Public perceptions of homicide and criminal justice.
There is a growing body of research evidence of the impact of public opinion about crime seriousness and sentencing policy both in this country (Levi and Jones 1985) and elsewhere (Golash and Lynch 1995), and policy makers are undoubtedly influenced by perceptions of public sentiment and the need to maintain public confidence in the criminal justice system (Indermaur 1991; Roberts 1992). At a theoretical level, it has been forcefully argued that public opinion has a crucial role to play in denouncing criminal behaviour and reaffirming society's values (Davies 1993).
The vast majority of criminological research has investigated attitudes across a wide range of offences. Various polls have elicited views on capital punishment, but apart from two snapshot surveys by the MORI organization in October 1990 (for the BBC programme Public Eye) and in August 1995(2) (for the News of the World newspaper), there is a conspicuous dearth of detailed investigation of opinion on homicide and how the criminal justice system should respond to it. The public appear to have an ambivalent interest in homicide; for some time there has been a demand for publications depicting detailed accounts of sensational and usually horrific killings, whilst those same crimes have been roundly condemned, especially by the press and other sections of the media.
Smith's (1984) study based on the inhabitants of a small area in Birmingham found that for 52 per cent of her sample the main source of information about crime was the media,(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 information on which to make reasoned evaluations of events, so that opinions are formed without any substantive knowledge of the issues (Hans and Slater 1983); (ii) the media invariably reports only the traditional punitive responses to crime (Barrile 1984; Roberts and Doob 1990); (iii) the media's apparent influence on attitudes towards crime, through programmes such as Crimewatch UK, Crime Stoppers and Crimebusters, 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 television necessarily influences the public's perception of crime--fictional crime programmes are watched primarily for entertainment rather than enlightenment.
Although the law recognizes very specific kinds of homicides through crimes such as assisting suicide and infanticide, the majority of criminal killings are categorized as either murder or manslaughter, with the former offence representing what are regarded as the most serious homicides. The criminal law has long recognized a distinction between murder and manslaughter (Kaye 1967), and the decision to retain separate offences rather than a single crime of, say, `criminal homicide', is based largely on the hitherto untested assumption that it accords with public opinion (Criminal Law Revision Committee 1980, paras. 15, 23 and 28; Goff 1988). It is further assumed that, in broad terms, public opinion on the issue mirrors the criminal law in its adoption of the principle of fair labelling, that the law should reflect degrees of wrongdoing through distinct offences, separately labelled and frequently carrying distinct sentencing provisions, so that offenders can be formally stigmatized in proportion to their blameworthiness (Criminal Law Revision Committee 1976, para. 7). The details of the conviction should indicate the degree of harm or damage and the offender's moral culpability, so that the label attached to the crime and the criminal represents a proportionate response to unlawful conduct (see, for example, Ashworth 1981; Glanville Williams 1983; Horder 1994). Abolition of the murder/manslaughter distinction would, it is argued, lead people to think that the law had been weakened and that `the law no longer regarded the intentional taking of another's life as being especially grave' (CLRC 1980, para. 15). Furthermore, the singling out of murder as representing what is commonly believed to be the worst homicides is also used to justify the imposition of a mandatory sentence of life imprisonment.(4)
Yet some of our most senior judges have publicly argued that in its current form murder does not always represent the most heinous form of homicide (see, e.g. Lord Kilbrandon in Hyam v. DPP,(5) and Lord Hailsham in R v. Howe et al. (6). Moreover, it seems that in practice the verdicts in homicide cases, whether dealt with as guilty pleas or as contested trials, do not necessarily reflect the theoretical differences between murder and manslaughter (Mitchell 1991). This apparent discrepancy could not simply be attributed to evidential issues but may well result from the personal views of those involved, both lawyers and jurors.
Assumptions about the state of public opinion have also been made in the rationalization of the law's approach to justifications and excuses in homicide. In cases where battered spouses kill their abusers, the law has been criticized for its narrow interpretation of reacting with `a sudden and temporary loss of self-control', often thereby depriving the defendant of a manslaughter conviction based on provocation. Wasik (1982), for example, argued for `less emphasis upon the need for an immediate reaction against gross provocation' and urged the law to recognize `shades of culpability, even in deliberate killings', claiming that `all the evidence there is points to the public's opposition to stigmatising killing under cumulative provocation a murder'.
In practice, mercy killing is not infrequently treated as manslaughter by straining the concept of diminished responsibility so as to produce what is perceived as a more just outcome, namely a manslaughter conviction which in turn does not force the court to impose a life sentence (CLRC 1976; House of Lords Select Committee 1989). The basis of this is that `[n]o-one connected with [a mercy killing] case wants to see the defendant convicted of murder' (CLRC 1980). A person who kills in self-defence theoretically has a defence even to a murder charge provided it was reasonable for him to use force in the "circumstances and no more than a reasonable degree of force was used; if he exceeds the bounds of reasonableness by even the smallest amount, he is likely to be convicted of murder--the law adopts an `all-or-nothing' approach (e.g. R v. Clegg ). Once again, though, this is a subject about which lawyers seem to think they have their fingers on the public pulse. In Palmer v. R , one of the leading authorities on the point, Lord Morris, commented, `If a jury thought that in a moment of unexpected anguish a person attacked had only done what he honestly and instinctively thought was necessary that would be most potent evidence that only reasonable defensive action had been taken'.(7) It is difficult not to harbour a suspicion that ordinary people would at least reduce 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.  to exclude duress by threats (of death or serious injury) as any kind of defence to murder is presumed to be broadly in line with public acceptance. Lord Hailsham remarked, `I have known in my own lifetime of too many acts of heroism by ordinary human beings of no more than ordinary fortitude to regard a law as either "just or humane" which withdraws the protection of the criminal law from the innocent victim and casts the cloak of its protection upon the coward and the poltroon in the name of a "concession to frailty'". However, commentators have been very critical of this `heroic argument' as a rationale of the law (Dennis 1987; Milgate 1988; and Walters 1988). Indeed, commenting on the ruling in Howe, Professor Smith (1987) claimed. `Even the most resolute and well-disposed citizen would be likely to comply (with the threat)'.
