its adoption of the principle of fair labelling, that the law should reflectdegrees of wrongdoing through distinct offences, separately labelled and frequentlycarrying distinct sentencing provisions, so that offenders can be formally stigmatized inproportion to their blameworthiness (Criminal Law Revision Committee 1976, para.7). The details of the conviction should indicate the degree of harm or damage and theoffender's moral culpability, so that the label attached to the crime and the criminalrepresents a proportionate response to unlawful conduct (see, for example, Ashworth1981; Glanville Williams 1983; Horder 1994). Abolition of the murder/ manslaughterdistinction would, it is argued, lead people to think that the law had been weakened andthat 'the law no longer regarded the intentional taking of another's life as beingespecially grave' (CLRC 1980, para. 15). Furthermore, the singling out of murder asrepresenting what is commonly believed to be the worst homicides is also used to justifythe imposition of a mandatory sentence of life imprisonment.4

Yet some of our most senior judges have publicly argued that in its current formmurder does not always represent the most heinous form of homicide (see, e.g. LordKilbrandon in Hyam v. DPP,5 and Lord Hailsham in R v. Howe et al.6). Moreover, itseems that in practice the verdicts in homicide cases, whether dealt with as guilty pleasor as contested trials, do not necessarily reflect the theoretical differences betweenmurder and manslaughter (Mitchell 1991). This apparent discrepancy could not

* In the more recent of the two MORI surveys (i.e. the one conducted in August 1993) referred to above, 71 per cent said thai rapeof a child and 65 per cent thought that rape of an adult should justify the death penalty, and these figures are very similar to thepercentages of respondents who favoured capital punishment for certain types of murder.

5 'It is no longer true, if it was ever true, to say that murder as we now define it is necessarily the most heinous example of unlawful

homicide' [1974] 2 WLR 607 at 640.s 'Murder, as every practitioner of the law knews, though often described as one of the utmost heinousness, b not in (act

necessarily so, but consists in a wliole bundle of offences of vastly differing degrees of culpability, ranging from brutal, cynical andrepeated offences like the so-called Moors murders to the almost venial, if objectively unmoral, "mercy killing" of a belovedpartner1 [1987] 2 WLR 568 at 581.

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PUBLIC PERCEPTIONS OF HOMICIDE AND CRIMINAL JUSTICE

simply be attributed to evidential issues but may well result from the personal views ofthose involved, both lawyers and jurors.

Assumptions about the state of public opinion have also been made in therationalization of the law's approach to justifications and excuses in homicide. In caseswhere battered spouses kill their abusers, the law has been criticized for its narrowinterpretation of reacting with 'a sudden and temporary loss of self-control', oftenthereby depriving the defendant of a manslaughter conviction based on provocation.Wasik (1982), for example, argued for 'less emphasis upon the need for an immediatereaction against gross provocation' and urged the law to recognize 'shades ofculpability, even in deliberate killings', claiming that 'all the evidence there is points tothe public's opposition to stigmatising killing under cumulative provocation asmurder'.

In practice, mercy killing is not infrequently treated as manslaughter by straining theconcept of diminished responsibility so as to produce what is perceived as a more justoutcome, namely a manslaughter conviction which in turn does not force the court toimpose a life sentence (CLRC 1976; House of Lords Select Committee 1989). The basisof this is that '[n]o-one connected with [a mercy killing] case wants to see the defendantconvicted of murder' (CLRC 1980). A person who kills in self-defence theoretically hasa defence even to a murder charge provided it was reasonable for him to use force in thecircumstances and no more than a reasonable degree of force was used; if he exceedsthe bounds of reasonableness by even the smallest amount, he is likely to be convicted ofmurderthe law adopts an 'all-or-nothing' approach (e.g. R v. Clegg [1995]). Onceagain, though, this is a subject about which lawyers seem to think they have their fingerson the public pulse. In Palmer v. R [1971], one of the leading authorities on the point,Lord Morris, commented, 'If a jury thought that in a moment of unexpected anguish aperson attacked had only done what he honestly and instinctively thought was necessarythat would be most potent evidence that only reasonable defensive action had beentaken'.7 It is difficult not to harbour a suspicion that ordinary people would at leastreduce the conviction of a killer who used excessive force in self-defence.

Furthermore, the decision of the House of Lords in R v. Howe et al. [ 1987] to excludeduress by threats (of death or serious injury) as any kind of defence to murder ispresumed to be broadly in line with public acceptance. Lord Hailsham remarked, 'Ihave known in my own lifetime of too many acts of heroism by ordinary human beings ofno more than ordinary fortitude to regard a law as either "just or humane" whichwithdraws the protection of the criminal law from the innocent victim and casts thecloak of its protection upon the coward and the poltroon in the name of a "concession tofrailty'". However, commentators have been very critical of this 'heroic argument' as arationale of the law (Dennis 1987; Milgate 1988; and Walters 1988). Indeed,commenting on the ruling in Howe, Professor Smith (1987) claimed, 'Even the mostresolute and well-disposed citizen would be likely to comply (with the threat)'.

7 It is worth noting here that until quite recently the Australian courts regarded homicides resulting from the use of excessive

force in self-defence as manslaughter, but this was reversed by the High Court in Ztctvic v. DPP (1987) 61 ALJR 375 so that suchcases are treated as murder. In the Republic of Ireland however, the Supreme Court has held that a person who uses no more forcethan lie honestly thought was necessary but objectively did use excessive force should be guilty of manslaughter, see PtopU (A-G)v.Dvjrr [1972] IR 416.

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BARRY MITCHELL

The Study

In collaboration with Social and Community Planning Research (SCPR), a survey wasundertaken with the primary aim of testing the law's assumption that it has publicsupport for the way in which it deals with homicides. To do this we set out to examinepublic opinion in England and Wales on a range of specific homicide scenarios, onhomicides generally, and how the criminal justice system ought to respond to them.More specifically, the research sought:

(a) to determine whether the public recognize variations in gravity betweenhomicides;

(b) if they do,(i) to identify factors which they treat as influencing the gravity of homicides;(ii) to determine whether they feel such variations should be reflected by the

legal recognition of separate offences carrying separate sentencingprovisions; and

(c) to determine what kinds of sentencing powers the public think ought to be avail-able to the courts when dealing with defendants convicted of'criminal homicides'.

