Criticisms of Manslaughter Essay

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Despite some recent reforms, there are still criticisms to be made of the current law on murder.
Consider relevant criticisms of the law, and suggest any reforms that may be appropriate.
Criticisms on the law on murder were identified in the Law Commission report `Murder,
Manslaughter and Infanticide' (2006); including its lack of cohesion, problems with the definition of
intent, the serious harm rule, the lack of defence of duress or where excessive force was used, and
the sentencing of mercy killings. Proposed reforms have been suggested by the Law Commission
many times to improve such issues with the law, however, there has rarely been a positive
government response towards them.
Lack of cohesion was identified as an issue because the law on murder has been developed through
individual cases, bit by bit; this has made it incoherent as a whole. It is also unknown in oblique intent
whether there is a substantive rule that the foresight of consequences is intention, or if it is only a
rule of evidence that intention can be found from the foresight of consequences. This is due to the
contradictory cases from which oblique intent has been built and it was still ambiguous as to which
rule applies to it in the case of Matthews and Alleyne in 2003.
There are also problems with intention; in particular, oblique intent. Glanville Williams noted that
Judges appear to change the definition of it from case to case. This is shown in the considerable
changes made to the definition of intention since DPP v Smith in terms of probability and
foreseeability, as its definition has always been case-led, leading it to be open for this definition to
be varied by the House of Lords. Currently, foreseeability is used, however this could change at any
time. The present definition has resulted in it becoming difficult for the prosecution to obtain a
murder conviction as even if the jury see it as a virtual certainty that death or serious harm would
have occurred, if they fail to subjectively find that the defendant (D) realised this, the D can be found
not guilty.
The serious harm rule is where the mens rea for murder includes intention to cause grievous bodily
harm. This leads to D's being `classified as murderers who aren't in truth murderers' as suggested by
Lord Steyn in Powell. Murder should not be construed as a crime of constructive intent where a D may
be convicted with a lower mens rea (M/R) than that of intent to kill due to the mandatory life
sentence and stigma it comes with. The Law Commission report in 2006 said that in their view, the
present offence of murder is too wide.' Lord Edmund Davies said that the M/R for murder should be
limited to intention to kill. However, if it were not for the mandatory life sentence, this criticism could
be reviewed as it would not seem as extreme, but still harsh, as to give a D a conviction for murder
when he only intended to cause GBH as a discretionary sentence would be used instead, in order to
fit the proportion of the crime.
The punishment for murder is a mandatory life sentence; the life sentence is fixed by law in the
Criminal Justice Act 2003; this is considered one of the most important criticisms of the law on murder
as the trial judge is unable to distinguish between different kinds of murder when imposing a
sentence e.g. a mass murderer and a mercy killer. Professors Smith and Hogan highlight the particular
issue through commenting that `the sentence must be proportional to the offence. As long as the
only sentence for murder is life imprisonment, judges cannot do this'. It is not only seen as a problem
by the public but also by members of the legal profession; the Lord Chief Justice and 12/19 judge of
the High Court and Court of Appeal were in favour of replacing the mandatory sentence with a
discretionary sentence. R v Lichniak in 2002, found that the life sentence is disproportionate to the
offence and in breach of Art. 3 & 5 of the European Convention of Human Rights; however the House
of Lords rejected this.

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A mercy killing is not considered by the majority of the public as murder as it is the killing of a patient
suffering from an incurable or painful disease. The D however, will still be convicted of murder and be
given a life sentence which is perceived as unfair and very extreme in the circumstances.…read more

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This recommendation
has been repeatedly made since at least 1978 by the Law Commission. It was not enforced as the
Chairman of the Criminal Law Revision Committee believed that the public may not be ready accept
such a change, although there is a growing public opinion in this matter now and there is increasing
government sympathy with the idea of change on the mandatory life sentence as shown in The
Times- 24/6/2005.…read more

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However where this would have helped cases such as Clegg, the D would not only have to prove loss
of control but also the fear of serious violence.…read more


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