A2 Murder - Evaluation and Reform
- Created by: chloedillury
- Created on: 27-03-18 10:50
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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.
- Malice Aforethought
- 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
- Classes sexual killers as the same level of seriousness as those who shoot intruders in their homes.
- 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.
- This prevents judges showing any kind of leniency to offenders
- Murder has a mandatory sentence - life imprisonment
- 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.
- The judiciary have declined to create a precedent through case law to alter it.
- Law Commission in 'Murder, Manslaughter and Infanticide'
- 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)
- 'All or nothing' effect of the defence is very harsh.
- 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?
- The jury would have to find that a person of ordinary courage might have responded in the same way as the defendant did.
- However a defendant would have to prove that they were threatened with serious harm and had no realistic opportunity to seek police protection.
- The Law Commission proposed that duress should be complete defence to murder.
- 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.
- First Degree Murder
- Set out a new hierarchal structure for the offence of murder.
- 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.
- Final recommendations built off the consult paper.
- The Law Commission Consult Paper 177.
- Accessibility
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