Evaluation of Murder, DR and Prov

murder, DR, Prov evaluation 

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  • Created on: 05-01-11 16:37
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The offence of murder can be reduced to court to a charge of voluntary manslaughter. This is
because it is possible for D to plead the partial defences of provocation and/or diminished
responsibility. Therefore, it is necessary to consider the offence of murder, not simply in isolation,
but in conjunction with these partial defences.
According to the Law Commission Report published in 2005, entitled "A new Homicide Act for
England and Wales?" there are three main criticisms of the current law. Firstly, the law of murder
lacks cohesion. This is because it is a common law offence that has been subject to many changes
through case law. This means the current law is a mix of "old and new" law, lead to uncertainty and
ambiguity when used by judges. Secondly, there is also some uncertainty caused by the current
definition of the mens rea of murder. This is shown through the succession of cases that have been
used to establish intention ­ Hyam, Moloney, Nedrick and Woolin. This means there is still no clear
definition of murder. This could lead to juries making different decisions on cases with similar facts.
This would result in inconsistent decisions from jury to jury. Equally problematic is the fact that the
Mens rea for murder is satisfied simply through D having intention to cause GBH. This means it is
possible for someone to be convicted of murder, even if D had not intended death or even seen that
there was a possibility it might occur. Thirdly, the fact that the judge has no discretion in what
sentence he passes means all "murderers" are treated the same, irrespective of the circumstances in
which they kill. For example, the compassionate killing in Cocker was treated as if it had been done in
cold blood. It may be more appropriate, therefore, to allow judges to consider the individual
circumstances in which D kills, to then deliver a more just sentence.
The Law Commission have also considered the problems with the current law on the partial defences
of provocation and diminished responsibility, in a paper entitled " Partial defences to murder". In
terms of provocation, the definition of what is provocative conduct is too wide. "Things done, said or
both together" allows too many acts to satisfy the requirements. This is shown in Doughty where an
everyday event, such as a baby crying was accepted as provocative conduct. The conduct of the
victim is also placed on trial. This is unfair as the victim will not be able to defend themselves. The
morality of the law is also undermined. This is illustrated in a quote from the Law Commission, "The
idea that a reasonable person could kill when seeing "red" is one that "jars". Even as a partial
defence it shows a degree of acceptance of killing... this is no longer acceptable behaviour in the 21st
The issue of a "loss of self control" in the defence of provocation is also problematic. In Cocker it was
decided that a loss of control can only come about through a loss of temper. This means other
emotions such as compassion, are not covered by this defence. It could be argued that the law givers
preferential treatment to those who cannot control their temper, over those who can. The addition
of the words "sudden and temporary" as a result of Duffy, means the law has been criticised further
for being "created by men, for men," therefore discriminatory against women. This is based on the
idea that women do not tend to react immediately. And therefore create a "cooling off period",
preventing this defence from being used, like in Ibrams. Lord Gifford describes this as "... the slow
burning of emotion of a woman at the end of her tether... may be a loss of control just in the same
way as a sudden rage."
The question whether or not a reasonable person would have responded in the same way, has its
own problems. Firstly the jury has the burden of deciding which characteristics should be considered,
as a result of Holley and the list of possible relevant characteristics in Camplin. This can lead to

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Equally, the D
who pleads provocation can never really claim to be acting reasonably, under such provocation,
reasonable behaviour is unlikely. This question also puts juries in a position in which they may have no
experience. For example, it is possible that an all male jury might be asked to consider a case
involving a battered woman.…read more

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The definitions used in Diminished responsibility and provocation have also
been found to be less satisfactory for our modern day society.…read more


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