In collaboration with Social and Community Planning Research (SCPR), a survey was undertaken with the primary aim of testing the law's assumption that it has public support for the way in which it deals with homicides. To do this we set out to examine public opinion in England and Wales on a range of specific homicide scenarios, on homicides 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 between
(b) if they do,
(i) to identify factors which they treat as influencing the gravity of
(ii) to determine whether they feel such variations should be
reflected by the legal recognition of separate offences carrying separate
sentencing provisions; and
(c) to determine what kinds of sentencing powers the public think ought to
be available to the courts when dealing with defendants convicted of
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 small grant from the Nuffield Foundation, was in the form of moderated group discussions. It confirmed that the public recognize the concepts of murder and (albeit slightly less readily) manslaughter, though not exactly as they are construed in law, and it appeared to suggest that the public do recognize that some homicides are more serious than others--i.e, that they merit different levels of punishment and condemnation. A further pilot study tested a draft questionnaire and confirmed the feasibility of the general approach of using a series of homicide scenarios as part of a quantitative, interviewer-administered, questionnaire survey. The survey was based on a random sample designed to represent the general population in England and Wales, drawn from the Postcode Address File.(8) The response rate was 71 per cent, yielding 822 interviews. On key demographic variables, the sample reflected the population aged 18 or 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. She died 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 `put her out of her misery' for months. Eventually, he gave in to her request and suffocated her whilst she was asleep.
Card C: Woman drowning (hereafter the `drowning woman scenario') A young woman was walking her dog by a lake--she slipped and fell into the water. A passer-by saw her drowning in the lake. Although he could swim, instead of trying to save 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 a wall. 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 other tried 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 other climber 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. He came home one evening and started hitting her again. She felt that she couldn't stand any more abuse, so she waited until her husband was sleeping, then hit him over the head 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 fight. One of them picked up a screwdriver and lunged at the other. Fearing that he would otherwise be stabbed, the unarmed man grabbed a spanner, and in self-defence he hit the other man 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 local businessman. The man was told by the terrorists that he had a week in which to kill the businessman, 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 of offence category and sentencing. Respondents were asked to
(1) rank them in order of seriousness (i.e. those which were the most blameworthy and deserved the greatest punishment), and rate them on a 1 to 20 scale (with 20 representing 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.
Respondents were also asked to consider homicides generally and to describe what they regarded as the worst homicides and suggest how they should be sentenced, and to identify what they saw as the least serious killings.
The Homicide Scenarios
(a) Ranking the scenarios
Whether the average gravity of the eight scenarios is calculated by averaging respondents' rank orders, or by averaging their gravity scale ratings, the same ranking emerged. This is shown in Table 1 below.
TABLE 1 Ratings of homicide scenarios on 1-20 scale Mean Standard deviation Card A: burglary(10) 15.5 4.0 Card H: killer threatened with own life(11) 12.7 4.7 Card C: woman drowning(12) 9.8 5.4 Card G: two men arguing(13) 9.1 4.4 Card F: battered spouse(14) 8.1 5.5 Card D: woman with thin skull(15) 5.9 4.3 Card E: mountain climbers(16) 5.6 4.2 Card B: terminally ill woman(17) 3.5 4.1
The burglary scenario was perceived as the most serious homicide scenario by 53 per cent of the respondents. Three-quarters placed it in the first two, and almost nine out of ten put it within the three worst killings. Respondents under 25 and those aged at least 65 years were less likely to regard this as the most serious of the scenarios. Those with children, however, were more likely than those without to rate it as one of the two most heinous homicides (77 per cent compared to 67 per cent).
The most common reason for giving the burglary killing a high seriousness score was the fact that the killer was already committing a crime. More than four in ten said that he should not have been in the victim's home in the first place, and roughly three in ten reasoned he had set out with the intention of committing a crime (albeit burglary rather than murder or manslaughter). Thirteen per cent also thought the fact that the deceased was killed in her own home aggravated the matter. Other criticisms of the killer in card A were: he should have run away when confronted; the killing was premeditated,(18) there was no reason for the killing; the killer's motive was simply to save himself, and he must have intended to injure and was willing to use a weapon. Interestingly, those who regarded this scenario as relatively serious elsewhere in the survey described their perception of `the worst kinds of homicide' by reference to the vulnerability of the victim--the victim was innocent or defenceless etc.
Almost three-quarters of the sample placed the duress scenario in the three worst homicides. However, the rating of this scenario should be treated with caution since it appeared that some respondents were assessing the severity of the threat per se to the killer rather than his motives and justification. There were no significant differences between respondent subgroups. The most common reasons for regarding the scenario as comparatively serious implied that the killing was avoidable. Four out often thought the killer could have gone to the police, and a further four in ten said he had an alternative course of action. Just over a fifth regarded the fact that the killing was planned or calculated as the most aggravating feature, and about one in seven criticised the killer's motive--saving himself. Others pointed to the cowardly nature of the killing and to the victim's innocence.