Before embarking upon the main national survey, two pilot studies were undertaken.The first of these, carried out with the assistance of NOP/MAI and funded by a smallgrant from the Nuffield Foundation, was in the form of moderated group discussions. Itconfirmed that the public recognize the concepts of murder and (albeit slightly lessreadily) manslaughter, though not exactly as they are construed in law, and it appearedto suggest that the public do recognize that some homicides are more serious thanothersi.e. that they merit different levels of punishment and condemnation. Afurther pilot study tested a draft questionnaire and confirmed the feasibility of thegeneral approach of using a series of homicide scenarios as part of a quantitative,interviewer-administered, questionnaire survey. The survey was based on a randomsample designed to represent the general population in England and Wales, drawnfrom the Postcode Address File.8 The response rate was 71 per cent, yielding 822interviews. On key demographic variables, the sample reflected the population aged 18or over in England and Wales.

Respondents were asked to consider the following eight hypothetical scenarios:Card A: Burglary (hereafter the 'burglary scenario')A burglar was disturbed by the owner of the house, a 25-year-old woman. He panicked.He picked up an ashtray which was near at hand and hit her over the head with it. Shedied of her injuries.Card B: Terminally ill woman (hereafter the 'mercy killing scenario')A woman was terminally ill and in great pain. She had been begging her husband to 'puther out of her misery' for months. Eventually, he gave in to her request and suffocatedher whilst she was asleep.

1 The interview! were conducted in October 1995.

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Card C: Woman drowning (hereafter the 'drowning woman scenario')A young woman was walking her dog by a lakeshe slipped and fell into the water. Apasser-by saw her drowning in the lake. Although he could swim, instead of trying tosave her, he walked by and she drowned.Card D: Man and woman arguing (hereafter the 'thin skulls scenario')A man and woman were arguing about who was first in the queue at the supermarket.He gently pushed her, and she unexpectedly tripped and bumped her head against awall. She had an unusually thin skull and she died from her injuries.Card E: Mountain climbers (hereafter the 'necessity scenario')Two mountain climbers were roped together. One of them slipped and fell. The othertried to hold on to the rocks for both of them, but he knew that if he did not cut the rope,they would both die. To save himself, he cut himself loose, knowing that the otherclimber would fall to his death.Card F: Battered spouse (hereafter the 'battered spouse scenario')A woman had been physically and sexually abused by her husband for three years. Hecame home one evening and started hitting her again. She felt that she couldn't standany more abuse, so she waited until her husband was sleeping, then hit him over thehead with a saucepan, killing him.Card G: Two men arguing at work (hereafter the 'self-defence scenario')Two men were having a heated argument at work which developed into a Gght. One ofthem picked up a screwdriver and lunged at the other. Fearing that he would otherwisebe stabbed, the unarmed man grabbed a spanner, and in self-defence he hit the otherman over the head with it, killing him.Card H: Killer threatened with his own life (hereafter the 'duress scenario')A group of terrorists threatened a man with his own life if he did not agree to kill a localbusinessman. The man was told by the terrorists that he had a week in which to kill thebusinessman, and that if he went to the police he would be shot.9 Scared for his own life,the man could see no alternative and he killed the businessman.The law currently treats these homicide scenarios very differently both in terms ofoffence category and sentencing. Respondents were asked to

(1) rank them in order of seriousness (i.e. those which were the most blameworthyand deserved the greatest punishment), and rate them on a 1 to 20 scale (with 20representing the most serious killing), giving their reasons for the rating;

(2) suggest appropriate sentences for the highest and lowest rated scenarios; and(3) respondents were invited to reconsider some scenarios in which one factor had

been altered, in order to test the potential relevance of further factors.

0 Tlie killer in this scenario was given a fairly long period in which to kill the businessman for two reasons: (i) to accentuate the

apparent difference between this case and scenario E which raises the possible defence of necessity or 'duress of circumstancej'; and (ii)because the law on the degree of immediacy of execution of the threat in duress per minas is unclear. The law's ultimate concern seemsto be wheilicr the accused's will was overpowered ahen cotnuiUmg Iht offence (see Lord Edmund-Davies in DPP for N Inland v. Lynch[1975] AC 653 at 700), although a threat of future violence might persuade the court that D killed because of the threat hanging overhim rather than because of the immediate pressure on him; tee Lord Parker CJ in R v. Hudson and Taylor [1971 ] 2 QB 202 at 206,207.

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Respondents were also asked to consider homicides generally and to describe what theyregarded as die worst homicides and suggest how they should be sentenced, and toidentify what they saw as the least serious killings.

The Homicide Scenarios

(a) Ranking the scenariosWhether the average gravity of the eight scenarios is calculated by averagingrespondents' rank orders, or by averaging their gravity scale ratings, the same rankingemerged. This is shown in Table 1 below.

TABLE 1 Ratings of homicide scenarios on 1-20 scale

Mean Standard deviation

Card A; burglary10 15.5 4.0Card H: killer threatened with own life" 12.7 4.7Card C: woman drowning12 9.8 5.4Card G: two men arguing15 9.1 4.4Card F: battered spouse" 8.1 5.5Card D: woman with thin skull15 5.9 4.3Card E: mountain climbers16 5.6 4.2Card B: terminally ill woman" 3.5 4.1

10 Sixty-nine per cent of Uie sample rated card A at 15 or more. There were no significant differences in the rating of card A

(burglary scenario) by respondents' age, gender, qualificatiom or religion, but there were some noteworthy variations based onsocial class and marital status. Those in skilled manual occupations rated the case slightly more seriously (16.29) than those in othersocial daises; and those living with a partner tended to rate it less severely (14.61) dian others.

11 Very few variations were found between die ratings of different sub-groups for card H (the duress scenario).

"Women rated card C (the drowning woman scenario) more severely than men (mean rating of 10.2 compared to 9.34), as didyounger (18-24 year-olds) and older respondents (65 or over) compared to the intermediate age groups (mean ratings 11.22,10.66and 9.26 respectively). Those with children rated the case less severely dun those widiout (9.55, compared to 10.49).

