A new partial defence for the mercy killer: revisiting loss of control

Abstract

It is a truism to assert that mercy killing amounts to murder under the criminal law of England and Wales, but this does not reflect reality insofar as a murder conviction is a very unlikely outcome, even where cases are pursued through the criminal justice system. Of what he terms the 'mystery of the disappearing murderers', Huxtable writes: 'the law is geared towards ensuring that mercy killers reappear in most cases as either assistants in suicide or manslaughterers'. Each of these routes allows for a more flexible sentencing response than the mandatory life sentence imposed for murder, and avoidance of the imposition of an offence label deemed inappropriate. Whilst they may achieve similar ends, however, they comprise very different offences, and my focus here is on the availability of voluntary manslaughter. I shall not engage in any meaningful way with the normative arguments about whether or not mercy killing should be lawful, or indeed broader questions of policy and the criminal law in relation to the end of life, beyond making the relatively uncontentious assumption that murderer is an inappropriate label for a mercy killer in the vast majority of cases, especially in light of the continuing existence of the concomitant mandatory life sentence.