WITH MALICE AFORETHOUGHT
A STUDY OF THE CRIME AND PUNISHMENT FOR HOMICIDE

by Louis Blom-Cooper Q.C. and Terence Morris
Oxford: Hart Publishing, 2004

Once in a while one has the signal pleasure of coming across a truly remarkable book, a book that serves as a pathway to enlightened thought on a given subject and which makes plain the sheer joy of scholarship. With Malice Aforethought A Study of the Crime and Punishment for Homicide is such a book. Indeed, in addition to these notable qualities, the authors have infused their book not only with their estimable erudition but also with the passion of the advocate who believes fundamentally in the cause being advanced. Hence, the product is an able réquisitoire against a penalty, life imprisonment, that has been selected to sanction an offence that is poorly defined by lawmakers, poorly understood by the community at large, and largely ineffective in achieving its supposed objective. In effect, by drawing an unanswerable indictment condemning the penalty, the authors have also drawn an airtight case against an offence that must be significantly recast if we wish the very notion of this ultimate offence itself to begin to be perceived by the community at large as being influenced “by malice aforethought”. Indeed, one cannot help but conclude that if the legislators of every political persuasion are resolute in pursuing a course of conduct even after becoming apprised not only of the lack of utility flowing from the offence and potential sanction but of the apparent harm done to the respect the community enjoys of both the Law and those who administer it, it must be that their motivation is malicious and that such malice is held and advanced de propos délibéré.

How have the authors succeeded, not only in citing authority suggesting that the law of murder and the penalty scheme is a “mess”, as remarked upon on page ¹, but also in demonstrating the soundness of this proposition? By means of a sound analysis that is drawn against the background of 12 seemingly disparate chapters touching upon a variety of subjects including the contributions of Sir Edward Coke, the use of experts at trial, and the patently inconsistent definitions and penalties that arise in cases of misconduct leading to death that are the result of the use of a motor vehicle as opposed to a more conventional murder weapon, to cite but three examples. The result is an arresting and rich tableau of arguments that make plain that the law of murder, and the concomitant selection of a proportionate penalty, is more a matter of faith in a hoped-for fair result than a scientifically rigorous mechanism of fact finding and allocation of moral blameworthiness leading both to denunciation and deterrence in all cases, and to reformation in meritorious instances. Stated otherwise, the learned authors have put the law of murder on trial, and the penalty scheme, and have shown convincingly that justice is achieved rarely, and only as the result of happenstance.

Leaving aside these generalities, it will be in order to draw precise attention to three particular elements of the authors’ thesis in order to illustrate the profound merits of their contention. I have chosen to consider the issues of domestic violence, moral blameworthiness, and the role of judges. Readers are encouraged nevertheless to review the instruction found throughout the book on matters of interest such as “Corporate killing” (pp. 133-146) and the appellate process (pp. 155-160), to name but two examples.

Turning firstly to domestic violence, it is noteworthy that we are made to understand how the present legislative and sentencing scheme fails both to protect and to bring about justice. As we read on pages 10, 19, 91, 111-113, certain acts involving persons in romantic relationships ought not to be considered criminal as they ought to be defended successfully on the grounds of self-defence while others that are not prosecuted ought to be within the brief of the prosecution service, and the impediment to reversing this unfortunate state of affairs is the present muddled state of the law.
The discussion of moral blameworthiness in With Malice Aforethought is particularly worthy of commendation by reason of the emphasis placed (once more) by the authors on the illogical state of the law, marked by certain actions being denounced as capital in nature (and in consequent punishment) but that are far from blameworthy in light of the actual demonstration of malice, if any, by the offender. The most striking example is the case of provocation, as discussed on pages 53-57 (see also pp. 42-44, 59-61, 65-66, 70-71, 119-120, and 130).

Lastly, what do the authors contend is the role of judges in the recast system of criminal justice for the offence of unlawfully taking a life? At the outset, on pages 2-3, we are informed, “… if we cannot trust the judges, not least in imposing sentence, we can trust no one. It is a particular irony that at a time when the intellectual quality and independence of thought characterizing the higher judiciary approaches an excellence hitherto unknown, that there should be a tension between executive and judiciary.” Throughout the subsequent pages, we are made to understand that the political harm that might arise were sentences perceived as being unduly lenient must be avoided, even though the average member of public understands poorly, and respects little, the rationale for imposing indefinite periods of detention in certain cases where lives are taken while comparatively modest sanctions are meted out for motor vehicular fatalities and monetary penalties might be selected to punish corporations guilty of some misconduct leading to the death of workers.1 Ultimately, the authors are skilled at demonstrating that the “one size fits all” mentality attendant to the law and sentence for murder is a horrific proposition that leads only to “one injustice is to be suffered by just about all” (refer also to pp. 2, 31, 33, 36, 66, 99, 101-102, and 110).

In the final analysis, the authors have succeeded in demonstrating fully and convincingly that the offence of murder must be thoroughly recast and the resulting penalty must be truly proportionate to the moral blameworthiness of the offender.² As they have stated on page 32, “Yet, since the very idea of crime is a social construct, certainly that which is statutory, it cannot pretend to a quality of immutability³ … Law is created … as a convenient statement of contemporary morality, inevitably subject to a time lag.” Thus, as we read on page 13 and pages 174-178, radical law reform is required to end this twin time and justice lag.

^1. In this respect, reference is made to the general discussion of the recent amendments to the Criminal Code of Canada designed to criminalize corporate culpability in the workplace found in Workplace Health & Safety Crimes, by Norm Keith, LexisNexis Canada/Butterworths: Aurora, 2004, and to “Westray and After: Power, Truth and News Reporting of the Westray Mine Disaster” by John McMullan, in (Ab)Using Power The Canadian Experience, edited by S.C. Boyd, D.E. Chunn and R. Menzies, Fernwood Publishing: Halifax, 2001, (pp. 130-145).

^2. Note the trenchant comments of James Lockyer on the grave number of convictions in England that are being reviewed for fear that they are further examples of miscarriages of justice as recorded on pages 20-22 of For The Defence, Vo. 25 (6).

^3. The same fundamental issues respecting the nature of a crime and the need for contemporary and forward-looking definitions of a crime are raised in various essays in the thoughtful publication, What Is A Crime? Defining Criminal Conduct in Contemporary Society, edited by the Law Reform Commission, UBC Press: Vancouver, 2004.