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The L on M and its specific defences has been severely criticised. The LC says its weaknesses and
suggested reforms. It pointed out that the main problems with M are its language, definition and
One of the main areas where the bit-by-bit development by the courts has caused problems is the
meaning of intention. It has a confusing structure and is at times confusing. A problem is also how to
explain the foresight of consequences. In Moloney (1985) 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 (1998), 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. In Matthews and Alleyne
(2003) the courts said that there was little to choose between a rule of evidence and one of
substantive law, leaving it even more unclear.
The MR of M is intention to kill or cause serious harm (Saunders). It doesn't distinguish between a
mercy killer (Wragg, Clegg) and serial killers (Sutcliffe). Also, the MR of M is the same as a lesser
crime, such as GBH and ABH. The current L also comes from the 16th century and so fails to reflect a
21st century society; much of the language is outdated so the ordinary person would assume that
'malice aforethought' requires a pre-meditated killing when it does not so can lead to
misunderstanding of the L.
Many argue that the mandatory life sentence is unfair as it does not allow for judicial discretion to
reflect the individual case, as the current position allows the L to stigmatise the worst killers as
murderers as the guidelines do not allow sufficient differentiation between levels of
blameworthiness (Martin 2002). The sentencing problems have been aggravated by the G's
guidelines on minimum sentences as laid down in the CJA 2003.
In Clegg (1995) and Martin (2002) shows that the `all of nothing' effect of the defence of
self-defence is very harsh in M cases where there is excessive force as the D is either acquitted or
given a life sentence. Duress is allowed as a defence to almost all offences, but it not allowed as a
defence to M. But the LC propose that duress should be a complete defence of M. there is also a
problem with euthanasia. Under the present law if D kills V because they can no longer bear to see
the V in such pain the D is guilty of M and can be sentenced for up to 15 years.
The partial defences of DR and LOC have recently been changed in the C and J A 2009 but still is
DR introduced that the D must have medical definition to have the partial defence of DR.
`Substantial impairment of mental responsibility' was often criticised for its vagueness, but the new L
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 D and in breach of A6 of the ECHR, which states that a person is innocent until proven G. Also,
there are still confusions as to what `substantial' means, as in Lloyd, it said it does not mean `total'
nor does it mean `minimum'.
The new L abolished provocation and replaced it with LOC as it was often criticised because it was
thought that the law was "created by men, for men," because of the addition of the words "sudden
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Duffy, so was considered discriminating against women as it suited to
men's psyche and meant women like Ahluwalia were forced to rely on DR as they were prone to
slow burn effect. The new L, however, removed this requirement, but has the criticism of timing as
when the time lapse is too long. They have also introduced qualifying triggers including "grave
character" which is beneficial to the law.…read more
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DR and provocation have also been found to be less satisfactory for our modern
In conclusion ...…read more