LittleLaw looks at… What do 1st and 2nd degree murder really mean?
Your guide for understanding Hawaii 5-0
July 16, 2020
4 min read
What’s going on here?
Murder, 1st degree, 2nd degree… They seem to be everywhere, whether in US detective thrillers or more recently in the media regarding the sentences given to the officers responsible for the death of George Floyd. But what do they equate to in “real” (English and Welsh) law?
What is "murder"?
The starting point is to define murder in English Law. For some of you, this will be a throwback to a criminal law exam. The defendant (D) can commit the crime if the following criteria are satisfied:
- D must be of sound mind;
- The killing must be unlawful (i.e. no defences apply);
- D must kill a reasonable person in being (This means being born alive and breathing – AG Ref No 3  All ER 396);
- Under the Queen’s Peace (R v Adebolajo  EWCA Crim 2779);
- With intent to kill or cause grievous bodily harm (GBH). ¹
If D satisfies all the above criteria, the prosecution must then demonstrate that there is a causal link between D’s act and the death of the victim (V). In law, this is known as causation. Causation is quite a complex topic but it can be broken down into factual causation, the “but for test” (see R v White  2 KB 124) and legal causation, meaning that D has to be the “operating and substantial cause of the victim’s death” (See R v Pagett  76 Cr Appl R 279).
So, what is "manslaughter"?
In English law, manslaughter is the other offence which constitutes homicide. Convicts can be sentenced up to life in prison.
There are three ways which D can commit manslaughter. They are:
- D killed with the intention to kill or cause grievous bodily harm (GBH) but a partial defence applies (voluntary manslaughter);
- Gross negligent conduct which did kill (gross negligence manslaughter);
Or unlawful conduct which involved the danger of some harm (unlawful/dangerous act manslaughter). 2
Back to the degrees
In the US, murder is classified in a different manner, considering intention and how the act was committed. This is usually classified as either 1st or 2nd degree murder, although 3rd degree murder does exist. This can vary from state to state, but let’s break down the usual criteria.
1st degree murder is the most serious of the classifications and to convict a D the following criteria must apply:
- D must have planned to carry out the killing (premeditation element);
- There must be an element of malice. 3
The punishment for this is either a life sentence or the death sentence if convicted in a US state with capital punishment.
2nd degree murder in the US requires the following:
- The act was not deliberate (no premeditation)
- Intention to cause harm but not to kill. 4
The key difference is the punishment, as the death sentence is usually not available for 2nd degree murder. 3rd degree murder, in some US states, is the term for manslaughter, although most of the time it will be referred to simply as manslaughter.5 It has the same definitions as in English law, being classified as either voluntary or involuntary.
Does UK homicide law need amending?
In 2006 the Law Commission, in a report titled Murder, Manslaughter and Infanticide, suggested that UK law on homicide should be reformed and a similar classification system to that in the US implemented. This would involve a three-tier structure of 1st and 2nd degree murder, as well as manslaughter.6
The report suggested the following:
1st Degree Murder
2nd Degree Murder
Any amendment to homicide law is significant as these offences carry the most serious restriction; that of personal liberty. Currently, there is a mandatory life sentence and judges have no discretion with regards to sentencing. The argument for change, as with any area of law, is that offences and offenders differ in every case; a degree system allows for proportionate punishments ensuring justice in every case.
The suggested amendments were ignored, given that the Coroners and Justice Act 2009 omitted any such changes.
LittleLaw’s Verdict: A murder most confusing…?
Although the US and the UK are still under two very different systems, some have called for an overhaul on homicide laws in the English legal system. Part of the reason is that some of the rules governing homicide have remained unchanged since the 17th century. The last large-scale attempt at reform was in 2016 with the then Minister for Courts and Justice, Oliver Heald, resisting the urge for change.7
The fact the law in England and Wales has remained unchanged for so long, combined with subsequent amendments, means the core law is a mess with multiple statutes guiding lawyers. It can also be argued that the law creates injustice as all crimes are treated the same. For example, if someone intended GBH but in fact causes the victim’s death, the offence is still a life sentence. This is something the US classification system mitigates for by giving judges discretion in sentencing.
At least at the moment, murder in the UK and the US will keep their current degrees of separation.
Report written by Michael Johnson
Share this now!
- Crown Prosecution Service, Legal Guidance on Homicide: Murder & Manslaughter.
- Cornell Law School, First Degree Murder.
- Cornell Law School, Second Degree Murder.
- Massey McClusky & Fuchs, What is the difference between first and second-degree murder? (October 2018).
- Professor David Ormerod QC, Law Commission Consultation Murder, Manslaughter & Infanticide.
- Alan Travis, Murder Law will not be reformed, Justice Minister Tells MPs, (14th September 2016).
Check out our recent reports!