The third and sixth question on the paper is an evaluation question. The same question will be set for the two criminal law scenarios, so we have no choice of question. For this question there is only three possible questions that can be asked, these are:
- Despite some recent reforms, there are still criticisms to be made of the current law on murder and voluntary manslaughter. Consider relevant criticisms of that law, and suggest any reforms that may be appropriate. (25 marks)
Critically evaluate the current law on non-fatal offences, and suggest any reforms that you consider might improve the law. (25 marks)
Critically evaluate any two general defences (insanity, automatism, intoxication, consent, self-defence/prevention of crime). Suggest what reforms may be desirable to one of the defences that you have evaluated. (25 marks)
How to Approach the Question:
(a) briefly outline relevant current law (b) discuss strengths and weaknesses in this law (c) identify any proposals for reform (d) discuss how these proposals would in practice improve the law.
Murder Problems: Bit by Bit Development
- The law on murder is developed bit-by-bit and this causes problems.
- Caused problems with the meaning of intention for example.
- Murder is a specific intent offence and so there must be a 'foresight of consequence'.
- 'Foresight of consequece' has been given 3 different meanings by HofL in 3 cases.
- Moloney - only evidence of intention.
- Woollin - intention can be found from foresight of consequence.
- Matthews and Alleyne - Court of Appeal said they were undecided.
- Woolling is the deciding case in current law
Murder Problems: Serious Harm Rule
- Defendant found guilty of murder if they intended serious harm which led to death.
- Defendant may not even realise death could occur.
- Murder holds a mandatory life sentence - no judge discretion.
- Sentencing guidelines from the 2003 Criminal Justice Act do not allow sufficient differentiation between levels of blameworthiness.
- For example a person who is killling another to put them out of missary from illness is given the same mandatiory life sentence as an intentional killer.
Murder Problems: Defences Available
- Duress is not available for murder or attempted murder.
- Gotts - 16yr old boy threated by his father to stab his mum. He did and he caused her serious injuries and was convicted of attempted murder. Due to the mandatory life sentence he would have been given life if he had actually killed her - unjust.
- No defence of self defence if excessive force is used.
- All or nothing either the defendant can argue their use of force was reasonable in the circumstances and get a complete acquittal or they fail and get a mandatory life sentence.
Murder Reforms: Law Commissions Tier Structure
- Law Commission recommended a three tier structure for homicide to address problems:
- First Degree Murder - Killing with intent to kill or with intent to cause serious harm knowing that the conduct carried a risk of death.
- Second Degree Murder - Killing with intent to cause serious harm.
- Manslaughter - Killing without intent, mens rea for some kind of harm.
- Only First Degree Murder would have a mandatory life sentence.
- Government rejected the Law Commission's proposals to reform murder this way.
- Government did accept that refrom was needed for the lack of a defence for those who used excessive force.
- Coroners and Justice Act 2009 - defence for Loss of Control.
Voluntary Manslaughter Overview
Loss of Control and Diminished Responsibility reformed by the Coroners and Justice Act 2009.
Diminished Responsibility - definition modernised to take into account changing medical knowledge.
Loss of Control - abolished provocation and replaced it with loss of control.
BOTH DIMINISHED RESPONSIBILITY AND LOSS OF CONTROL STILL HAVE PROBLEMS.
Diminished Responsibility Problems
1. The burden of proof is on the defence. Breached the European Convention on Human RIghts - innocent until proven guilty.
2. Developmental Immaturity in those under 18 should be within the definition of diminished responsibility. Self control and impulsive behaviour do not mature until the age of 14. 10 year olds can be convicted of murder and cannot use the defence as they are not suffering from an 'abnormality of the mind'.
Loss of Control Problems
1. Loss of self-control must be proven. Law Commission recognised that people may kill for a combination of anger, fear, frustration and a sence of depression (i.e beaten wives) and so cannot show loss of control and cannot use the defence.
2. Sexual infidelity is not a qualifying trigger. If someone finds their partner sleeping with somebody else they are very likely to lose their self-control. If they kill, they will no longer have a partial defence to a murder charge.
Non-Fatal Offences Problems
The Law Comission pointed out three main problems:
- Use of complicated language - old fashioned.
