Homicide Law for Vulnerable Defendants: Considerations for Law Reform in England and Wales

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Introduction

The Law Commission of England and Wales has been asked to review the law relating to homicide offences, including partial defences to murder, full defences in homicide cases, and the sentencing framework for murder. In our 2006 report on murder, manslaughter and infanticide, we described the law governing homicide as a “rickety structure set upon shaky foundations” (para 1.8), noting the piecemeal development of the law and the lack of certainty or clarity of many of the existing rules. However, most of our 2006 recommendations for reform were not implemented. In addition, as society and the law have moved on, legislative developments have exposed additional limitations with the existing law.

This blog post will explore whether the current homicide law in England and Wales fails to recognise the vulnerability of defendants. Drawing from the Law Commission’s Call for Evidence (2025) in the review of homicide law, it will highlight areas where vulnerable defendants in general, and some categories of vulnerable defendants in particular, may not be adequately protected by the law. It will also identify possible options for reform relevant to vulnerable defendants.

The review touches on many aspects of homicide law, some of which have particular significance for defendants whose individual characteristics make them vulnerable. In addition, shortcomings in the law of homicide, including its lack of clarity, accessibility and consistent application, can make any person ‘situationally’ vulnerable by virtue of their status as a defendant. Wholesale law reform, rather than piecemeal development of the law, provides an opportunity to address some of these shortcomings.

The structure of homicide offences

The existing two-tier structure (murder and manslaughter) has been criticised for failing to respond appropriately to the wide range of fault elements in homicide cases (Report on murder, manslaughter and infanticide, 2006, paras 1.15 to 1.31). This may subject a greater number of defendants to the mandatory life sentence, limiting the extent to which culpability and vulnerability are reflected in sentencing.

The lack of accuracy poses fair labelling concerns throughout the criminal justice process.  For example, an over-inclusive murder label affects all areas of the process, from the procedural rules governing bail to the process of rehabilitation and parole post-conviction (Chalmers and Leverick 2008). The stigma follows defendants for the rest of their lives, and may also pose accessibility concerns. For many defendants, the court setting is unfamiliar, with complex legal language, customs and procedures (Jacobson et al 2015). If vulnerable defendants are unable to understand the role they are alleged to have played or the law that applies to their case, they may be unable to engage fully with the proceedings, leaving them at an inherent disadvantage in court.

To the extent that the existing structure may not accurately reflect culpability, it creates unfairness for defendants. While the existence of partial defences may go some way towards recognising lower degrees of culpability, they are not a panacea. For example, the reformulated defence of diminished responsibility excludes cases that do not fall under “recognised medical conditions” (Kennefick 2011). As a result, vulnerable defendants who do not fit within that relatively narrow bracket may be convicted of murder and subject to the mandatory life sentence.

One possible solution, recommended in our 2006 report, is to replace the existing two-tier structure with a three-tier structure of first-degree murder, second-degree murder and manslaughter. This structure could better reflect culpability and confine the mandatory life sentence to the most serious kinds of killings. However, further consideration about how this structure would interact with other areas of homicide law, such as that of joint enterprise liability, is warranted.  

Joint enterprise liability

Another area of homicide law criticised for its adverse impact on some vulnerable defendants (due to their characteristics or individual circumstances) is joint enterprise liability. Some concerns have been raised that the doctrine of joint enterprise after the Supreme Court judgment in Jogee (2016) continues to be applied disproportionately to some categories of defendants in homicide cases, namely young adults, Black men and boys, and female victims of domestic abuse (Waller 2024).

Recent research shows that women who are marginalised or with a prior history of abuse have been convicted of homicide offences under joint enterprise when they had a peripheral involvement in the offence committed by their abusive partners. This is due to myths and gender-based stereotypes portraying women as either bystanders who failed to prevent the commission of the offence, or whose mere presence encouraged or actively incited the (male) principal perpetrator (Clarke and Chadwick 2020).

