Evaluation of murder and manslaughter

This is a model essay on murder and the partial defence of diminished responsibility ( as amended by Coroners and Justice Act 2009) and the new defence loss of control

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Evaluation of the law on murder and voluntary manslaughter
The law on murder and its specific defences has been severely criticised. In 2006, the Law
Commission published a report, `Murder, Manslaughter and Infanticide' detailing its
weaknesses and suggested reforms.
A major weakness of the law on murder is the lack of a clear definition of death. In
Malcherek, the court held that death occurs when the brain stem dies, irrespective of
whether they were being kept alive by artificial means. However, this led to difficulty in the
case of Tony Bland, where the brain stem was still functioning, but the cortex had dissolved
to mush. Also, despite being the most serious offence murder is still a common law offence
developed through decisions in cases which has led to uncertainty and inconsistency in the
law. It doesn't seem fair that under the current law, a person who only intended GBH
without intending to kill or even foresee that death was a possible result of their act, can be
convicted of murder. However, It could be argued that this act as a deterrent, making people
take responsibility for the consequences of their actions. Criminal law does not define intent;
it only provides guidelines on how jury might infer intention. This means in cases with the
same facts, juries may come to different decisions depending on their make up. Difficulties
as also arise when finding the meaning of intention. Moloney said that foresight of
consequences was not intention, but only evidence that intention could be inferred.
However the use of the word `find' in Woollin, created uncertainty as it was unclear whether
find means foresight of consequences is intention or evidence of it. This could result in jury
finding intention depending on the circumstances of the case; if they think it demands a
conviction or not.
The mandatory life sentence for murder has also been criticise for being too rigid as it does
not give judge flexibility to impose sentences appropriate to the circumstances of the case
and the defendants blame worthiness. This means, mercy killers or Ds like Clegg, who use
excessive force in self-defence, are given the same mandatory life sentence as serial killers
like Sutcliffe. Plus inappropriate verdict of manslaughter might be returned in order to avoid
it. However, judges can distinguish between D by the tariff they impose.
The partial defences of murder, which reduce Ds liability to voluntary manslaughter has also
been criticised and was amended by the Coroners and Justice Act 2009. Diminished
responsibility under the Homicide Act 1957 was criticised for lack of guidance as to what
constitutes an abnormality of mind. The new law replaced this with a more specific
requirement of abnormality of mental functioning, giving the defence a clearer medical
definition. `Substantial impairment of mental responsibility' was often criticised for its
vagueness, but the new law amended this by specifically stating that the D's ability to
understand the nature of his act, form rational judgement or exercise self-control, must be
substantially impaired. Despite the amendments there are still some problems with the
defence; for instance, the burden of proof is still on the defendant and in breach of Article 6
of the European Convention on Human Rights, which states that a person is innocent until

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Also, there are still confusions as to what `substantial' means. In Lloyd, the
court said it does not mean `total' nor does it mean `minimum' but how do a jury decide
The new law abolished provocation and replaced it with loss of control.…read more


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