The drowning woman scenario was generally placed third of the eight, though it provoked a wide range of responses. Forty-four per cent placed it in the worst three, 335 placed 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 more critically. The scenario most frequently (four in ten) received the comment that the killer should have tried to save her. Other aggravating features were the disregard shown for human life, behaving contrary to the normal rules of society, and the fact that the killer had an alternative course of action.
Like the drowning woman scenario the battered spouse scenario provoked a broad range of reactions. Almost a third rated it as one of the three worst cases, four out often thought it one of the three least serious, and 27 per cent perceived it as of middling severity. Interestingly, there were very few significant differences in the responses of subgroups. The severity rating varied considerably within each subgroup--age, 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 serious homicides (14 per cent compared to 25 per cent).
Many of the respondents who were relatively critical of the battered spouse scenario also identified the presence of an alternative course of action as a particularly aggravating characteristic. Others noted the fact that the killing was premeditated, and earlier in the survey those who treated this scenario as serious were more likely to describe the worst homicides by reference to the killer's motive. Those who rated the battered 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 she had suffered such abuse. Earlier in the survey these respondents, when describing their idea of the worst homicides, placed more stress than other respondents on the victim's vulnerability and less on the method of killing or the victim's suffering: when describing the 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 least serious homicides, and there were no significant differences between subgroups. It was rated lowly largely because the killing was perceived as accidental--more than 60 per cent said the killer bore no fault, the killing Was unpremeditated or death was unforeseeable. Those who thought this was a relatively less serious homicide were more likely than those who regarded it more gravely generally to characterize the worst homicides by reference to the killer's motive.
The necessity scenario (card E) was regarded as one of the three least serious homicides by 63 per cent of the sample and, again, there were no significant differences between subgroups. Nearly a quarter felt the killer had no alternative, or at least needed to save his own life. One in ten said it was not the killer's fault; slightly fewer thought the victim must have known the risks involved, and about 5 per cent of respondents said they would have done what the killer did in the same circumstances. Respondents who gave this a low gravity rating were less likely than other respondents to describe the least serious homicides as `accidental', but more likely to identify the killer's motive as a factor in the worst homicides.
The mercy killing scenario was perceived by more than half the sample as the least serious of the eight scenarios, as one of the two least serious by 72 per cent, and as one of the 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 the two least serious scenarios, compared to about two-thirds of men, those with fewer qualifications 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 of mercy. Other common reactions were: the victim wanted to die, she had a poor quality of life and was in great pain, people should have the right to die with dignity, and she would have died anyway. Interestingly, when asked elsewhere in the survey for a general description of the most serious homicides, those who rated this scenario very low on the gravity scale were more likely than those giving it a higher rating to focus on the killer's motive. Yet they were less likely than other respondents to talk about the killer's motive when describing the least serious homicides, and more likely to focus on the victim's vulnerability.
(b) Sentencing the highest and lowest rated scenarios
The views of respondents as to what they regarded as the appropriate sentences for the scenarios which they rated as either the worst or the least serious of the eight are shown in Tables 2 and 3 below. (They were not specifically asked to indicate whether their responses referred to the nominal sentence or the time actually served in prison, though some expressed the view that there should be no difference between the two.)
TABLE 2 Sentence recommended for scenario given the highest severity rating
Burglary Duress Drowning scenario scenario woman n=473(%) n= 163(%) scenario n=84(%) Death 16 16 2 Natural life imprisonment 20 19 1 30 yrs + imprisonment 12 10 4 20-29 yrs imprisonment 14 14 5 15-19 yrs imprisonment 15 14 9 10-14 yrs imprisonment 15 13 20 5-9 yrs imprisonment 5 6 22 Less than 5 yrs imprisonment 1 5 13 Non-custodial sentence - 1 2 Psychiatric counselling - - 6 Other penalty 1 - 1 No penalty - 1 8 Can't say 1 1 8 Battered Self-defence, mercy spouse killing, necessity and scenario: thin skull scenarios n=54(%) n=50(%) Death 13 14 Natural life imprisonment 8 15 30 yrs + imprisonment - 8 20-29 yrs imprisonment 5 15-19 yrs imprisonment - 8 10-14 yrs imprisonment 15 27 5-9 yrs imprisonment 17 5 Less than 5 yrs imprisonment 20 4 Non-custodial sentence - 1 Psychiatric counselling 16 2 Other penalty - - No penalty - 6 Can't say 2 4
TABLE 3 Sentence recommended for scenario given lowest severity rating
Mercy Thin skull Necessity killing scenario scenario n=496(%) n=144(%) n=124(%) Death - - - Natural life imprisonment - - 2 30 + imprisonment - - - 20-29 yrs imprisonment - - - 15-19 yrs imprisonment - 2 - 10 - 14 yrs imprisonment - - - 5-9 yrs imprisonment 1 2 2 Less than 5 yrs imprisonment 7 26 6 Non-custodial sentence 5 23 10 Psychiatric counselling 32 15 20 Other penalty 2 1 2 No penalty 51 27 51 Can't say 2 6 6 Battered Drowning woman, spouse self-defence, burglary scenario and duress scenarios n=53(%) n=86(%) Death - - Natural life imprisonment - 2 30 + imprisonment - - 20-29 yrs imprisonment 1 1 15-19 yrs imprisonment - 5 10 - 14 yrs imprisonment - 1 5-9 yrs imprisonment 1 10 Less than 5 yrs imprisonment 10 20 Non-custodial sentence 9 5 Psychiatric counselling 43 22 Other penalty 1 3 No penalty 23 21 Can't say 13 12
About one in six respondents recommended the death penalty for the burglary and duress killers, whereas just over half of the respondents thought that a determinate prison sentence of at least ten years would be appropriate. The sentences for the killers in the other scenarios in Table 2 were noticeably less severe. Obviously, it was predictable that respondents would take a generally sympathetic approach towards sentencing in scenarios given the lowest rating (Table 3), though it is worth noting that the self-defence scenario attracted some recommended short prison sentences, albeit that the figures are clearly very small.
