Criticising Murder

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No Defence of Duress

Duress is where the defendant comits a crime as they have been threatened. 

It is a defence to most defence but not murder, or attempted murder, 

The Law Commission criticises this as it makes those who are forced into a crime guilty of the same offence who made them. They proposed to make duress a complete defence if the D can show they had no realistic opprotunity of seeking police protection. 

The Law Commission report on MMI explains duress further. 

Depending on the circumstances (e.g D believing her children...) some people think duress should be available. 

Proposed that duress should refuce 1st to 2nd degree murder. Law Commission now believe that if the D can show they were threatened with harm, no option to get help, not justifiably exposed himself to the risk of being threatened = duress should stand as a complete defence. 

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No Defence when Excessive Force is used.

If a D can show he used reasonable force in self defence when he killed= no guilty of murder. when excessive force is used then he is. 

Very hard in murder cases where EF is used. The D is either acquitted or given a life sentence (no inbetween). 

Martin (2002)- D shot burgar and found guilty of murder due to EF.

Law Commission proposed that EF should be used as a partial defence, but a new defence of loss of control was made to attempt to solve the problem.

This can be used when the D is ''  '' that is, not in control of their actions and acting in a way unusual of them.

The Legal Aid, Sentencing and Punishment of offenders act 2012 s5A: householders can use disproportionate force in defending themseves against intruders in the home= reflects public opinion sometime EF is justified. 

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Serious Harm Rule

Law Commission report on MMI pointed out it was never intended for a D to be convicted of murder when he only had the lesser intention of serious harm. 

This is because there is no clear distinction- kill in cold blood/ intended harm but not death. 

In Cunningham= HL also criticised rule. They said it's strange that a person can be convicted of murder if e.g. death results from intentional breaking of nose= undoubtably involves RSH (Vickers) should carry a server punishment it is unlikely. Jury decides if an offence is serious of not. 

Even for someone who did not believe their act to be serious can find themselves in the same category as a serial killer (1.17 SHR). 

D intentionally punches someone= breaks nose=fatal brain haemorrhage would be urder if jury decide punish is serious. 

Currently- fact that D intented RSH is a mitigating factor (1.20 SHR)- may still be that an offender gets a MLS. 

Recommended in CJA 2003= spilt into those who malicisciously intended murder, only intended serious injury and was unaware of risk of death (1.23 SHR) 

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Proposals of reform for Murder

  • Suggested a three tiered system for murder -First degree, second degree, mansalughter. 
  • MLS only apply to first degree murder (intention to kill)
  • Suggested duress should be available to murder
  • Provocation should be extended to include where someone reacts to a threat of serious harm. 
  • Diminished Responsibility should be reduced to only include ''medically recognised conditions''
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