- The structure of the Act is very complicated and inconsistent.
- Non-lawyers find the Act completely unintelligible.
1. Inconsistencies - Inconsistencies regarding the mens rea. s47 and Common Assault have the same mens rea. A small cut can be charged with a s20 instead of a s47 as would is only in s20 and s18.
2. Sentencing - The mens rea for common assalt and a s47 are the same but the max for CA is 6 months and the max for s47 is 5 years. The max for s20 is also 5 years despite it beeing much more serious than a s47. The level of injury as well as the mens rea are much higher for a s20 than a s27 so its unfair that the max sentence is the same.
3. 'Bodily Harm' - this phrase is used for all the OAPA offences. In 1861 medical knowlege especially for psychiatric illness was limited. Judicial Presedence has adapted the law to modern knowlege on psychiatric illness and the transmission of diseased. It would be more satisfactory if the law were re-written to cover both of these situations expressly.
1998 Law Commission Draft Bill
In 1993 the Law Commission produced a report and a draft Bill. Never received parliamentary time. 1998 the Government produced a draft Bill which set out four main offences to replace s18,20,47 and Common Assault.
- Intentional Serious Injury - Clause 1: Intentionally causing serious injury to replace s18.
- Reckless Serious Injury - Clause 2: recklessly causing serious injury to replace s20.
- Intentional or Reckless Injury - Clause 3: intentionally or recklessly causing injurt to replace s47.
- Assault - Clause 4: intentionally or recklessly applying force to or causing an impact on the body of another, or intentionally or recklessly causing another to believe force is imminent. To replace Common Assault (assault and battery)
This reform would clear up most of the problems in the present law. Level of injury would be made clear by wording. Draft Bill alsodefined the word injuy to include physical and mental. Wounding is not used (so a small cut would not be a serious injury). Draft Bill also set out a new sentencing framework, matching blameworthiness to the maximum sentence available, more structured.
Draft Bill never became law.
Non-Fatal Offences Current Situation
- Draft Bill never became law.
- A scoping consultation paper took place in 2014 and 2015 by the Law Commission in which they:
- examined the current law
- analysed the problems
- looked at previous attempts at reform (inc. the 1998 draft Bill)
- asked the consultants their opinions on the options of further reforms by amending the 1998 draft Bill
- possible reforms discussed which aimed to restate and clarify the law by creating a structured hierarchy of offences and modernising and simplfying the language in the Act
- This paper ended on the 11 February 2015 as the Law Commission asked for comments up until that date.
- Once received they intend to prepare a scoping report with more definite proposals. However no such measures have been taken by the time I am sitting my exam so I cannot comment on the effects of these.
Insanity Problems: Legal Definition Not Medical
The old definition which is set from M'Naghten is a legal one and not a medical one.
‘everyone is presumed sane, and a person is seen as insane if they are suffering from an abnormality of the mental functioning caused by disease of the mind which substantially impairs the defendant to know the nature and quality of their act or know that their act is legally wrong.
Causes two main problems:
1. Defendants who are suffering from a disease of the mind who cannot use the defence include people who have irresistible urges. D knows what they're doing is wrong but cannot stop themselves (Bryne - sexual psychopath) (Windle - I suppose they'll hang me for this)
2. Some people with physical illnesses are deemed as insane if the illness affects their mental functioning. Diabetics who are acting due to their illness. (Hennesey - no insulin, killed wife) (Kemp - hardening of the arteries).
Other Insanity Problems
1. Major problem is that the law on insantiy comes from a 1843 case M'Naghten. This case made a legal definition of what insanity is. The medical knowledge about mental illness was very limited then and a lot more is known now so there should be a more modern definition.
2. Social stigma surrounding the word insanity. It is one thing to class mentally ill people as insane but it is totally inappropriate to deem people with physical illnesses such as diabetes as insane.
3. The decision in Windle ("I suppose they'll hang me for this") is that if D who has a mental illness and does not know what they have done is morally wrong they still cannot use the defence because they know its legally wrong. This case sets a precedent and has to be followed.
4. Overlap with automatism. Is their automatic state due to mental illness or external factor?
5. The burden of proof is on the defence - they must prove that D is insane. Breach of Arc 6 of the European Convention on Human Rights - innocent until proven guilty.