(c) Scenario variations
When asked to re-assess the burglary scenario (card A) on the basis that the victim was aged 70 rather than 25, two-thirds of the respondents thought that the severity remained unchanged, whereas 30 per cent regarded the killing as more serious. At the same time, 52 per cent thought the punishment should be tougher and 47 per cent said it should be no different. The proportion of respondents who felt that the victim's age made a difference decreased with the level of educational qualifications: 41 per cent of those with no qualifications regarded killing an older person as more serious compared to only 26 per cent of those with degree-level qualifications.
Fifty-six per cent of the sample thought that the killing would be more serious if the drowning woman (card C) had been the man's daughter than if she had been a complete stranger.(19) Fifty-seven per cent said that the punishment ought to be tougher. Looking at subgroupings, 63 per cent of those with no qualifications regarded letting a daughter drown was more serious than letting a stranger drown, compared to 50 per cent of those with 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 per cent saying it made no difference. Four-fifths thought the punishment should be less severe. No variations between subgroups could be detected.
(a) The worst homicides
Only 29 respondents chose one of the scenarios as representing the type of homicide to which they would give a rating of 20, the worst possible type of killing.(20) Fourteen chose card A (the burglary scenario), ten chose card H (the duress scenario), two each chose cards 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 focus on specific aspects of the killing; most commonly (71 per cent) the type of victim, but also (67 per cent) the killer's apparent primary motive, anti (38 per cent) the method of killing. Ten per cent of the sample referred to an actual homicide recently reported in the media.
Fifty-five per cent of the sample felt that a 20-rated homicide involved a child victim;(21) other descriptions spoke of a `defenceless victim' (37 per cent), an `innocent victim' (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 cent compared to 48 per cent), as did respondents with children or grandchildren (59 per cent compared to 44 per cent of those without). The reasons most commonly given for choosing child victims as representing the worst homicides were the innocence or defencelessness of the deceased and the fact that children were deprived of a long life expectancy (23 per cent, 58 per cent and 14 per cent respectively).
The next most commonly cited feature of the worst homicide concerned the killer's motive, or lack of motive. A third of respondents regarded sexually motivated killings as relevant here; 27 per cent mentioned premeditated or `cold-blooded' killings, and 17 per cent referred to apparently motiveless homicides. Those from higher social classes were distinctly more likely to explain their choice of `the worst homicide' in terms of the killer's motive. This may be linked to the higher level of educational qualifications--57 per cent of respondents with no qualifications mentioned motives compared to 72 per cent of those with qualifications.
As to the relevance of the method of killing, about one in eight (13 per cent) talked of horrible or violent homicides, and 16 per cent mentioned cases in which the victim is subjected to torture or long suffering before dying. Abduction before death, especially of child victims, was mentioned by 7 per cent of the sample.
(b) Sentencing the worst homicides
The views of respondents as to what they regarded as the appropriate sentences for the eight scenarios and for what they treated as the worst possible homicides are set out in Table 4 below.
TABLE 4 Sentences recommended for worst of scenarios and for worst possible homicides
Recommended sentence Worst of 8 Worst possible scenarios (%) homicide (%) Death sentence 13 55 Natural life imprisonment 17 34 At least 30 years' imprisonment 10 2 20-29 years' imprisonment 12 4 15-19 years' imprisonment 13 1 10-14 years' imprisonment 16 1 5-9 years' imprisonment 8 1 3-4 years' imprisonment 3 - 1-2 years' imprisonment 2 - Other term of imprisonment 1 1 Psychiatric treatment and/or counselling 2 - Other punishment 1 2 No punishment 1 - Can't say/no response 3 2
It is important to acknowledge that it was not possible to test the extent to which these respondents agreed about the nature of what constitutes the worst homicides. Nonetheless, men were more likely than women to propose the death penalty (61 per cent compared to 50 per cent), and slightly less likely than women to recommend an indefinite prison sentence (27 per cent compared to 39 per cent). Capital punishment was also more likely to be desired by those with fewer qualifications, and those from the lower social classes. There was no apparent significance in the sentencing recommendations made by respondents with a religion and those without, although there were some variations between different religions. Sixty per cent of the Church of England Christians favoured the death penalty, compared to 39 per cent of the Roman Catholics and 50 per cent of other Christians.
(c) The least serious homicides
Homicides to which respondents attributed a 1 rating largely fell into three main categories--euthanasia 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 ten respondents 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 picked out card D (the thin skulls scenario).