"Women again rated card G (die self-defence scenario) more severely than men (mean rating 9.62 compared to 8.46); so too didolder (75 or over) respondents (10.11 compared to 8.79 for die under-35s).

H Older (die over-65s) and younger (the under-25s) respondents rated it more severely than other age groups (mean ratings

9.93, 8.5 and 7.57 respectively). Of particular interest, married, cohabiting or divorced/separated respondents thought it wasdistinctly less serious than those who were single and never married or widowed (7.8,6.98 and 7.29 compared to 9.01 and 9.94respectively). Additionally, those with a religion and those with no qualifications (mean ratings 8.49 and 8.96) regarded it moreseverely than those who had no religion and those wiui educational qualifications (7.27 and 7.78).

18 Fifty-eight per cent of respondents gave this scenario no more dian 5 out of 20. Respondents living with a partner rated card D

(the thin skull scenario) significantly lower than those who were widowed, divorced/separated or single (means ratings of 5.79 and4.44 compared to 6.1, 6.54 and 6.28).

'"Sixty per cent gave uiis scenario no more than 5 out of 20. Women rated card E (die necessity scenario) more severely dian men(6.19 compared to 4.98), as did younger (under 25) and older (65 or over) respondents compared to those in intervening agegroups (6.43 and 6.73 compared to 5.15). Widowed and single respondents thought this case was more serious than their marriedcounterparts (6.34 and 6.1 respectively compared to 5.31).

17 77.8 per cent rated diis scenario at 4 or less. Single respondents who had never inarried tended to give a slightly more severe

rating to card B (mercy killing scenario) than their married or cohabiting counterparts (4.29 compared to 3.19 and 2.50respectively). Those with a religion also gave it a higher rating (3.84) Uian uiose who did not have one (2.56), as did respondentswith no qualifications (4.24) compared to those widi qualifications (3.13). Similarly, respondents at the two ends of the age spectrumthought card B merited a higher score (4.51 and 4.61 from 18-24 year olds and 65 years or more respectively) than those between25 ajid 64 (2.90).

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Trie burglary scenario was perceived as the most serious homicide scenario by 53 percent of the respondents. Three-quarters placed it in the first two, and almost nine out often put it within the three worst killings. Respondents under 25 and those aged at least65 years were less likely to regard this as the most serious of the scenarios. Those withchildren, however, were more likely than those without to rate it as one of the two mostheinous homicides (77 per cent compared to 67 per cent).

The most common reason for giving the burglary killing a high seriousness scorewas the fact that the killer was already committing a crime. More than four in ten saidthat he should not have been in the victim's home in the first place, and roughly threein ten reasoned he had set out with the intention of committing a crime (albeitburglary rather than murder or manslaughter). Thirteen per cent also thought thefact that the deceased was killed in her own home aggravated the matter. Othercriticisms of the killer in card A were: he should have run away when confronted; thekilling was premeditated,I8 there was no reason for the killing; the killer's motive wassimply to save himself, and he must have intended to injure and was willing to use aweapon. Interestingly, those who regarded this scenario as relatively seriouselsewhere in the survey described their perception of'the worst kinds of homicide' byreference to the vulnerability of the victimthe victim was innocent or defencelessetc.

Almost three-quarters of the sample placed the duress scenario in the three worsthomicides. However, the rating of this scenario should be treated with caution since itappeared that some respondents were assessing the severity of the threat per se to thekiller rather than his motives and justification. There were no significant differencesbetween respondent subgroups. The most common reasons for regarding the scenarioas comparatively serious implied that the killing was avoidable. Four out often thoughtthe killer could have gone to the police, and a further four in ten said he had analternative course of action. Just over a fifth regarded the fact that the killing wasplanned or calculated as the most aggravating feature, and about one in seven criticisedthe killer's motivesaving himself. Others pointed to the cowardly nature of the killingand to the victim's innocence.

The drowning woman scenario was generally placed third of the eight, though itprovoked a wide range of responses. Forty-four per cent placed it in the worst three, 335placed it fourth or fifth, and almost a quarter put it in the three least serious scenarios.Younger respondents, especially those under 34 years, tended to regard it morecritically. The scenario most frequently (four in ten) received the comment that thekiller should have tried to save her. Other aggravating features were the disregardshown for human life, behaving contrary to the normal rules of society, and the fact thatthe killer had an alternative course of action.

like the drowning woman scenario the battered spouse scenario provoked a broadrange of reactions. Almost a third rated it as one of the three worst cases, four out oftenthought it one of the three least serious, and 27 per cent perceived it as of middlingseverity. Interestingly, there were very few significant differences in the responses ofsubgroups. The severity rating varied considerably within each subgroupage,

" The contrary was wggested in the (acti.

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gender, social class etc. The only statistically significant variation was by marital status;married or cohabiting respondents were slightly less likely than single or'never-married' respondents to rate this scenario as one of the two most serioushomicides (14 per cent compared to 25 per cent).

Many of the respondents who were relatively critical of the battered spouse scenarioalso identified the presence of an alternative course of action as a particularlyaggravating characteristic. Others noted the fact that the killing was premeditated, andearlier in the survey those who treated this scenario as serious were more likely todescribe the worst homicides by reference to the killer's motive. Those who rated thebattered spouse scenario (card F) as of relatively low severity said the killer had been'driven to the end of her tether'. Others said she needed to save her own life, or that shehad suffered such abuse. Earlier in the survey these respondents, when describing theiridea of the worst homicides, placed more stress than other respondents on the victim'svulnerability and less on the method of killing or the victim's suffering: when describingthe least serious homicides, they again put more emphasis on the victim's vulnerability,and less on the killing being accidental.

Fifty-five per cent of respondents placed the thin skulls scenario in the three leastserious homicides, and there were no significant differences between subgroups. It wasrated lowly largely because the killing was perceived as accidentalmore than 60 percent said the killer bore no fault, the killing was unpremeditated or death wasunforeseeable. Those who thought this was a relatively less serious homicide were morelikely than those who regarded it more gravely generally to characterize the worsthomicides by reference to the killer's motive.