6. The jury are the ones who decide whether D is insain - not appropriate role for a jury. Should be decided by medical experts as the jury cannot understand technical psychiatric issues.
Insanity: Proposals for Reform
1953 - The Royal Commission on Capital Punishment
- Suggested the N'Naughten Rules be extented to include defendants who were 'incapable of preventing themselves'.
- This would solve the problem for those suffering from ;irresistible impulses'.
- This was not made into a reform but the Government introdueced the defence of Diminished Responsibility.
- However this is only to murder, but judges have discretion on sentencing for all other offences.
1975 - The Butler Committee Suggested the verdict of not guilty by reason of insanity replaced by not guily on evidence of medical disorder.
1989 The Law Commission's Draft Criminal Code Proposed D should not be guilty on evidence of sever mental disorder or handicap.
NON OF THESE PROPOSALS HAVE BEEN MADE LAW.
However, since 1991, the ways judges can deal with D found not guilty by reason of insanity have improved. Judge can made a hospital order, a supervision order or an absolute discharge.
Insanity: Recent Proposals
- In 2012, the Law Commission published a 'Scoping Paper' on insanity and automatism.
- In the Scoping Paper the Law Commission asked questions to discover whether the current law causes problems in practice, and if so, the extent of those problems.
- The papwe outlines the current law and poses a serise of questions.
- Also offeres possible alternatives, but it does not make any definite proposals.
- The responses to the Scoping Paper informed the Discussion Paper.
- Law Commission published a Discussion Paper on 23 July 2013
- In the Dicussion Paper the Law Commission set out provisional proposals for reform of insanity and automatism.
- The Law Commission also explained the related issues of children's developmental immaturity.
The current status the that the Law Commission have published this discission paper on 23 July 2013.
The Law Commission also wrote an easy read guide of this paper highlighting the insanity problems.
Intoxication Problem: Contradictions in the Law
Intoxication can be seen to be contrary to the normal rules of mens rea and actus reus.
DPP v Majeweski - Attacked people in a pub including a police officer. Convicted of ABH and assaulting a police officer on duty. He was intoxicated. Said that becoming voluntary intoxicated was a reckless course of conduct. This ignores the principles of mens rea and actus reus. The decision to drink may have been hours before the offence was committed.
The Recklessness in becoming drunk means D takes a general risk of doing something 'stupid'. At the time of becoming intoxicated D has no idea that he will actually commit an offence. Normally for recklessness, it has to be proved that D knew there was a risk of the specific offence being committed.
Richardson and Irwin - Dropped victim off a balcony during drunken horseplay. Suffered serious injuries. Conviction quashed as the jury had to consider whether they would have done it if they were sober. Being drunk does not automatically make them guilty. This is fairer, but its difficult to know what a particular defendant would have realised id he had been sober.
Intoxication Problem: Specific Intent/Basic Intent
Specific Intent and Basic Intent
- Murder or a Section 18 are specific intent offences. For this intoxication can be used.
- Intoxication is not a defence to basic intent offences.
- This means if D is found not guilty of a specific intent they still may be found guilty of a basic intent.
- Murder down to manslaughter or a s 18 down to a s 20.
- However for other crimes there is no 'fall back offence'
- If D is charged with theft and successfully claims he did not have mens rea due to being intoxicated, he gets a complete aquittal.
The decision in Kingston makes D guilty of he formed the necessary Mens Rea while involutary intoxicated. Ignoring the fact D is not to blame for their intoxicated state. D would not be guilty of a basic intent offence as they are not reckless - unfair to D's in Kingstons situation.
Intoxication Problem: Public Policy Issues
Contradictions in the law on intoxication are because intoxication is largly policy based. This is because of two main reasons:
1. Intoxication s a mojor factior in the commission of many crimes; many offences are committed when D is intoxicated.
2.There is a need to balance the rights of the defendant and the victim. If intoxication were always to be a defence, then victims' rights would not be protected.
Public polict can be seen in the defence of self defence. Parliament enacted the Criminal Justice and Immigration Act 2008 that D cannot rely on 'any mistaken belief attributable to intoxication that was voluntarily induced' when claiming this defence.