There were slight variations between subgroups in rating euthanasia as the least serious homicide. Women, parents and those with educational qualifications were more likely than men, those without children and respondents with no qualifications to identify euthanasia here (55 per cent, 52 per cent and 51 per cent compared to 44 per cent, 41 per cent and 42 per cent respectively). Of those with a religion, Roman Catholics were less likely than other Christians to treat such homicides as the least serious (38 per cent compared to 50 per cent of Church of England Christians). In a study in which the fieldwork was carried out in the spring of 1995 (i.e. just a few months before the homicide study was undertaken), the authors of British Social Attitudes Survey (hereafter the BSAS) concluded that `in certain limited circumstances, there is overwhelming public support for euthanasia--for the patient in an irreversible coma on a life-support machine (if their relatives agree) and for people with incurable and painful illnesses who have requested euthanasia', and `strong support for the notion that patients should be able to rely on doctors to end their lives on the basis of written instructions, such as those in "living wills"' (Jowell et al. 1996). For the BSAS, though, statistically significant factors were qualifications, disability, ethnicity and religious beliefs, so that the homicide survey only partially reiterates the BSAS findings.
The reasons for regarding euthanasia in this way focused primarily on the victim's feelings or situation: 37 per cent spoke of the victim's wish to die, 23 per cent of the right to die, and 26 per cent cited the victim's poor quality of life and the fact of his/her suffering.(22) In addition, though, 42 per cent identified the killer's good motive--killing for the `right reasons', to relieve suffering, made it one of the least serious homicides.
Accidental killings were seen as amongst the least serious because there is no fault on the part of the killer, because there is no intent to kill, and because the killer could not have foreseen the outcome of his actions. This latter observation by respondents is particularly interesting in the light of the law's view that a person's foresight of the consequences of his action is evidence of his intention.(23) Women and parents were slightly less likely than men and those with no children to regard accidental homicides as the least serious (26 per cent and 28 per cent compared to 35 per cent and 36 per cent respectively), as were Roman Catholics compared to other Christians (41 per cent compared to 29 per cent).
Just over one in eight respondents rated self-defence or self-preservation homicides as the least serious. Most of those (83 per cent) referred to the killer's motive--he needed to save his own life, or he had no alternative course of action. Some said the killing was not deliberate or premeditated.
Offence categories (groups of scenarios)
One of the principal aims of the survey was to determine whether the public recognize variations in the gravity of homicides and, if they do, whether they feel such variations should be reflected in convictions for different offences such as murder and manslaughter, or some alternative form of formal labelling. To this end, respondents were asked to place the eight scenarios into different piles, with each pile representing a separate category of crime.
The 811 respondents who completed this task created piles that made up 129 different combinations of the scenarios. On average they created 4.4 piles, and men and those with no educational qualifications tended to make slightly fewer piles than women and those with such qualifications. Almost eight out of ten respondents felt that at least one 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 third singled out cards A (burglary scenario) and C (drowning woman scenario) as distinct offences.
In piles made up of two or more scenarios, the most common associations (44 per cent 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 lesser extent respondents associated cards D (thin skull) and E (necessity) (31 per cent), and cards C (drowning woman) and E (necessity) (30 per cent).
It is obviously very difficult to state with any confidence what the outcome of the scenarios would be from a purely theoretical point of view, for the facts given are so scant. However, it might well be suggested that cards A, E and H would probably result in murder convictions, and that B and D would lead to manslaughter verdicts. The original scenario F (battered spouse) theoretically looks like murder though in practice a manslaughter verdict would not be uncommon. Card C (drowning woman) is no crime, unless the man is related to the woman (as in the varied version), in which case the verdict should potentially be murder. Card G (self-defence scenario) is either no crime (if the killer's use of force was reasonable and proportionate), or murder (if he acted 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 per cent), but much less so between A and E (only 8 per cent). Scenarios B and F were placed in the same category quite frequently (26 per cent), though fewer than one in five linked B 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) were between 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 its views about the varying degrees of gravity in homicides through the separate offences of murder and manslaughter. This labelling of crimes is also a means of encapsulating the essence of the wrongdoing and simultaneously manifesting fundamental distinctions between different categories of offending.(24) Thus, respondents were asked to give a name or description to each category they had created. Predictably, the names they suggested 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 linked with card H (the duress killing).(25) In contrast, only about 7 per cent referred to categories 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 categories containing cards A, C, F, G and H (the burglary, the drowning woman, the battered spouse, the self-defence killing, and the duress scenario), by 16 per cent to describe categories containing card E (the necessity killing), and by 19 per cent for those linked with 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 describe categories associated with cards D (the thin skull scenario) and G (the self-defence killing), and by about 10 per cent to describe homicides containing cards A (the burglary), H (the duress scenario) and card B (the mercy killing).
Another quite commonly used term was `accident' (or `accidental'). More than four-fifths of those who placed card D (thin skull) in a category by itself described it in this way; so too did more than half the respondents who linked card D with other scenarios. `Accident' or `accidental' also described 18 per cent of homicides linked with card G (self-defence), 17 per cent for those linked with card E (necessity), and 12 per cent for those linked with card C (drowning woman).
`Self-preservation' was chosen to depict homicides associated with cards G (self-defence), E (necessity), F (battered spouse) and H (duress)--by 21 per cent, 20 per cent, 14 per cent and 11 per cent respectively.
The only other relatively frequently used names were `premeditated' or `planned', which described homicides linked with cards H (duress scenario), A (burglary), and card F (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) concerns the issue of guilt through doing nothing (omission to act). It is worth noting that of the 34 per cent of respondents who regarded this scenario as a `category of its own', 9 per cent 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 the absence of any more detailed qualitative follow-up research. Nonetheless, this survey provides strong evidence that the initial assumption made by the criminal law that the public recognize variations in the gravity of homicides is well founded. Furthermore, the survey clearly suggests that the public would like these variations to be reflected in the legal recognition of separate offences.
