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In order to consider the problems with Homicide law it is first necessary to give consideration
to the law in this regard. The Law Commission Paper 117; A New Homicide Act for England and Wales
identifies the major defects of the current law, highlighting the `haphazard development' and
implying the present law is a `product of judge made law supplemented by Parliament's sporadic
intervention. The outcome is a body of law characterised by a lack of clarity and coherence'.
Murder, the most serious criminal offence, is not laid down in statute but exists as common
law. The homicide offences exist in a blunt rudimentary fashion. There exists a division between
murder and manslaughter and offences are pigeonholed into one or the other offence. Each offence,
therefore, accommodates a wide range of behaviours and criminality, this distinction is
The Sentencing Guidelines Council and the then Lord Chief Justice, Lord Woolf, have called for
the abolition of the mandatory life sentence for murder, obviating the need for partial defences and
lawyers manipulation of the law of provocation and diminished responsibility which reduce murder to
manslaughter giving the court discretion in sentencing.
The House of Lords Select Committee on Murder and Imprisonment in 1988-89 reported
that the Lord Chief and 12 out of 19 judges in the High Court and the Court of Appeal were in favour
of a discretionary sentence for murder.
The partial defences of provocation and diminished responsibility have given rise to many
difficulties. Provocation is biased against women as the requirement of sudden, temporary loss of
self control favours testosterone fuelled rages and not the slow-burn response of women. The
acknowledgement of `cumulative provocation' in `battered woman syndrome' has made the concept
There exists an uncertainty as to the scope of characteristics which may be taken into account
by the jury. This confusion was exacerbated in Holley where precedent of Smith Morgan was
ignored, this was followed in RvJames and RvKarimi. The proposal for a new law of self preservation
would cause further complexity and add subjective elements to the defence.
Diminished responsibility brings to light concerns as to the definition and recent medical
advances have increased problems. The issues arise from the defendant's `abnormality of mind'
having to be attributable to a specified cause. It may result that the defendant cannot use the
defence as they have the `wrong' mental disorder. Whilst many view partial defences should be
abolished, the new proposal `abnormality of mental functioning' does appear an improvement.
D.A Thomas avers in Reshaping the Criminal Law, `the existence of special defences
undermines the logic of the sentence by excepting from its scope those offenders that are most
likely to prove dangerous in the future'.
Difficulties are raised with `malice aforethought', with unclear terminology. For the
defendant to be convicted `malice aforethought' must be present. However, the defendant could be
guilty where the death results from an act intended to cause `serious harm' even where there was no
intention to kill. Lord Goff in the Mental Element in the Crime of Murder suggests the term is
`thoroughly misleading, since neither premeditation nor malice towards the victim were necessary'.
The requirement to intend to cause GBH may cause injustice. Lord Goddard in RvVickers
(1957) stated `where a defendant only intends GBH but causes death they must take the
consequences'. A dissenting judgement in RvCunningham (1981) Lord Edmund Davies held `the view
there should be no conviction for murder unless intent to kill is established and a wider scope for
manslaughter to adequately deal with less heinous forms of homicide.'
However, Andrew Ashworth states `there is no significant moral difference between
someone who chooses to cause really serious injury and one who sets out to kill'. The term has one
meaning in murder, another in Offences Against the person and a third in libel. Some clarity is
provided by the House of Lords in RvG and Another (2002) that mens rea should always be
subjective, although this sits uncomfortably with the objective test in gross negligence manslaughter.
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Alan Norris in `After Woolin' tells that `trying to separate mens rea from the broader issues
of motive and morality is artificial and not possible in practice'. The language is partial and unfair to
many, ignoring the substantive moral differences which exist in individuals in different social classes,
cultures and gender. Smith and Hogan suggest that `there is an inconsistent application of the law on
mens rea'.…read more