Criticisms and Proposals for Reform

• Criticisms and proposals for reform are needed for murder, LoC, DR, Assault and two general defences

Overview

• Facts:
  • LC did a report on 'murder, manslaughter and infanticide. Described as a 'rickety structure set upon shaky foundations'

• Crit 1. Intention - lacks clarity
  • Definition - Moloney, Crim Just Act 1967
  • Foresight of consequences - Moloney, Woolin, Mathews and Alleyne
  • Serious harm rule
    • Hancock and Shankland
    • Judicial Criticism - Cunningham
• Crit 2. Self-Defence - Clegg, Martin
• Crit 3. Mandatory life sentence - Murder (Abolition of the Death Penalty Act 1965)
• Prop 1. Law Commission - Intention
• Prop 2. Law Commission - Reclassification

• Only MR available for murder (specific offence) but it lacks clarity

Definition

• Moloney (1985): 'when directing a jury on the mental element necessary in a crime of specific intent, the judge should avoid any elaboration or paraphrase of what is meant by intent and leave it to the jury's good sense to decide whether the accused acted wtih the necessary intent
• Codification int the Criminal Justice Act 1967:
  • s8. A court or jury, in determining whether a person has committed an offence
    • s8(a) shall not be bound in alw to infer that he intended or foresaw a result of his actions by reason only of its being a natural and probable consequence of those actions; but
    • s8(b) shall decide whether he did inend or foresee that result by reference to all the evidence, drawing such inferences from the evidence as appear proper in the circumstances

Foresight of consequences

• Cases have attempted to explain the effect of foresight of consequences, but still an area of confusion
  • Debate around whether foresight of consequences is intention or only if intention can be found from foresight

Moloney (1985)

• Foresight of consequences not equal to intention. Only to be considered evidence from which a jury could infer intention

Woolin (1998)

• HL: jury could find intention from foresight of consequences. This has led to uncertainty

Matthews and Alleyne (2003)

• CA: very little difference between a rule of evidence and one of substantive law

Serious Harm Rule

Fairness

• Controversial that a person who intends GBH but actually kills someone is guilty of murder
  • could be argued that this is unfair. No distinction between cases where someone itends to cause serious harm and where someone itends to kill.
• LC 2006 report 'Murder, Manslaughter and Infaticide': offence too wide. When Homicide Act 1957 was passed, it was intended that a killing would only amount to murder if D realised death was a possible consequence of his conduct

Hancock and Shackland (1986)

• Ds threw concrete block over side of bridge. Hit taxi and taxi driver died
• HL substituted murder for manslaughter, and accepted Ds' argument that their intention was only to block the road

Judicial Criticism

• MR for murder should be restricted to intention to kill

Cunningham (1982)

• Lord Edmund Davies: ' I find it passing strange that a person can be convicted of murder if death results from, say, his intentional breaking of another's arm, an action which, while undoubtedly involving the infliction of 'really serious harm' and, as such, calling for severe punishment, would in most cases be unlikely to kill. And yet, for the lesser offence of attempted murder, nothing less likely than an intent to kill will suffice. But i recognise the force of the contraty view that the outcome of intentionally inflicting serious harm can be so unpredictable that anyone prepared to act so wickedly has little ground for complaint if, where death results, he is convicted and punished as severely as one who intended to kill...' 
  • Despite these sort of criticisms, the judiciary have declined to create such a precedent through case law. Many feel it is a matter that Parliament should address and is therefore beyond judicial powers to make such a change

• D may use a reasonable degree of force in the circumstances, as he honestly believes them to be
• This has been criticised for being too subjective
  • If a D acts in self-defence, or to prevent a crime, can have a complete defence and is not guilty of murder
  • If the force used is considered disproportionate (or 'grossly disproportionate' in householder cases)

• Murder (Abolition of the Death Penalty) Act 1965 - s1 a person convicted of murder shall be sentenced to imprisonment for life
• Done to impose the most serious punishment for what is considered the worst crime
• There is no discretion from judges
• Despite highlighting that the law views murder as the most serious of offences, this does not allow to consider the circumstances of individual cases
  • Although murder is undoubtedly serious, it has been argued that there are degrees of seriousness within individual circumstance which cannot be recognised