Apart from its impact on categories of vulnerable defendants, joint enterprise liability underscores the persisting problems with fair labelling and proportionate sentences in cases of an accessory who is convicted for the same offence committed by the principal.

    Victims of domestic abuse who kill their abusers

    In another post on this blog, we discussed historic and modern understandings of domestic abuse, and how these feed into the challenges faced by victims of domestic abuse who kill their abusers (Pope and Jenkins 2025). There has been widespread criticism of the way homicide law deals with this category of defendants. Critics have observed that homicide law fails to recognise the vulnerability of (mostly female) victims of domestic abuse who kill their (mostly male) abusers due to gendered social constructions and stereotypes. These defendants may face significant hurdles when they seek to rely on partial defences to murder and complete defences such as self-defence.

    According to a report of Centre for Women’s Justice (2021), for example, women who kill tend to rely on partial defences rather than full defences, and to plead guilty to manslaughter rather than face a trial. Such pleas may be based on “systemic disincentives” in the law, including the murder label attached to a conviction and the resulting mandatory life sentence.

    Reliance on partial defences has also proved problematic for this category of vulnerable defendants. Despite the reform of loss of control and diminished responsibility in 2009, many have criticised their restrictive requirements. For example, loss of control disregards that the reaction of an abused woman does not necessarily align with that of an ideal person with a “normal degree of tolerance and self-restraint” (Edwards 2010); and diminished responsibility “pathologises a normal response to domestic abuse” (Wade Review 2023, para 9.6.2) by requiring a defendant to plead a “recognised medical condition”.  

    Some options have been suggested to address these concerns, including: the introduction of a partial defence of “self-preservation”, applicable in cases falling short of other partial or full defences; or the introduction of a defence modelled on the existing householder self-defence, permitting the use of disproportionate (but not grossly disproportionate) force against their abuser (Call for Evidence 2025, para 4.22). A similar result may also be achieved through reform of the existing law of self-defence and of partial defences, with a view to taking into account the wider context against which the killing occurred, including a history of prior abuse or violence when evidentially relevant.

      Sentencing for murder

      Murder carries a mandatory life sentence. In most cases, however, an offender can apply for release on licence after a minimum term to be spent in prison. Schedule 21 to the Sentencing Code sets out the rules for the calculation of the minimum term, and includes aggravating and mitigating factors to be considered by the sentencing judge. Evidence suggests that the current sentencing framework for murder in Schedule 21 has led in recent years to an overall “sentence inflation” (Gauke Review 2025, p 144). Many have called into question the proportionality of sentences to the various degrees of blameworthiness and the wider circumstances of vulnerable defendants. The Court of Appeal, too, has criticised the starting points, remarking that they can “present a sentencer with considerable difficulties in his quest to match the penalty to the infinitely variable circumstances of crime” (Griffiths and others 2012).

      Some have expressed concern that victims of domestic abuse who kill their abusers receive sentences which are not proportionate to their culpability. The reason for this can be found in factors such as the lack of understanding of domestic abuse, the 25-year starting points in cases where a knife or other weapon was brought to the scene, and the difficulty in relying on defences discussed above (Domestic Abuse Commissioner and Victims’ Commissioner, 2021).

      A complete review of Schedule 21 is needed to consider how the vulnerability of defendants should be taken into account during the sentencing exercise.

      Conclusion

      The law of homicide in England and Wales and its piecemeal reform in recent years have failed to adequately consider the reality that all defendants are potentially vulnerable when the law does not accurately reflect their culpability, and that some categories of vulnerable defendants are particularly affected by these shortcomings. A clearer structure of homicide offences, due consideration of domestic abuse and a proportionate sentencing framework for murder contribute to the fairness of homicide law, which in turn ensures an enhanced protection of vulnerabilities throughout the criminal justice process. The Law Commission’s homicide review provides an opportunity to reconsider homicide law holistically, including issues which were not in the scope of the earlier review (such as the sentencing framework for murder).

      Further details on the homicide review are available on the homicide project page. The Call for Evidence is available here.  For any queries, please email us at homicide@lawcommission.gov.uk.

      References

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