What is also encouraging for the law is that superficially at least the factors which the public identify as influencing the gravity of homicides broadly mirror its approach to the issue, to the extent that gravity appears to be made up of two principal components, namely the harm caused(26) and the offender's personal culpability. However, one immediate reservation here is that the law differentiates between gravity in homicides solely on the basis of the killer's culpability, apparently assuming that either the harm element remains constant for all cases or that any variation in levels of harm is insufficiently significant to justify separate offence categorization.
Although the majority of the factors respondents identified as affecting their assessment of gravity in homicide essentially concerned culpability, there were occasions on which they referred to some aspect of harmfulness. For example, there was the response from a number of people that homicides involving young victims are relatively serious because there is a considerable loss of life expectancy. The significance of harm variations was reinforced here by the further response that homicides in which the victim is tortured or endures lengthy suffering are particularly serious.(27) Conversely, one of the reasons for perceiving the mercy killing scenario as amongst the least serious was the deceased's poor quality of life: in crude terms, being killed did not deprive the deceased of any significant right or interest.
Personal culpability, though, is predictably and undeniably an important factor in the public's evaluation of homicides. Comparatively serious homicides were said to be characterized by premeditation(28) or planning or a victim who is defenceless or otherwise vulnerable. It was interesting to find that one of the criticisms of the passer-by who made no attempt to save the drowning woman scenario (card C) was that his actions manifested a disregard for human life. This focus on an individual's attitude towards harm or injury has been advocated as indicating one of the ways in which the law's traditional narrow emphasis on cognition through its construction of mens rea should be reformed.(29)
Accident or lack of fault, or justifiable self-preservation (as where there is no reasonable alternative course of action) were associated with the least serious homicides. However, one dimension of culpability which the law largely seeks to avoid when framing offences and identifying justifications and excuses concerns the killer's motive, and yet this very factor featured quite prominently in respondents' assessments.(30) Sexually motivated killings, or apparently motiveless killings were regarded as amongst the most serious, whereas killing for `good reasons' such as the relief of suffering or self-preservation rendered the homicide much more acceptable. Significant numbers of the public appear to have some concept of good and bad motives, but whether they have sufficiently similar concepts, whether law reformers can draft suitable definitions, and whether adequate safeguards can be created to ensure that the law would not then be abused is not at all clear.
As well as identifying factors relating to harm and culpability, respondents also referred to matters of wider social policy. For example, mercy killing was frequently given a low gravity rating on the basis that people ought to be able to exercise a right to die. (Again, there remains uncertainty about the adequacy of the level of support for this and concern about the danger of abuse before there can be any serious suggestion to alter the law.) Conversely, the drowning woman scenario was often regarded relatively 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 any attempt went `against the normal rules of society'. Yet it should be acknowledged that these responses were given with the benefit of hindsight--respondents were told that the passer-by could swim and that the woman drowned--and it is difficult to see how this kind of censure could be satisfactorily accommodated by the law. For although it may only imply there should be a general duty to take reasonable measures to try to prevent fatalities--on the basis that the prevention of death is sufficiently different from the prevention of other forms of harm as to justify an exception--there are obvious problems. It may not be entirely clear at the relevant time whether death or some 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 the judgment in any given set of facts that the defendant was duty-bound to attempt a rescue. Hitherto at least, the criminal law has only imposed a duty to take positive action by virtue of an unambiguous set of pre-existing circumstances.(31)
The study strongly suggests that ordinary people agree with the principle of fair labelling, at least in relation to homicide, that the nature and magnitude of the wrongdoing should be reflected by the recognition of distinct offence categories. Unfortunately, though not unpredictably, the ways in which respondents placed the scenario cards into different piles did not generally provide any really clear indication of how homicides might be categorized or subgrouped. The statistics did not suggest any obviously striking associations between groups of scenarios, and there was insufficient time available during the survey in which to ask respondents what precisely the names of their piles signified. One of the potential complications here was the uncertainty about the way in which ordinary people would use the distinction between the nature of the conviction (murder or manslaughter etc.) and the sentence, to reflect variations in gravity.
Although there was insufficient time in which expressly to elicit respondents' views on precisely where to draw the line between criminal and non-criminal homicides, some clues may be found in their comments about sentencing. The fact that significant numbers of respondents recommended no punishment for the killers in the mercy killing, the thin skulls scenario and the necessity scenario obviously implies a perceived lack of moral culpability at least. The ratings and recommended sentences for other homicides involving self-defence, duress, battered spouses and omitting to try to save life were more equivocal, making it unwise to offer any implications about justifications or excuses for killing.
It is difficult to draw any precise conclusions about the public's assessment of mercy killing. That 43 per cent should rate it one out of 20 when advised that the scale ranges from the least to the most serious homicide and reminded that they do not have to use the extreme numbers on the scale, obviously suggests that significant numbers of people regard it as not amounting to a crime. At the same time though, whilst the median rating was 1.12, the mean was 3.45. Of the 403 respondents who placed card B in a category by itself, 80 per cent labelled it `mercy killing' or `euthanasia', whereas only 3 per cent described it as `not a crime' or `not a killing', and whilst this clearly does not necessarily imply an element of wrongfulness, nor does it automatically signal complete legitimacy or acceptance.
