Murder and Voluntary Manslaughter Essay

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Murder and Voluntary Manslaughter Essay
Murder has developed piecemeal through individual cases it does not work coherently with
manslaughter or as an offence. The term malice aforethought is archaic and creates a complex
web of definitions through cases. R v Vickers was criticised in the case of Hyam - The HOL rejected
this and in Cunningham (1981) felt that even though this was a problem, implied malice acts as a
deterrent to those committing serious violence in society. A law reform proposal is seen in the LC's
draft Criminal Code abolishes implied intention as the D can only have Malice aforethought if they
intend to kill or are aware that the serious harm they have caused may also cause death. With the
LC's 2006 reforms of murder proposing 1st , 2nd degree murder and manslaughter this would
clearly create a much more coherent structure of offences more fairly linked to D's mental state
and conduct.
The mens rea of murder is unclear as to what should be foreseen by the D. The HOL decision in
Woollin adopted Prof Glanville Williams view that the jury should look objectively at whether
death was a virtual certainty of the D's actions and if so then look subjectively at whether or not
the D appreciated the consequence would happen as a VC. Not clear whether the Woollin test is a
substantive rule of law or, as suggested by the CoA in Matthews & Alleyne, a rule of evidence. The
LC proposed reform of the word `intentionally' (Offences Against the Person and General
Principles (1993) as it would only allow MR for murder where it is clear from the evidence D
intended to kill or that this would be the result in the ordinary course of the events started by the
D. The LC (2006) has suggested indirect intention would be more fairly dealt with as 2nd degree
murder unless evidence shows D was aware of significant risk of death.
The Criminal Law Act 1967, s3 states that a person may use `such force as is reasonable in the
circumstances' in self-defence or to prevent a crime being committed. What is reasonable
depends on what the defendant honestly and instinctively thought the needs of the moment to
be. This leads to an `all or nothing' situation where there is either a complete defence or it is
considered disproportionate and is found guilty of murder. ­ Clegg, Martin In February 2005, the
CPS and Association of Chief Police Officers jointly issued a leaflet containing new guidelines. If
householders use what they believe was `necessary in the heat of the moment', they are unlikely
to end up in court. This is the case even if a weapon is used and an intruder dies. Cannot use force
maliciously but the more extreme the circumstances, the more force you can use in self-defence.
Law Commission suggested self-defence might be made a partial defence, or that mandatory
life-sentence be abolished
The mandatory life sentence doesn't allow judges any discretion to reflect the extreme of
culpability of D's who commit the offence. Murder can range Sutcliffe, to those who kill from
motives of compassion, (`mercy killers') such as the Pretty case, or those like Martin who overstep
the limits of reasonable force in self-defence. Juries compound this problem either by issuing a
complete acquittal, say in cases of assisted suicide or to allow defences such as diminished
responsibility on the flimsiest of evidence. The LC proposals for a 2 tier murder structure
recommended that a mandatory sentence should only apply to first degree murder.
Murder is criticised for ineffectively managing the different types of killing that it currently covers.
For example in self defence cases like Martin or Clegg where the D fails to show they used
reasonable force the D is treated as a murderer in the same way as Rosemary West, and in
Battered wives killings such as Ahluwalia who kill not for revenge but to escape years of torture
and violent treatment. The LC recommended what now is the new defence of Loss of control (LOC)

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Murder and Voluntary Manslaughter Essay
in the Coroner and Justice Act. LOC narrows the use of this partial defence so that the judge has
more control over when it can be used, such as where the D incited the provocation in Smith:
The new fear trigger has been made complex by the government's insistence on including the LOC
aspect of the defence.…read more


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