Law: Murder Criticisms

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  • Criticising Murder
    • No defence to duress
      • When D committed crime because he's been threatened.
      • Law Commision criticise. Makes those guilty of a crime like those wh forced them.
        • Currently the fact that the D only intended really serious harm stands as a mitigating factor (1.20 SHR)
          • Has been recommended in the Criminal Justice Act 2003 that it should be split into those who intended death, and those who only intended serious harm (1.23 SHR)
      • Law Commission on Murder, Manslaughter and Infanticide explains duress further.
        • Depending on the circumstances, e.g. mum knows her children are being held hostage and they have guns.
        • Proposed murder should be reduced from 1st degree to 2nd degree
        • Now believe that if the D can show he was threatened with serious harm, had no option to get help and had not already justifiably exposed himself to risk then it should be made a complete defence.
    • The serious harm rule
      • The Law Commission never intended for someone to be convicted if they had the lesser intention of serious harm
        • The is because there's no clear distinction between those who kill in cold blood and those who intended harm but would never intended death
        • In Cunningham, the House of Lords also criticised this rule. They said that it's strange that if murder results from the intentional breaking of another's nose they will be convicted because, while undoubtedly involving really serious harm it is not one that would usual result in death.
      • People who do not mean for their actions to be serious can find themselves in the same category as a serial killer (1.17 SHR)
        • The jury decided if the D intended really serious harm. So if the D intentional punches some, which leads to a fatal brain haemorrhage it would be for the jury to decide if the punish was serious or not
    • No defence when excessive force is used.
      • If D can show he used reasonable force in self defence he is not guilty. If he used excessive force he is guilty.
        • This is unfair in cases where excessive force is used because the D is either acquitted or given a life sentence
        • In Martin (2002) he was found guilty of excessive force
        • The Law commission said it should be made into a partial  defence, but the new defence of Loss of Control was made to try and solve the problem.
          • This applies when the D is no longer ''master of his own mind'' (Duffy) that is, acting in a way unusual of them
      • The Legal Aid, Sentencing and Punishment of Offenders Act 2012 s.5A states that disproportionate force can be used when a householder is protecting themselves against crime
        • This reflects the public opinion that it's unfair to punish people if they are being burgled.
    • Introduction
      • Law commission report on Manslaughter, murder and Infanticide 2006
      • Law governing homicide ''Rickety structure.  The need for change.
      • Rules constantly changed. No longer have certainty or clarity
  • Reforms
    • Three tiered system for murder
    • Mandatory life sentences would only apply to 1st degree murder (intention to kill)
    • Duress should be made available to murder
    • Provocation should be extended to include where someone reacts to the threat of serious harm
    • Diminished Responsibility reduced to only include ''medically recognised conditions'
  • Conclusion
    • The law covering homicide needs improvement to lead to more solid convictions
    • It's unfair that people who aren't malicious in there act should be put in the same category as a serial killer
    • The law should be changed to reflect the circumstances and intentions of the D
      • This will lead to a greater separation from the truly dangerous people


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