The thin skulls scenario (card D) also received a 1 rating from a number of respondents, and this represents the kind of homicide which the Law Commission (1996) recently recommended should cease to be treated as meriting a conviction for manslaughter, largely on the ground that the killer lacks sufficient moral culpability. This type of homicide was rated generally slightly higher than the mercy killing scenario, and was scored very similarly to the case of the mountain climbers (card E) where the essential issue was whether the circumstances adequately justified or excused the killing. Bearing in mind that there was then a gap to the ratings of the next group of scenarios--cards C (drowning woman), F (battered spouse), and G (self-defence scenario)--it may be that respondents would not regard the thin skulls and mountain climbers homicides as crimes but would regard higher rated scenarios as offences. Obviously, though, this is a matter which requires further examination.
Furthermore, whilst the law distinguishes between duress (by threats or by circumstances) and self-defence as adequate justification or excuse for homicide, the differentiation recognized by the public appears to lead to rather different conclusions. Mention has already been made of the unfortunate way in which respondents in this survey approached their evaluation of card H (the duress scenario) in which the defence might be based on duress by threat of death. Nevertheless, whatever form of measurement is used, the mountain climbers scenario (card E) was regarded as distinctly less serious than the two men arguing scenario (card G) where self-defence was appropriate--and yet however much sympathy might be felt the law would treat the mountain climber as a murderer, whereas the killer in self-defence would be acquitted if the court thought he had acted reasonably and had used proportionate force against his victim. Moreover, given the low rating of the necessity scenario, it may be that if presented with a homicide in which there is clearly no fair opportunity to adopt a third course of action, significant numbers of respondents would be very sympathetic towards a person who killed under duress by threats.
The burglar who killed when disturbed by his victim (card A) was undeniably and predictably treated, both in relative and absolute terms, as a very serious offender. That this was a `crime within a crime' was clearly an aggravating feature and, as such, it resembles the concept of `felony murder' which is widely regarded in the USA as one of the more serious forms of homicide, notwithstanding the fact that it is an example of constructive liability.(32) However, respondents on average rated this scenario at 15 to 16 out of a possible maximum of 20, and only 14 people chose it as representing their idea of the worst homicide. This surely suggests that for many members of the public there are other, distinctly more serious, forms of homicide.
The point was earlier made that although respondents seemed to regard the drowning woman scenario (card C) quite seriously, with an average rating of between 9 and 10 out of 20, there was no opportunity to investigate the extent to which they have thought through the implications of extending the existing law requiring people to take positive action in specific situations. At the same time, it may well be that this rating reflects the traditional view of `the sanctity of life' and that taking life is a unique form of harm (Fletcher 1978), though this does not necessarily mean it is the most serious harm.(33)
It was also quite predictable that respondents would want to see tougher penalties for those who kill. However, it was unexpected that little more than half the sample favoured any form of capital punishment in any circumstances, and they may have had different forms of homicide in mind. For example, the British Social Attitudes 12th report (1995) showed that in four surveys between 1983 and 1994, 70-77 per cent of respondents 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 that the British Social Attitudes authors' comment that public support for the re-introduction of the death penalty seemed to be `at an irreducible minimum' is perhaps unduly pessimistic! Respondents in this latest survey had already spent some time thinking about different homicide situations reflecting varying degrees of seriousness, so that when asked to comment on sentencing they were very aware that some homicides do contain elements of mitigation. More specific questions about punishment appear to attract more moderate responses. Nevertheless, an aggregate figure of just 55 per cent supporting the death penalty in any circumstances is surprisingly low.
The discovery that about a third of respondents favoured natural life imprisonment for homicides appears to support Hough's (1996) conclusions that although the public often advocates types of sentence which are in line with judicial practice, for serious crimes they tend to have punitive views about sentence length.(34) Large numbers of respondents in the survey preferred either a much longer determinate period of imprisonment or a life sentence in the literal sense. It is commonly supposed that the public are bemused by the idea that life sentence prisoners should ever be released on licence; to many, it is simply a contradiction in terms.
(1) This survey was funded by two grants; one for 55,900 [pound sterling] from the Leverhulme Trust, the other for 15,700 [pound sterling] from Coventry University's Research Initiative.
(2) 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.
(3) 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.
(4) In the more recent of the two MORI surveys (i.e. the one conducted in August 1995) referred to above, 71 per cent said that rape of a child and 65 per cent thought that rape of an adult should justify the death penalty, and these figures are very similar to the percentages 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'  2 WLR 607 at 640.
(6) `Murder, as every practitioner of the law knows, though often described as one of the utmost heinousness, is not in fact necessarily so, but consists in a whole bundle of offences of vastly differing degrees of culpability, ranging from brutal, cynical and repeated offences like the so-called Moors murders to the almost venial, if objectively immoral, "mercy killing" of a beloved partner'  2 WLR 568 at 581.
(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 Zecevic v. DPP (1987) 61 ALJR 375 so that such cases are treated as murder. In the Republic of Ireland however, the Supreme Court has held that a person who uses no more force titan he honestly thought was necessary but objectively did use excessive force should be guilty of manslaughter; see People (A-G) v. Dwyer  IR 416.
(8) The interviews were conducted in October 1995.
(9) The 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 circumstances'; 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 seems to be whether tile accused's will was overpowered when committing ate offence (see Lord Edmund-Davies in DPP for N Ireland v. Lynch  AC 653 at 706), although a threat of future violence might persuade the court that D killed because of the threat hanging over him rather than because of the immediate pressure on him; see Lord Parker CJ in R v. Hudson and Taylor  2 QB 202 at 206, 207.