The necessity scenario (card E) was regarded as one of the three least serioushomicides by 63 per cent of the sample and, again, there were no significant differencesbetween subgroups. Nearly a quarter felt the killer had no alternative, or at least neededto save his own life. One in ten said it was not the killer's fault; slightly fewer thought thevictim must have known the risks involved, and about 5 per cent of respondents saidthey would have done what the killer did in the same circumstances. Respondents whogave this a low gravity rating were less likely than other respondents to describe the leastserious homicides as 'accidental', but more likely to identify the killer's motive as afactor in the worst homicides.

The mercy killing scenario was perceived by more than half the sample as the leastserious of the eight scenarios, as one of the two least serious by 72 per cent, and as one ofthe three least serious by 83 per cent of respondents. About three-quarters of women,those with higher qualifications and those without a religion placed this as one of thetwo least serious scenarios, compared to about two-thirds of men, those with fewerqualifications and those with a religion. It was relatively 'well' received primarily (i.e.four out of ten respondents) because the killing was 'for the right reasons' or an act ofmercy. Other common reactions were: the victim wanted to die, she had a poor qualityof life and was in great pain, people should have the right to die with dignity, and shewould have died anyway. Interestingly, when asked elsewhere in the survey for a generaldescription of the most serious homicides, those who rated this scenario very low on thegravity scale were more likely than those giving it a higher rating to focus on the killer'smotive. Yet they were less likely than other respondents to talk about the killer's motivewhen describing the least serious homicides, and more likely to focus on the victim'svulnerability.

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(b) Sentencing the highest and lowest rated scenariosThe views of respondents as to what they regarded as the appropriate sentences for thescenarios which they rated as either the worst or the least serious of the eight are shownin Tables 2 and 3 below. (They were not specifically asked to indicate whether theirresponses referred to die nominal sentence or the time actually served in prison,though some expressed the view that there should be no difference between die two.)

About one in six respondents recommended the death penalty for the burglary andduress killers, whereas just over half of the respondents thought that a determinateprison sentence of at least ten years would be appropriate. The sentences for the killersin the other scenarios in Table 2 were noticeably less severe. Obviously, it waspredictable that respondents would take a generally sympathetic approach towardssentencing in scenarios given the lowest rating (Table 3), diough it is worth noting thatthe self-defence scenario attracted some recommended short prison sentences, albeitthat the figures are clearly very small.

(c) Scenario variationsWhen asked to re-assess the burglary scenario (card A) on the basis that the victim wasaged 70 radier than 25, two-thirds of the respondents thought that the severityremained unchanged, whereas 30 per cent regarded the killing as more serious. At diesame time, 52 per cent diought the punishment should be tougher and 47 per cent saidit should be no different. The proportion of respondents who felt that die victim's agemade a difference decreased widi the level of educational qualifications: 41 per cent ofthose widi no qualifications regarded killing an older person as more serious comparedto only 26 per cent of those with degree-level qualifications.

Fifty-six per cent of die sample diought diat the killing would be more serious if diedrowning woman (card C) had been die man's daughter dian if she had been a complete

T A B L E 2 Sentence recommended for scenario given the highest severity rating

DeathNatural life imprisonment30 yrs + imprisonment20-29 yrs imprisonment15-19 yrs imprisonment10-14 yrs imprisonment5-9 yrs imprisonmentLess than 5 yrs imprisonmentNon-custodial sentencePsychiatric counsellingOther penaltyNo penaltyCan't say

Burglaryscenarion=473(%)

16201214151551_

-

1-

1

Duressscenarion=163(%)

161910141413651-

-

11

Drowningwomanscenarion=84(%)

21459

20221326188

Batteredspousescenario:n=54(%)

138-

-

151720_

16-

-

2

Self-defence, mercykilling, necessity andthin skull scenariosn=50(%)

1415858

275412-

64

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BARRY MITCHELL

TABLE 3 Sentence recommended for scenario given lowest severity rating

Mercykillingn=496{%)

Thin skullscenarion=144(%)

Necessityscenarion=124(%)

Batteredspousescenarion=53(%)

Drowning woman.self-defence, burglaryand duress scenariosn=86(%)

Death _ _ _ _ _Natural life imprisonment - - 2 - 230 yrs + imprisonment - - - - -20-29 yrs imprisonment - - - 1 115-19 yrs imprisonment - 2 - - 510-14 yrs imprisonment - - - - 15-9 yrs imprisonment 1 2 2 1 1 0Less than 5 yrs imprisonment 7 26 6 10 20Non-custodial sentence 5 23 10 9 5Psychiatric counselling 32 15 20 43 22Other penalty 2 1 2 1 3No penalty 51 27 51 23 21Can't say 2 6 6 13 12

stranger.19 Fifty-seven per cent said that the punishment ought to be tougher. Lookingat subgroupings, 63 per cent of those with no qualifications regarded letting a daughterdrown was more serious than letting a stranger drown, compared to 50 per cent of thosewith degree-level qualifications.

If the battered spouse (card F) killed her husband without any premeditation,two-thirds of the sample thought the offence would be less serious, with a further 30 percent saying it made no difference. Four-fifths thought the punishment should be lesssevere. No variations between subgroups could be detected.

Homicide generally

(a) The worst homicidesOnly 29 respondents chose one of the scenarios as representing the type of homicide towhich they would give a rating of 20, the worst possible type of killing.20 Fourteen chosecard A (the burglary scenario), ten chose card H (the duress scenario), two each chosecards F and B (the battered spouse and mercy killing scenarios), and one chose card D(the thin skull scenario).

In describing their idea of the worst possible homicide, respondents tended to focuson specific aspects of the killing; most commonly (71 per cent) the type of victim, butalso (67 per cent) the killer's apparent primary motive, and (38 per cent) the method ofkilling. Ten per cent of the sample referred to an actual homicide recently reported inthe media.

10 Forty-one per cent aid it should make no difference. Furthermore, the killing of a dose relative u likely to lead to tougher

penalties in, for example, Italy, Switzerland and Turkey.1 0

Five respondent! felt that all killings were of equal gravity and were thus unable to describe a 'worst possible' homicide.

