Despite recent reforms on the law of murder and voluntary manslaughter; including the special defence of diminished responsibility and loss of control, there are still inconsistencies present making the law unsatisfactory. This area of the law is in ‘dire need of reform’; as pointed out by the Law Commission in their 2006 report; Murder, Manslaughter and infanticide. The report stated how ‘The Law governing homicide in England and Wales is a rickety structure built upon shaky foundations. ’ One of the main areas pointed out by the Law Commission was the bit by bit development of the law leading to a lack of coherence.
This lack of coherence can be seen in the uncertain meaning of ‘intention’. Intention is a vital element of murder in regards to proving D having the sufficient mens rea. Despite multiple attempts by the House of Lords to explain what effect foresight of consequences has; s8 CJA 1967 it is still unclear. In Moloney it was ruled foresight of consequences was not intention; it was only evidence from which intention could be inferred. However, in the case of Woolin the HoL spoke of intention being found from foresight of consequences.
This left it unclear whether it is a substantive rule of law or a rule of evidence and the following case of Mathews ad Alleyne confused matters more after stating there was little difference between the two. In my view this could be resolved if a definition of foresight of consequences was provided in a statutory definition; making applying the law easier for jury’s. The Law Commission also pointed out that when Parliament passed the Homicide Act in 1957 they had never intended a killing to amount to murder unless the D realised his conduct might cause death.
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However, currently where D intends to cause GBH, regardless of whether he is aware of the risk of death, the D can still be guilty of murder; Vickers. This has been criticised as far back at 1981 in the case of Cunningham, in which Lord Edmond Davies expressed the need for Parliament to change the law. In my opinion… There also remains an issue in regards to euthanasia; known as a ‘mercy killing’. Under present law where a D kills a V who wants to die but cannot take their own life; they are to be found guilty of murder; carrying a minimum of 15 years imprisonment.
Despite doctors being able to withdraw treatment; Airedale NHS Trust v Bland, and the DPP setting out guidelines on sentencing; under the obligation set out in s2(1) Prosecution of Offences ACT 1985. There are still situations the guideline code does not cover; as seen in R(on the application of Purdy) v DPP. To me, the legalisation of euthanasia combined with a statutory definition, (maintaining criminal liability for killings for financial gains etc), is the most logical and just solution. This has already been proved to work effectively in the Nertherlands. Another criticism made is the lack of defence for when excessive force is used.
Where the D acts in self-defence or in the prevention of a crime, providing he uses ‘reasonable force in the circumstances’, the D is not guilty of an offence. However, where the D uses excessive force the D is guilty of murder, creating an ‘all or nothing’ effect. This has led to unjust outcomes in cases such as Clegg and Martin (Anthony).
Like many I believe where the D has an honest, but unjustified, belief as to the degree of force needed, he should not be treated as a ‘true’ murderer’; with a manslaughter conviction appearing more just; providing the judge with discretion in sentencing.
Additionally, the lack of defence of duress for murder has also been criticised. Duress is whereby D is threatened with death or serious injury so that they commit a crime. Currently this defence can be used for all offences apart from murder. Giving a mandatory life sentence to someone who does not ‘want’ to commit an offence seems unjust. For this reason I agree with the Law Commission’s proposal that a D can plead the defence of duress if they had no realistic opportunity to seek police protection and showed the courage of an ordinary person.
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Currently if a D aged 18 or over is convicted of murder, the judge must pass a mandatory sentence of life imprisonment. For offenders aged 10-17 found guilty of murder, the judge must order that they are detained at Her Majesty’s Pleasure. The fact the sentencing is mandatory and the judge has no discretion leaves a lack of ability to sentence according to blameworthiness, unlike all other offences which have discretion in sentencing; Gotts. This lack of differentiation between blameworthiness is further emphasised by the Government’s sentencing guidelines laid down in the Criminal Justice Act 2003.
Under this act in cases of murders of police officers or murders involving firearms D should receive a 30 year sentence. However, in cases like that of Martin (Anthony) such a sentence would appear unjust. With regards to the issues mentioned above the Law Commission proposed that murder should be reformed by dividing it up into two separate offences; first degree murder; and second degree murder. First degree murder would cover cases where the D intended to kill and where D intended to inflict serious harm and was aware of the risk of death.
Second degree murder would include cases where the D intended to do serious harm but was not aware there was a risk of death. This system would allow the judge to enforce a mandatory life sentence for first degree murder but provide discretion in sentencing for second degree murder. This is a system I consider to be far more effective at provide just retribution. However, in 2008 the Government issued a consultation paper that rejected the Law Commission’s proposal of a two-tier offence. In fact the only area the Government accepted the need for reform was the need for a defence when excessive force was used in self-defence.
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This reform was implemented through the Coroners and Justice Act 2009 which laid out the defence of ‘loss of control’. Despite the introduction of the defence for ‘loss of control’ by the Government, criticisms have even been made of the defence. In fact the Law Commission proposed removing the loss of control criteria completely as it allowed woman in abusive relationships to kill through ‘a combination of anger, fear and frustration. ’ Additionally, sexual infidelity is no longer allowed as a qualifying trigger for the defence. Yet the defence of provocation was largely created for just such situations.
Finally, the ‘fear of serious violence’ qualifying trigger was added largely as a result of the lack of a defence in the cases of Clegg and Martin (Anthony).
However, the requirement that D must have lost self-control may make it more difficult for such defendants to use the defence. Problems also still remain in the special defence of diminished responsibility, despite the fact the Coroners and Justice Act has resolved many of the old problems. A main point is that the burden of proof should not be placed the defendant; in most cases the D only has to raise the point and the prosecution must disprove it.
This could in fact be a breach of Art 6(2) of the European Convention on Human Rights which states that ‘everyone charged with a criminal offence shall be presumed innocent until proven guilty’. In addition, the Law Commission also recommended that developmental immaturity in those under 18 should be included within the definition of DR. The Government held that there was no need to include it on the basis that learning disabilities and autism spectrum disorders were already included in the definition.
However, as developmental immaturity is different, potentially a 10 year old suffering from developmental immaturity could be convicted of murder. In conclusion, it is apparent the current law is in need of further reform to provide greater coherence and more justice in cases across the board. Like Sir Jeremy Horder I believe the proposed reforms from the Law Commission are very sensible and could provide a greater element of justice in the legal system. However, it appears that enthusiasm towards change is minimal and any future reform will be a gradual process.
Should Law Control Morality It seems as if every complicated moral issue sooner or later becomes a legal issue, at least in the United States. Law and morality intersect in many other matters of grave public concern, such as affirmative action, the death penalty and abortion. Moreover, they are not likely to sort themselves out any more easily with respect to the fruits of the human genome ...