(10) Sixty-nine per cent of the 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, qualifications or religion, but there were some noteworthy variations based on social class and marital status. Those in skilled manual occupations rated the case slightly more seriously (16.29) than those in other social classes; and those living with a partner tended to rate it less severely (14.61) than others.
(11) Very few variations were found between the ratings of different sub-groups for card H (the duress scenario).
(12). Women rated card C (the drowning woman scenario) more severely than men (mean rating of 10.2 compared to 9.34), as did younger (18-24 year-olds) and older respondents (65 or over) compared to the intermediate age groups (mean ratings 11.22, 10.66 arid 9.26 respectively). Those with children rated the case less severely than those without (9.55, compared to 10.49).
(13) Women again rated card G (the self-defence scenario) more severely than men (mean rating 9.62 compared to 8.46); so too did older (75 or over) respondents (10.11 compared to 8.79 for the under-35s).
(14) Older (the 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 was distinctly less serious than those who were single and never married or widowed (7.8, 6.98 and 7.29 compared to 9.01 and 9.94 respectively). Additionally, those with a religion and those with no qualifications (mean ratings 8.49 and 8.96) regarded it more severely than those who had no religion and those with educational qualifications (7.27 and 7.78).
(15) Fifty-eight per cent of respondents gave this scenario no more than 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 and 4.44 compared to 6.1, 6.54 and 6.28).
(16) Sixty per cent gave this scenario no more than 5 out of 20. Women rated card E (the necessity scenario) more severely than men (6.19 compared to 4.98), as did younger (under 25) and older (65 or over) respondents compared to those in intervening age groups (6.43 and 6.73 compared to 5.15). Widowed and single respondents thought this case was more serious than their married counterparts (6.34 and 6.1 respectively compared to 5.31).
(17) 77.8 per cent rated this scenario at 4 or less. Single respondents who had never married 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 arid 2.50 respectively). Those with a religion also gave it a higher rating (3.84) than those who did riot have one (2.56), as did respondents with no qualifications (4.24) compared to those with qualifications (3.13). Similarly, respondents at tire two ends of the age spectrum thought card B merited a higher score (4.51 arid 4.61 from 18-24 yeas' olds and 65 years or more respectively) than those between 25 and 64 (2.90).
(18) The contrary was suggested in the facts.
(19) Forty-one per cent said it should make no difference. Furthermore, the killing of a close relative is likely to lead to tougher penalties in, for example, Italy, Switzerland and Turkey.
(20) Five respondents felt that all killings were of equal gravity and were thus unable to describe a `worst possible' homicide.
(21) In the 1995 MORI survey the highest level of support (i.e. 82 percent) for the death penalty was for the murder of a child.
(22) 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 same as the killer did.
(23) Though whether a person intends a consequence depends on whether he foresees it with sufficient degree of certainty or probability.
(24) Thus, the law not only distinguishes murder from manslaughter but also voluntary manslaughter (which usually denotes all the elements of murder together with some mitigating feature such as provocation), from involuntary manslaughter (where the killing is not `with malice aforethought').
(25) 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 linking cards H and C (the drowning woman).
(26) Unfortunately, there was insufficient opportunity in the survey to test, for example, public opinion on offence categorization and sentencing where there is more than one deceased.
(27) Germany, Italy, Spain and Switzerland also look upon homicides where the victim suffered cruelty as particularly serious.
(28) Various other jurisdictions also treat premeditation or planning as aggravating features in homicide; see, for example, Italy, Luxembourg, Spain, Switzerland and Turkey.
(29) See, for example, Duff (1990)and my `Culpably Indifferent Murder' (1996: 64-86). It is also worth noting that Dutch law regards D's indifference as to whether his actions will kill another as indicative of an intent to do so.
(30) Motive is quite commonly treated as an aggravating feature in other jurisdictions; see, for example, Germany, Italy, Spain, Switzerland and Turkey.
(31) Such as the relationship (e.g. parent/child) between the parties, some contractual obligation on the defendant vis-a-vis the victim, or where tire defendant has created the danger.
(32) i.e. the accused may neither intend to kill nor knowingly risk killing another person, but the law holds him responsible and liable for killing because he ought not to have been committing a crime anyway. Other jurisdictions, such as Germany, Luxembourg and Turkey, also view killing in the furtherance of crime as especially serious.
(33) An interesting analysis of the harm in homicide can be found in Joel Feinberg (1984: 79--83), where the author rehearses competing arguments about what amounts to `the most serious harm'.
(34) Generally, research evidence presents a slightly mixed picture of the relationship between public opinion and judicial practice in sentencing. Earlier studies in England suggested a good deal of correlation between the two (e.g. Hough and Moxon 1985). In the USA, Canada and Australia, the balance of the evidence did `not sustain the conclusion that the public is overwhelmingly more punitive than the courts' (Roberts 1992).
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DPP for Northern Ireland v. Lynch  AC 653 Hyam v. DPP  2 WLR 607 Palmer v. R  AC 814 People (A-G) v. Dwyer  IR 416 R v. Clegg  1 AC 482 R v. Howe et al. 2 WLR 568 R v. Hudson and Taylor  2 QB 202 Zecevic v. DPP (1987) 61 AJLR 375
FRANS WILLEM WINKEL, School of International Studies and Law, Coventry University, Coventry.
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|Title Annotation:||Delinquency and Deviant Social Behaviour|
|Publication:||British Journal of Criminology|
|Date:||Jun 22, 1998|
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