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Fifty-five per cent of the sample felt that a 20-rated homicide involved a childvictim;21 other descriptions spoke of a 'defenceless victim' (37 per cent), an 'innocentvictim' (20 per cent), or an 'elderly victim' or policeman/fireman (9 per cent each).Women were more likely than men to choose child killings as the worst (61 per centcompared to 48 per cent), as did respondents with children or grandchildren (59 percent compared to 44 per cent of those without). The reasons most commonly given forchoosing child victims as representing the worst homicides were the innocence ordefencelessness of the deceased and the fact that children were deprived of a long lifeexpectancy (23 per cent, 58 per cent and 14 per cent respectively).

The next most commonly cited feature of the worst homicide concerned the killer'smotive, or lack of motive. A third of respondents regarded sexually motivated killingsas relevant here; 27 per cent mentioned premeditated or 'cold-blooded' killings, and17 per cent referred to apparendy motiveless homicides. Those from higher socialclasses were distincdy more likely to explain dieir choice of 'die worst homicide' interms of die killer's motive. This may be linked to die higher level of educationalqualificadons57 per cent of respondents widi no qualificadons mendoned modvescompared to 72 per cent of those widi qualificadons.

As to die relevance of die mediod of killing, about one in eight (13 per cent) talked ofhorrible or violent homicides, and 16 per cent mentioned cases in which die victim issubjected to torture or long suffering before dying. Abduction before deadi, especiallyof child victims, was mentioned by 7 per cent of the sample.

(b) Sentencing the worst homicidesThe views of respondents as to what they regarded as the appropriate sentences for dieeight scenarios and for what diey treated as the worst possible homicides are set out inTable 4 below.

TABLE 4 Sentences recommended for worst of scenarios and for worst possible homicides

Recommended sentence Worst of 8 scenarios (%) Wont possible homicide (%)Death sentence 13 55Natural life imprisonment 17 34At least 30 years'imprisonment 10 220-29 years' imprisonment 12 415-19 years'imprisonment 13 110-14 years' imprisonment 16 15-0 years' imprisonment 8 134 years' imprisonment 3 -1-2 years' imprisonment 2Other term of imprisonment 1 1Psychiatric treatment and/or counselling 2 -Other punishment 1 2No punishment 1 -Can't say/no response 3 2

51 In Uie 1905 MORI survey ihe highest level of support (i.e. 82 per cent) for the death penalty was for die inurder of a child.

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It is important to acknowledge that it was not possible to test the extent to which theserespondents agreed about the nature of what constitutes the worst homicides.Nonetheless, men were more likely than women to propose the death penalty (61 percent compared to 50 per cent), and slightly less likely than women to recommend anindefinite prison sentence (27 per cent compared to 39 per cent). Capital punishmentwas also more likely to be desired by those with fewer qualifications, and those from thelower social classes. There was no apparent significance in the sentencingrecommendations made by respondents with a religion and those without, althoughthere were some variations between different religions. Sixty per cent of the Church ofEngland Christians favoured the death penalty, compared to 39 per cent of the RomanCatholics and 50 per cent of other Christians.

(c) The least serious homicidesHomicides to which respondents attributed a 1 rating largely fell into three maincategorieseuthanasia or mercy killing (49 per cent), accidental killings (30 per cent),and killing in self-defence or self-preservation (13 per cent). Seven out of tenrespondents chose one of the eight scenarios as illustrative of the least serious homicide.Forty-three per cent chose card B (the mercy killing scenario), and 14 per cent pickedout card D (the thin skulls scenario).

There were slight variations between subgroups in rating euthanasia as the leastserious homicide. Women, parents and those with educational qualifications were morelikely than men, those without children and respondents with no qualifications toidentify euthanasia here (55 per cent, 52 per cent and 51 per cent compared to 44 percent, 41 per cent and 42 per cent respectively). Of those with a religion, RomanCatholics were less likely than other Christians to treat such homicides as the leastserious (38 per cent compared to 50 per cent of Church of England Christians). In astudy in which the fieldwork was carried out in the spring of 1995 (i.e. just a few monthsbefore the homicide study was undertaken), the authors of British Social AttitudesSurvey (hereafter the BSAS) concluded that 'in certain limited circumstances, there isoverwhelming public support for euthanasiafor the patient in an irreversible comaon a life-support machine (if their relatives agree) and for people with incurable andpainful illnesses who have requested euthanasia', and 'strong support for the notionthat patients should be able to rely on doctors to end their lives on the basis of writteninstructions, such as tfiose in "living wills'" (Jowell et al. 1996). For the BSAS, though,statistically significant factors were qualifications, disability, ethnicity and religiousbeliefs, so that the homicide survey only partially reiterates the BSAS findings.

The reasons for regarding euthanasia in this way focused primarily on the victim'sfeelings or situation: 37 per cent spoke of the victim's wish to die, 23 per cent of the rightto die, and 26 per cent cited the victim's poor quality of life and die fact of his/hersuffering.22 In addition, though, 42 per cent identified the killer's good motivekillingfor the 'right reasons', to relieve suffering, made it one of the least serious homicides.

"Six per cent of the sample said they would want to die in those circumstances, and 3 per cent said they would have done the sameas the killer did.

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Accidental killings were seen as amongst the least serious because there is no fault onthe part of the killer, because there is no intent to kill, and because the killer could nothave foreseen the outcome of his actions. This latter observation by respondents isparticularly interesting in the light of the law's view that a person's foresight of theconsequences of his action is evidence of his intention.23 Women and parents wereslightly less likely than men and those with no children to regard accidental homicidesas the least serious (26 per cent and 28 per cent compared to 35 per cent and 36 per centrespectively), as were Roman Catholics compared to other Christians (41 per centcompared to 29 per cent).

Just over one in eight respondents rated self-defence or self-preservation homicidesas the least serious. Most of those (83 per cent) referred to the killer's motiveheneeded to save his own life, or he had no alternative course of action. Some said thekilling was not deliberate or premeditated.

Offence categories (groups of scenarios)One of the principal aims of the survey was to determine whether the public recognizevariations in the gravity of homicides and, if they do, whether they feel such variationsshould be reflected in convictions for different offences such as murder andmanslaughter, or some alternative form of formal labelling. To this end, respondentswere asked to place the eight scenarios into different piles, with each pile representing aseparate category of crime.

