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bits of law

CRIMINAL | Offences Against The Person


Murder:
Evaluation & Reform
Study Note | A Level
18 SEPTEMBER 2011
Introduction
Several aspects of the law regarding murder have been criticised and it is argued by some that the law is need of
updating and clarification.
The Law Commission stated in their 2006 report 'Murder, Manslaughter and Infanticide' that: '.. The law governing
homicide in England and Wales is a rickety structure set upon shaky foundations. Some of its rules have remained
unaltered since the seventeenth century, even though it has long been acknowledged that they are in dire need of
reform. Other rules are of uncertain content, often because they have been constantly changed to the point that they
can no longer be stated with any certainty or clarity... certain piecemeal reforms effected by Parliament, although
valuable at the time, are now beginning to show their age or have been overtaken by other legal changes and, yet,
have been left unreformed... This state of affairs should not continue...'.
Intention
Intention is a concept that is involved in all specific intent offences but its meaning can lack clarity.
Definition
MOLONEY [1985]
Lord Bridge: '.. When directing a jury on the mental element necessary in a crime of specific
intent, the judge should avoid any elaboration or paraphrase of what is meant by intent and
leave it to the jurys good sense to decide whether the accused acted with the necessary
intent...'.
An attempt to codify the meaning of 'intention' was made in the Criminal Justice Act 1967 (CJA 1967).
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CRIMINAL JUSTICE ACT 1967
S8:
'A court or jury, in determining whether a person has committed an offence,-
S8 (a) shall not be bound in law to infer that he intended or foresaw a result of his actions by
reason only of its being a natural and probable consequence of those actions; but.
S8 (b) shall decide whether he did intend or foresee that result by reference to all the evidence,
drawing such inferences from the evidence as appear proper in the circumstances..'.
Foresight of consequences
An explanation of the effect of foresight of consequences has been attempted in many cases but remains an area of
confusion.
MOLONEY [1985]
It was ruled foresight of consequences was not intention, it was only evidence from which a jury could
'infer' intention.
WOOLLIN (1998)
House of Lords held that a jury could 'find' intention from foresight of consequences. This decision has
created uncertainty.
MATTHEWS AND ALLEYNE (2003)
Court of Appeal said that there was very little difference between a rule of evidence and one of
substantive law.
So it is unclear whether there is a substantive rule of criminal law that foresight is intention or if there is only a rule of
evidence that intention can be found from foresight of consequences. Additionally, it remains unclear whether the
distinction is of importance.
Serious harm rule
Fairness
Debate also surrounds the fact that a person who intends to cause serious bodily harm and in fact causes the
victims death is guilty of murder. Some argue this is unfair as there is no distinction between cases where someone
intends to cause serious harm and where someone intends to kill.
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HANCOCK AND SHANKLAND (1986)
Defendants were miners on strike. In an attempt to prevent others from going to work they pushed a
concrete block from a bridge onto the road below to block an access route. The victim, a taxi driver,
was driving a worker to the mine when the block hit his vehicle.
House of Lords substituted the conviction for one of manslaughter and accepted the defendants
argument their intention was to block the road only.
Law Commission, in the 2006 report 'Murder, Manslaughter and Infanticide', stated the offence of murder is too wide.
The report highlighted that when the Homicide Act 1957 was passed it was intended that a killing would only amount
to murder if the defendant realised death was a possible consequence of his conduct.
Judicial criticism
It has been argued that the mens rea for murder should be restricted to an intention to kill.
CUNNINGHAM (1982)
Lord Edmund Davies: '.. I find it passing strange that a person can be convicted of murder if
death results from, say, his intentional breaking of anothers arm, an action which, while
undoubtedly involving the infliction of really serious harm and, as such, calling for severe
punishment, would in most cases be unlikely to kill. And yet, for the lesser offence of attempted
murder, nothing less than an intent to kill will suffice. But I recognise the force of the contrary
view that the outcome of intentionally inflicting serious harm can be so unpredictable that
anyone prepared to act so wickedly has little ground for complaint if, where death results, he is
convicted and punished as severely as one who intended to kill...'.
