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Law 03- Problems and Reforms…read more

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Murder Problems
Problem Explanation
Common Law Offence Murder is a common law offence = developed by judges over time-
leads to uncertainty and ambiguous decisions which require more
cases to settle.
MR issues- intention Maloney, Nedrick and Woolin highlight difficulties faced by courts in
establishing the meaning of intention and even today there isn't a
clear definition = uncertainty in the law and different applications of
the meaning in each case = unfair.
The MR for Murder is satisfied if D intends only to cause GBH =
convicted of murder even if they had no intention to cause death or
hadn't realised this may occur.
Mandatory Life It doesn't allow judges to be flexible on what sentence they give =
what is given may not be appropriate in that case.
Duress isn't a defence to murder If you kill under duress you will be seen as an accomplice and will be
given the same sentence as the person holding you under duress
which is unfair.
No defence for excessive force If you use reasonable force you are acquitted but if you use excessive
fore you will be given mandatory life which is very harsh and unfair.
Martin (Anthony)…read more

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Voluntary Manslaughter (Murder
Defences) Problems
Problem Explanation
Provocation Common law creation- no definition and past cases were relied on.
Reasonable man- initially mean reasonable adult.
Other characteristics couldn't be considered- changed to
circumstances in Loss of control.
Loss of control Fear of serious harm- extends fear trigger from intended V's
(battered wives) to all those who respond to fear of violence.
Extremely grave character and sense of being wronged are
objective so judge has power over allowing the defence.
Not allowed sexual infidelity for a trigger (Clinton- can be taken into
Diminished Responsibility Recognised medical conditions = short.
Burden still on D = against Human rights.
Developmental immaturity (frontal lobes of 10 year olds) not taken
recognised as medical condition.…read more

Slide 4

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Murder and Voluntary Manslaughter
Reform Explanation
New Homicide Act An Act that would include all elements of homicide (murder
and manslaughter)
Law commission- suggest the `ladder principle' like the USA- 1st
degree murder (intention + mandatory life) 2nd degree
(discretionary life sentence)
Intention Have a clear definition of the requirement of the MR especially
Sentencing Mandatory- max sentence remains but allow judges to give
sentences depending on the circumstances at each case and
not be restricted by a mandatory life.
Diminished Responsibility A modernised DR definition taking into account the changing
medical knowledge, put the burden on the Prosecution not
Defence and include developmental immaturity.
Loss of Control- Coroners and Justice Act 2009- replaced the law of provocation
with loss of control. But there are still problems with loss of
control.…read more

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Non- Fatal Offences Problems
Problem Explanation
Out of date and The 1861 Act uses bodily harm but they had limited medical knowledge
misunderstood language. and psychological illness were misunderstood- Byrne. It doesn't include
the transmission of diseases- Dica
Malicious and grievous = confusion in defining them- R v Smith- grievous-
really serious harm.
Misuse of Assault to include assault and battery = confusion for D and V.
Use of a old cases that aren't relevant. Tuberville (300 years old)
Wound- no definition- there are different levels so unfair that a pin prick
Sentencing S47 and S39 have same MR but there is a difference in sentences of 4.5
S47 and S20 have same max sentence but S20 is more serious = injustice.
Inconsistencies Someone who foresees the risk of minor injury can be charged with S18 if
he resists arrest.
The number structure of the offences is illogical as S18 is the most
serious has the lowest section number.…read more

Slide 6

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Non-Fatal Offences Reforms
Problem Reform
Language Law Commission's draft bill set out the main 4 offences which
would replace S18,20 and 47, with clear MR for each
Law commission = alter the language to suit modern society.
They defined injury to include physical and mental injury and
define physical and mental, Wounding wasn't used = serious cut
= serious injury and a minor cut = mere injury = less confusion
and injustice.
Law Commission- combine the NFOs, use of battery and general
use of common assault abolished = not misleading.
Hierarchy Law commission encompass all NFOs and have logical sentencing
based on seriousness. S20 will need intention/recklessness of
serious harm not some harm.
Sentencing Draft Bill- a new framework that matched the blameworthiness
of the offence to the max sentence in a more structured and
sensible way.…read more

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