The 811 respondents who completed this task created piles that made up 129different combinations of the scenarios. On average they created 4.4 piles, and men andthose with no educational qualifications tended to make slightly fewer piles than womenand those with such qualifications. Almost eight out often respondents felt that at leastone scenario represented a distinct type of crime and thus placed it in a 'pile' of its own.Half the sample treated card B (mercy killing scenario) in this way, and about a thirdsingled out cards A (burglary scenario) and C (drowning woman scenario) as distinctoffences.

In piles made up of two or more scenarios, the most common associations (44 percent and 37 per cent respectively) were between cards D (the thin skull scenario) and G(self-defence scenario), and cards A (burglary) and H (duress). To a slightly lesserextent respondents associated cards D (thin skull) and E (necessity) (31 per cent), andcards C (drowning woman) and E (necessity) (30 per cent).

It is obviously very difficult to state with any confidence what the outcome of thescenarios would be from a purely theoretical point of view, for the facts given are soscant. However, it might well be suggested that cards A, E and H would probably resultin murder convictions, and that B and D would lead to manslaughter verdicts. Theoriginal scenario F (battered spouse) theoretically looks like murder though in practicea manslaughter verdict would not be uncommon. Card C (drowning woman) is nocrime, unless the man is related to the woman (as in the varied version), in which casethe verdict should potentially be murder. Card G (self-defence scenario) is either no

" Though whether a person intends a consequence depends on wliether he foresees it with sufficient degree of certainty orprobability.

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crime (if the killer's use of force was reasonable and proportionate), or murder (if heacted unreasonably).

It was therefore interesting to find a good deal of linkage between scenarios A and H(37 per cent of respondents) and to a slightly lesser extent between E and H (21 percent), but much less so between A and E (only 8 per cent). Scenarios B and F were placedin the same category quite frequently (26 per cent), though fewer than one in five linkedB and D or D and F (17 per cent and 14 per cent respectively).

As for piles of three or more scenarios, the strongest associations (13 per cent) werebetween cards C, D and E and between D, E and G.

As indicated in the introduction, the law assumes that the public wishes to reflect itsviews about the varying degrees of gravity in homicides through the separate offences ofmurder and manslaughter. This labelling of crimes is also a means of encapsulating theessence of the wrongdoing and simultaneously manifesting fundamental distinctionsbetween different categories of offending.24 Thus, respondents were asked to give aname or description to each category they had created. Predictably, the names theysuggested varied considerably according to the scenarios in the category.

Half the respondents used the word 'murder' to denote categories linked with card A(the burglary homicide), and just over two-fifths used it to describe the categories linkedwith card H (the duress killing).25 In contrast, only about 7 per cent referred tocategories linked with cards B, D or E (the terminally ill woman, the thin skull woman,and the mountain climbers respectively).

The word 'killing' was used by about 15 per cent of respondents to describe categoriescontaining cards A, C, F, G and H (the burglary, the drowning woman, the batteredspouse, the self-defence killing, and the duress scenario), by 16 per cent to describecategories containing card E (the necessity killing), and by 19 per cent for those linkedwith card D (the thin skull scenario). One in ten used it for categories linked with card B(the mercy killing).

'Manslaughter' was chosen by roughly 15 per cent of respondents to describecategories associated with cards D (the thin skull scenario) and G (the self-defencekilling), and by about 10 per cent to describe homicides containing cards A (theburglary), H (the duress scenario) and card B (the mercy killing).

Another quite commonly used term was 'accident' (or 'accidental'). More thanfour-fifths of those who placed card D (thin skull) in a category by itself described it inthis way; so too did more than half the respondents who linked card D with otherscenarios. 'Accident' or 'accidental' also described 18 per cent of homicides linked withcard G (self-defence), 17 per cent for those linked with card E (necessity), and 12 percent for those linked with card C (drowning woman).

'Self-preservation' was chosen to depict homicides associated with cards G(self-defence), E(necessity), F(batteredspouse)and H (duress)by 21 percent, 20percent, 14 per cent and 11 per cent respectively.

** Tluu, the law not only distinguishes murder from manslaughter but also voluntary manslaughter (which usually denotes all theelements of murder together with some mitigating feature such as provocation), from mvohtnlary manslaughter (where the killing isnot 'wiili malice aforethought').

u Almost two-thirds (64 per cent) of respondents who grouped cards A and H in the same offence category described that

category as 'murder'. So too did more than a third of those Unking cards H and C (the drowning woman).

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The only other relatively frequendy used names were 'premeditated' or 'planned',which described homicides linked widi cards H (duress scenario), A (burglary), and cardF (battered spouse)by 15 per cent, 12 per cent and 12 per cent respectively.

Obviously, one of the arguably unique features of card C (woman drowning) concernsthe issue of guilt through doing nodiing (omission to act). It is worth noting that of the34 per cent of respondents who regarded this scenario as a 'category of its own', 9 percent described it as 'omission', 17 per cent as 'indifferent' or 'not caring', 10 per cent as'neglect', 7 per cent as 'negligence' and another 7 per cent as 'cowardice'.

Implications and Conclusions

It is always difficult to draw confident conclusions from a quantitative survey in theabsence of any more detailed qualitative follow-up research. Nonetheless, this surveyprovides strong evidence that the initial assumption made by the criminal law that diepublic recognize variations in the gravity of homicides is well founded. Furthermore,the survey clearly suggests diat die public would like these variations to be reflected inthe legal recognition of separate offences.

What is also encouraging for the law is that superficially at least die factors which diepublic identify as influencing die gravity of homicides broadly mirror its approach tothe issue, to the extent that gravity appears to be made up of two principal components,namely die harm caused26 and die offender's personal culpability. However, oneimmediate reservation here is diat die law differentiates between gravity in homicidessolely on die basis of die killer's culpability, apparendy assuming that eidier die harmelement remains constant for all cases or diat any variation in levels of harm isinsufficiendy significant to justify separate offence categorization.

Aldiough die majority of die factors respondents identified as affecting dieirassessment of gravity in homicide essentially concerned culpability, diere wereoccasions on which diey referred to some aspect of harmfulness. For example, there wasdie response from a number of people diat homicides involving young victims arerelatively serious because diere is a considerable loss of life expectancy. Thesignificance of harm variations was reinforced here by die further response thathomicides in which die victim is tortured or endures lengthy suffering are particularlyserious.27 Conversely, one of die reasons for perceiving die mercy killing scenario asamongst die least serious was die deceased's poor quality of life: in crude terms, beingkilled did not deprive the deceased of any significant right or interest.