Despite comments such as this, the judiciary have declined to create such a precedent through case law. Many feel
it is a matter that Parliament should address and therefore it is beyond judicial powers to make such a change.
Self Defence
CRIMINAL LAW ACT 1967
S3:
'.. A person may use such force as is reasonable in the circumstances...'.
A person may use reasonable force in self defence or to prevent a crime being committed.
What is considered reasonable depends on how the defendant viewed the situation. Therefore a defendant who acts
in self defence or in order to prevent crime can have a complete defence, so is innocent of the charge of murder.
However, if the use of force is considered to be disproportionate a defendant will be found guilty of murder. The
subjective nature of this rule has lead to it being criticised.
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CLEGG (1995)
Defendant was a soldier at a checkpoint and shot at a stolen car which came towards him at speed.
Defendant killed the victim, a woman in the back seat, with his final shot. Evidence proved this shot
had been fired once the car had passed the checkpoint, so there was no argument for self defence.
Defendant was convicted of murder and this was upheld on appeal.
MARTIN [2002]
Defendant shot intruders at his home, one died and the other was seriously injured. Defendant heard
the intruders and feared they may be violent towards him.
Defendants appeal on the ground of self defence was rejected, as he was found to have used
unreasonable force. However, his conviction was reduced to manslaughter on the basis of diminished
responsibility as he was suffering from a longstanding paranoid personality disorder.
Mandatory Life Sentence
MURDER (ABOLITION OF THE DEATH PENALTY) ACT 1965
S1: . '.. a person convicted of murder shall be sentenced to imprisonment for life...'.
The rationale for mandatory life sentences is to impose the highest punishment on what is generally regarded as the
most serious crime. It has also been seen as a tariff to appease those who opposed the abolition of the death
sentence.
A judge has no discretion in sentence, for those convicted of murder who over 18 years old, he must pass a life
sentence. For offenders, 10 17 years old, the sentence has to be detained at Her Majestys pleasure, which means
indefinitely and until he is deemed safe to return to society. In each case a minimum number of years to be served
before any application for release on licence can be made
This approach does not allow the sentences to reflect the circumstances of an individual case. It has been argued
although murder is clearly a serious crime there are degrees of seriousness within killings that are not recognised in
sentences.
Proposals for Reform
Law Commission
The Law Commission has undertaken numerous investigations into this area of law and made many
recommendations on possible improvements.
Intention
In the report 'Offences Against the Person and General Principles' 1993 the Law Commission suggested a definition
for intention: '.. A person acts intentionally with respect to a result when: it is his purpose to cause it or although it is
not his purpose to cause it, he knows that it would occur in the ordinary course of events if he were to succeed in his
purpose of causing some other result...'.
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Reclassification
In the report 'Murder, Manslaughter and Infanticide' 2006 the Law Commission proposed dividing murder into two
separate offences, first degree murder and second degree murder.
First degree murder would cover cases where the defendant intended to kill. It would also cover killings where the
defendant intended to cause serious harm and realised there was a serious risk of death as a result of his conduct.
First degree murder would carry a mandatory life sentence.
Second degree murder would be applicable in cases where the defendant intended to cause serious injury but was
not aware that there was a serious risk of death. Second degree murder would carry a discretionary sentence with a
maximum of life imprisonment.
Self defence
The Law Commission have suggested that self defence could be made a partial defence, so it could result in a
conviction for manslaughter not murder. Also if mandatory life sentences for murder were to be abolished then
judges would have discretion to pass suitable sentences.
Government Response
The Government issued 'Murder, Manslaughter and Infanticide: proposals for reform of the law' (2008) consultation
paper.
Reclassification
The paper rejected the Law Commissions proposals for reforming the offence structure and making a two tier
system.
Self defence
The Government did feel there was a need for reforming the self defence law and wanted to create some protection
for those who acted in self defence but it was found had used excessive force. Therefore, created the 'loss of control'
partial defence under the Coroners and Justice Act 2009. This allows for a conviction to be reduced from murder to
manslaughter, where the defendant lost control due to a fear of violence.
This article can be found online at www.bitsoflaw.org/criminal/offences-against-the-person/study-note/a-level/murder-evaluation-reform where
links to further resources are available.
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