Reform of Murder - example essay

In 2006 the Law Commission published a report: Murder, Manslaughter and Infanticide, which pointed out that there were many problems with the law on murder.

One problem was that the law was developed bit by bit and defined by numerous cases instead of being a coherent whole Act. One of the main areas that caused problems is the meaning of ‘intention’, which is a concept affecting all specific intent offences but most of the cases which the House of Lords have heard involved murder. S8 of the Criminal Justice Act 1967 tried to make the law clear on this point by saying that (a) the jury is not bound to infer intention from the fact that the result of D’s actions was natural and probable, and (b) shall decide whether D did intend or foresee it based on the evidence. Moloney (1985) ruled that foresight of consequences was not intention, but only evidence from which intention could be inferred in accordance to s8(b). The intention test in Moloney was that (a) was death or really serious injury a natural consequence of D’s act and (b) did D foresee that it was.

However, in Hancock and Shankland (1986) the test was overruled because the House of Lords stated that it was unsafe and misleading since it missed out the word ‘probable’. The new explanation was that ‘the greater the probability of a consequence the more likely it is that the consequence was foreseen and if that consequence was foreseen the greater the probability is that that consequence was also intended’. This complicated matters as there is no clear guideline for the jury to find intention. In Nedrick (1986) the CA tried to make the judgement of the previous cases clearer as they were too complicated to apply. The CA introduced another test for intention, which was (a) how probable was the consequence and (b) did D foresee that consequence. In Woolin (1998) this test was disapproved and it was ruled that intention is found (instead of inferred) from foresight of consequences. This made the law uncertain as it is not clear whether there is a substantive rule of criminal law that foresight of consequences is intention or it is only a rule of evidence. In Matthews and Alleyne, it was ruled that foresight is only evidence of intention and it was not imperative that the jury must find it. The CA even said that there was little to choose between a rule of evidence and one of substantive law, making the law on murder even more unclear.

Another problem is the serious harm rule. The Law Commission’s 2006 report pointed out that Parliament, when it passed the Homicide Act 1957, never intended a killing to amount to murder unless the defendant realized that his or her conduct might cause death. They stated that in their view the present offence of murder is too wide. Under the present law on murder, D is guilty of murder if he had the intention to cause GBH and actually causes V’s death. In some of these cases D may not even realize that death could occur. Yet he is guilty of murder. Not only is the Law Commission very critical of this rule, but the problem had already been pointed out by judges far back in 1981 in the case of Cunningham. Lord Edmund Davies said that it was strange that a person can be convicted of murder if death results from his intention of trying to break another’s arm , i.e. serious harm that in most cases would be unlikely to kill, and take the same severe punishment for a murderer.

There is also no defence where excessive force is used: If D can show that he used reasonable force in self-defence or prevention of crime in doing the killing, he is not guilty of murder. However, where force is necessary in self-defence or prevention of crime but D uses excessive force in the circumstances, he is guilty of murder. This surely does not justify a life sentence. Two cases highlighted this problem are Clegg and Martin (Anthony). The degree of force used in self defence was written later in s76 of the Criminal Justice and Immigration Act 2008 but this did not change anything.

There is no defence of duress: Duress is allowed as a defence to almost all offences, but it is not allowed as a defence to murder (or attempted murder). Therefore someone under duress who involuntarily assisted the murderer gets the same sentence because he is considered an accomplice in crime. This is simply unfair. The Law Commission proposed that duress should be a complete defence to murder.

The mandatory life sentence is also a problem: The judge cannot give a different sentence even if he feels that D is not as blameworthy as a deliberate killer. For other offences, the judge can decide what the most appropriate sentence is for the offence and the offender (Gotts). It is because of the mandatory life sentence for murder that the 1957 Homicide Act sets out special defences: of diminished responsibility and provocation, which reduce the charge to manslaughter.

The Law Commission proposed that murder should be reformed by dividing it into two separate offences: first degree and second degree murder. First degree murder would cover cases in which the defendant intended to kill. Cases in which the defendant intended to do serious injury but not aware that there was a serious risk of death would be second degree murder. There is also the problem of euthanasia. In the UK although euthanasia is not allowed, doctors can withdraw treatment from patients in certain circumstances under the decision in Airedale NHS Trust v Bland. There is also a law against helping someone to commit suicide. However, this did not cover all situations (R (on the application of Purdy) v DPP).