Personal culpability, diough, is predictably and undeniably an important factor indie public's evaluation of homicides. Comparatively serious homicides were said to becharacterized by premeditation28 or planning or a victim who is defenceless orodierwise vulnerable. It was interesting to find that one of die criticisms of die passer-bywho made no attempt to save die drowning woman scenario (card C) was diat his actions

1 0 Unfortunately, there was insufficient opportunity in the survey to test, for example, public opinion on offence categorization

and sentencing where there b more than one deceased.17

Germany, Italy, Spain and Switzerland also look upon homicides where the victim suffered cruelty as particularly serious.M

Various other jurisdictions also treat premeditation or planning as aggravating features in homicide; see, for example, Italy,Luxembourg, Spain, Switzerland and Turkey.

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manifested a disregard for human life. This focus on an individual's attitude towardsharm or injury has been advocated as indicating one of the ways in which the law'straditional narrow emphasis on cognition through its construction of mens rea shouldbe reformed.29

Accident or lack of fault, or justifiable self-preservation (as where there is noreasonable alternative course of action) were associated with the least serioushomicides. However, one dimension of culpability which the law largely seeks to avoidwhen framing offences and identifying justifications and excuses concerns the killer'smotive, and yet this very factor featured quite prominently in respondents'assessments.50 Sexually motivated killings, or apparently motiveless killings wereregarded as amongst the most serious, whereas killing for 'good reasons' such as therelief of suffering or self-preservation rendered the homicide much more acceptable.Significant numbers of the public appear to have some concept of good and badmotives, but whether they have sufficiently similar concepts, whether law reformers candraft suitable definitions, and whether adequate safeguards can be created to ensurethat the law would not then be abused is not at all dear.

As well as identifying factors relating to harm and culpability, respondents alsoreferred to matters of wider social policy. For example, mercy killing was frequendygiven a low gravity rating on the basis that people ought to be able to exercise a right todie. (Again, there remains uncertainty about the adequacy of the level of support forthis and concern about the danger of abuse before there can be any serious suggestionto alter the law.) Conversely, the drowning woman scenario was often regardedrelatively seriously because the passer-by showed a disregard for human life; moreover,he could easily have made some sort of attempted rescue, and his failure to make anyattempt went 'against the normal rules of society'. Yet it should be acknowledged thatthese responses were given with the benefit of hindsightrespondents were told thatthe passer-by could swim and that the woman drownedand it is difficult to see howthis kind of censure could be satisfactorily accommodated by the law. For although itmay only imply there should be a general duty to take reasonable measures to try toprevent fatalitieson the basis that the prevention of death is sufficiently differentfrom the prevention of other forms of harm as to justify an exceptionthere areobvious problems. It may not be entirely clear at the relevant time whether death orsome lesser form of injury is likely, nor might the probability of death be apparent.Thus, it is not easy to see how a court could make die judgment in any given set of factsthat the defendant was duty-bound to attempt a rescue. Hitherto at least, the criminallaw has only imposed a duty to take positive action by virtue of an unambiguous set ofpre-existing circumstances.31

The study strongly suggests that ordinary people agree with the principle of fairlabelling, at least in relation to homicide, that the nature and magnitude of diewrongdoing should be reflected by die recognition of distinct offence categories.

" S e c , for example, Duff(1990) and my 'Culpably Indifferent Murder' (1996: 64-86). It b also worth noting that Dutch lawregards D'I indifference as to whether liii actions will kill another as indicative of an intent to do so.

3 0 Motive is quite commonly treated as an aggravating feature in other jurisdictions; see, for example, Germany, Italy, Spain,

Switzerland and Turkey.91

Such as the relationship (e.g. parent/child) between die parties, some contractual obligation on the defendant vis-a-vis thevictim, or where the defendant has created the danger.

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Unfortunately, though not unpredictably, die ways in which respondents placed diescenario cards into different piles did not generally provide any really dear indicationof how homicides might be categorized or subgrouped. The statistics did not suggestany obviously striking associations between groups of scenarios, and there wasinsufficient time available during the survey in which to ask respondents what preciselythe names of dieir piles signified. One of the potential complications here was dieuncertainty about the way in which ordinary people would use die distinction betweenthe nature of die convicdon (murder or manslaughter etc.) and die sentence, to reflectvariations in gravity.

Aldiough diere was insufficient time in which expressly to elicit respondents' views onprecisely where to draw die line between criminal and non-criminal homicides, someclues may be found in dieir comments about sentencing. The fact diat significantnumbers of respondents recommended no punishment for die killers in die mercykilling, the diin skulls scenario and die necessity scenario obviously implies a perceivedlack of moral culpability at least. The ratings and recommended sentences for otherhomicides involving self-defence, duress, battered spouses and omitting to try to savelife were more equivocal, making it unwise to offer any implications about justificationsor excuses for killing.

It is difficult to draw any precise conclusions about die public's assessment of mercykilling. That 43 per cent should rate it one out of 20 when advised diat die scale rangesfrom die least to die most serious homicide and reminded diat diey do not have to usedie extreme numbers on die scale, obviously suggests diat significant numbers ofpeople regard it as not amounting to a crime. At the same time diough, whilst diemedian rating was 1.12, die mean was 3.45. Of die 403 respondents who placed card Bin a category by itself, 80 per cent labelled it 'mercy killing' or 'eudianasia', whereas only3 per cent described it as 'not a crime' or 'not a killing', and whilst this dearly does notnecessarily imply an element of wrongfulness, nor does it automatically signal completelegitimacy or acceptance.

The diin skulls scenario (card D) also received a 1 rating from a number ofrespondents, and diis represents die kind of homicide which die Law Commission(1996) recendy recommended should cease to be treated as meriting a conviction formanslaughter, largely on the ground that die killer lacks suffident moral culpability.This type of homidde was rated generaUy slighdy higher than die mercy killingscenario, and was scored very similarly to die case of the mountain climbers (card E)where the essential issue was whether the circumstances adequately justified or excusedthe killing. Bearing in mind diat diere was dien a gap to die ratings of die next group ofscenarioscards C (drowning woman), F (battered spouse), and G (self-defencescenario)it may be diat respondents would not regard the diin skulls and mountaincumbers homicides as crimes but would regard higher rated scenarios as offences.Obviously, diough, diis is a matter which requires furdier examination.

