A2 Murder - Evaluation and Reform

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  • Murder
    • Accessibility
      • Malice Aforethought
        • Lord Bridges: 'an anachronistic and now wholly inappropriate phrase'.
        • Today 'malice' implies a desire to see others suffer ill will.
          • This isn't required to be guilty of murder e.g. mercy killings.
        • 'Aforethought' implies premeditation which isn't required for murder either.
        • Murder is one of the most serious offences and has the largest impact on lives.
          • The language of the offence should be understood by ordinary people.
      • Oblique Intention
        • The law has been uncertain for many years and has been developed slowly by common law.
        • The case of R v Woollin (1998) aimed to clear up the law for good.
          • Caused further uncertainty by changing 'infer' to 'find'
          • It was no longer clear whether there was a:
            • A substantive rule in law that foresight = intention.
            • A rule of evidence that intention can be found from foresight.
            • Caused further uncertainty by changing 'infer' to 'find'
        • Increase the opportunity for inconsistent application and generates uncertainty.
    • Mandatory Sentences
      • Murder has a mandatory sentence - life imprisonment
        • This prevents judges showing any kind of  leniency to offenders
          • Does someone who killed out of mercy deserve the same punishment as someone that killed for sexual gratification?
          • Aggravated by imposition of minimum sentences in the Criminal Justice Act 2003.
            • Classes sexual killers as the same level of seriousness as those who shoot intruders in their homes.
              • Martin (Anthony) (2002) - Shot a home intruder
          • Doesn't allow the punishment to reflect level of fault or individual circumstance
        • S.1 of Murder (Abolition of Death Penalty) Act 1955 set out mandatory life sentences
          • Imposing the highest punishment to appease those who apposed the abolition.
    • Serious Harm Rule
      • Law Commission in 'Murder, Manslaughter and Infanticide'
        • Parliament in the Homicide Act 1957 never intended a killing to amount to murder unless D realised their conduct might cause death.
        • Believe that the present offence of murder is to wide.
      • Lord Edmund-Davis in Cunningham (1981)
        • 'I find it passing strange that a situation where serious injury which results in death could result in severe punishment for murder where in most cases the action would be unlikely to kill'.
      • Should a person who intends serious harm but causes death be held to the same level of blameworthiness as a person who intends to kill?
        • The judiciary have declined to create a precedent through case law to alter it.
          • They Believe Parliament should address it as it is beyond the powers of the courts.
    • Self Defence
      • 'All or nothing' effect of the defence is very harsh.
        • The defendant is either acquitted or given a life sentence.
      • Many people believe that a person who kills where he has an honest, but unreasonable belief as to the degree of force needed is not as blameworthy as a 'true' murderer.
        • Highlighted by Clegg (1995)
        • Highlighted . by Martin (Anthony)(2002)
    • No Defence of Duress
      • The Law Commission proposed that duress should be complete defence to murder.
        • However a defendant would have to prove that they were threatened with serious harm and had no realistic opportunity to seek police protection.
          • The jury would have to find that a person of ordinary courage might have responded in the same way as the defendant did.
            • But what is ordinary courage?
    • Reforms
      • The Law Commission Consult Paper 177.
        • Set out a new hierarchal structure for the offence of murder.
          • First Degree Murder
            • Carry  the mandatory life penalty.
            • Restricted  to intentional killings.
          • Second Degree Murder
            • Much broader with a discretionary life maximum penalty.
            • Killings where D did not intend to kill only cause GBH
            • Recklessly indifferent killings.
            • And where 1st degree murder is reduced by a special and partial defence.
      • Law Commission Report 304.
        • Final recommendations built off the consult paper.
          • 1st Degree to include where D intended GBH but was aware there was a serious risk of death
          • 2nd Degree to include where D intended some injury or fear of injury and was aware that there was serious risk of death.

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