Furthermore, whilst die law distinguishes between duress (by direats or bycircumstances) and self-defence as adequate justification or excuse for homidde, diedifferentiation recognized by die public appears to lead to radier different condusions.Mention has already been made of die unfortunate way in which respondents in thissurvey approached their evaluation of card H (die duress scenario) in which die defencemight be based on duress by threat of death. Nevertheless, whatever form ofmeasurement is used, die mountain dimbers scenario (card E) was regarded as

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distinctly less serious than the two men arguing scenario (card G) where self-defencewas appropriateand yet however much sympathy might be felt the law would treat themountain climber as a murderer, whereas the killer in self-defence would be acquitted ifthe court thought he had acted reasonably and had used proportionate force against hisvictim. Moreover, given the low rating of the necessity scenario, it may be that ifpresented with a homicide in which there is clearly no fair opportunity to adopt a thirdcourse of action, significant numbers of respondents would be very sympathetic towardsa person who killed under duress by threats.

The burglar who killed when disturbed by his victim (card A) was undeniably andpredictably treated, both in relative and absolute terms, as a very serious offender. Thatthis was a 'crime within a crime' was dearly an aggravating feature and, as such, itresembles the concept of'felony murder' which is widely regarded in the USA as one ofthe more serious forms of homicide, notwithstanding the fact that it is an example ofconstructive liability.52 However, respondents on average rated this scenario at" 15 to 16out of a possible maximum of 20, and only 14 people chose it as representing their ideaof the worst homicide. This surely suggests that for many members of the public thereare other, distinctly more serious, forms of homicide.

The point was earlier made that although respondents seemed to regard thedrowning woman scenario (card C) quite seriously, with an average rating of between 9and 10 out of 20, there was no opportunity to investigate the extent to which they havethought through the implications of extending the existing law requiring people totake positive action in specific situations. At the same time, it may well be that this ratingreflects the traditional view of'the sanctity of life' and that taking life is a unique form ofharm (Fletcher 1978), though this does not necessarily mean it is the most seriousharm.33

It was also quite predictable that respondents would want to see tougher penalties forthose who kill. However, it was unexpected that litde more dian half the samplefavoured any form of capital punishment in any circumstances, and they may have haddifferent forms of homicide in mind. For example, the British Social Attitudes 12threport (1995) showed that in four surveys between 1983 and 1994, 70-77 per cent ofrespondents favoured capital punishment for 'murder in the course of a terrorist act',67-71 per cent for 'murder of a police officer' and 59-66 per cent for 'other murders'.The current survey suggests diat the British Social Attitudes authors' comment thatpublic support for the re-introduction of the death penalty seemed to be 'at anirreducible minimum' is perhaps unduly pessimistic! Respondents in this latest surveyhad already spent some time thinking about different homicide situations reflectingvarying degrees of seriousness, so diat when asked to comment on sentencing diey werevery aware that some homicides do contain elements of mitigation. More specificquestions about punishment appear to attract more moderate responses. Nevertheless,an aggregate figure of just 55 per cent supporting the death penalty in anycircumstances is surprisingly low.

5 1 i.e. the accused may neither intend to kill nor knowingly risk killing another perion, but the law holds him responsible and

liable Tor killing because he ought not to have been committing a crime anyway. Other jurisdictions, such as Germany, Luxembourgand Turkey, also view killing in the furtherance of crime as especially serious.

u A n interesting analysis of the harm in homicide can be found in Joel Feinberg (1984: 79-83), where die author rehearsescompeting arguments about what amounts to 'the most serious harm'.

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The discovery that about a third of respondents favoured natural life imprisonmentfor homicides appears to support Hough's (1996) conclusions that although the publicoften advocates types of sentence which are in line with judicial practice, for seriouscrimes they tend to have punitive views about sentence length.*4 Large numbers ofrespondents in the survey preferred either a much longer determinate period ofimprisonment or a life sentence in the literal sense. It is commonly supposed that thepublic are bemused by the idea that life sentence prisoners should ever be released onlicence; to many, it is simply a contradiction in terms.

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London: HMSO.(1980), Fourteenth Report: Offences against the Person. London: HMSO.DAVIES, M. (1993), Punishing CriminalsDeveloping Community-based Intermediate Sanctions, esp.

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and the True Crime" Genre', Journal of Criminal Justice, 23/2: 143-52.FEINBERG, J. (1984), Harm To Others. New York: Oxford University Press.FLETCHER, G. P. (1978), Rethinking Criminal Law. Boston: Litde, Brown and Co.GOFF, R. (1988), The Mental Element in the Crime of Murder', Law Quarterly Review, 104:

30-59.GOLASH, D. and LYNCH, J. P. (1995),'Public Opinion, Crime Seriousness, and Sentencing Policy',

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HOUGH, M. and MOXON, D. (1985), 'Dealing with offenders: public opinion and the views ofvictims', The Howard Journal 24/2: 160-75.

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INDERMAUR, D. (1991), Crime Seriousness and Sentencing: A Comparison of Court Practice and thePerceptions of a Sample of the Public and Judges m Western Australia. Canberra: CriminologyResearch Council of Australia.

JOWELL, R., CURTICE, J., PARK, A., BROOK, L. andAHRENDT, D. (1995), British Social Attitudes: the12th report. Aldershot: Dartmouth.

JOWELL, R., CURTICE, J., PARK, A., BROOK, L. and THOMSON, K. (1996), British Social Attitudes: the13th report. Aldershot: Dartmouth.

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LAW COMMISSION (1996), Legislating the Criminal Code: Involuntary Manslaughter, Law Com. No.237. London: HMSO.

LEVI, M. and JONES, S. (1985), 'Public and Police Perceptions of Crime Seriousness in Englandand Wales', British Journal ofCriminology, 25/3: 234-50.

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(1996), 'Culpably Indifferent Murder', Anglo-American Law Review, 25/1: 64-86.ROBERTS, J. V. (1992), 'Public Opinion, Crime and Criminal Justice', Crime and Justice, 16:

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