Overview

• Crit 1. Allows for more people to be considered for the defence - Lesbini
• Crit 2. Stricter in terms of what can be a qualifying trigger
• Crit 3. No longer a requirement for LofC to be sudden
• Crit 4. Fear of serious violence
• Prop 1. Law Commission - Remove crteria.
• Prop 2. Law Commission - Qualifying triggers

• Under the old law, Lesbini failed, because the 'reasonable man' was not jewish
  • That could have been considered unjust
• Reasonable man test has been replaced by 'Normal Person' test
• A person of D's sex and age, with the a normal degree of tolerance and self-restraint and in the circumstances of D, might have acted in the same, or a similar way to D 
  • This should lead to fairer outcomes

• Under Provocation, anything could have been considered a qualifying trigger
  • Doughty
• Now, the conditions of what could be considered a qualifying trigger are stricter
  • Cannot be inciting V to attack D to claim this defence (Dawes)
  • Cannot be sexual infidelity (Clinton)
• This prevents miscarriages of justice, as people cannot kill their cheating spouses and get away with murder
• Stricter conditions mean that D has to have a justifiable sense of being seriously wronged - Doughty, Boywer

Intention

• 'Offences Against the Person and General Principles' 1993 - suggested definition for intention - 'a person acts intentionally with respect to a result when: it is his purpose to cause it or although it is not his purpose to cause it, he knows that it would occur in the ordinary course of events if he were to succeed in his purpose of causing some other result'

Reclassification

• 'Murder, Manslaughter and Infanticide' 2006 - murder should be split into two seperate offences - first degree murder and second degree murder
  • First-degree murder - if D intended to kill. If D intended serious harm + realised a serious risk of death as a result of his conduct. Mandatory Life Sentence
  • Second-degree murder - if D intended to cause serious injury but was not aware of a serious risk of death. Discetionary sentence w/ max of life imprisonment

Remove Criteria

• Law Commission proposed to remove criteria completely. Introduced to include women in abusive relationships, but they may kill from a combination of emotions and not necessarily a loss of control
  • Arguably still too restrictive

 Qualifying Trigger - Sexual Infidelity

•  Provocation grew from these cases
• Unfair for this to be a limitation, as many people would lose control in this circumstance

Fear of Serious Violence

• includes cases such as Martin and Clegg.
• This is irrelevant in most cases, as it must have lead to a loss of control

Overview

• Crit 1. Burden of proof on party raising the defence
• Crit 2. Objectivity
• Crit 3. 'Recognised medical condition' (Dowds)
• Crit 4. 'Substantially' definition

• In DR, on the party raising the defence (D) to prove it
• dismissing doctrine of innocent until proven guilty
• Does only have to be proven on a balance of probabilities

• Byrne (1960) - abnormality of mental functioning = D's actions are so different from that of an ordinary human being that the reasonable man would term them abnormal
  • An objective test
• Advantage: all tested by the same criteria
• Disadvantage: different juries will interpret the reasonable man differently, so is the outcome just?

• Put into doubt after the ruling in Dowds

Dowds

• D argued that 'acute intoxication' was a disease, making it a recognised medical condition
• Appeal dismissed: voluntary acute intoxication would not satisfy the requirements of diminished responsibility
  • Coroners and Justice Act 2009 never specified that a recognised medical condition could not be applicable if it was voluntary
    • Confusion in the law

• 'Substantially' is not defined in the Act
• Slightly varying definitions have been suggested
  • Egan, Thornton, Seers

• Crit 1. Complicated and technical structure of the Act
• Crit 2. Language
• Crit 3. Inconsistency between offences
• Crit 4. Sentencing anomalies

• Section numbers not in any logical or sensible sequence
  • This was a consolidation Act
    • Consolidation is done to simplify the law, but this has arguably done the opposite
  • Makes access to the law difficult

• As a consolidation Act, much of the language remains unchanged from the older Acts
• Language is old fashioned, obscure and inconsistent (inflict/cause)
  • Much of the language would be difficult for ordinary citizens to understand (malicious, grevious)
    • some has been solved by case law - 'grevious' in Smith and Saunders
    • 'Bodily harm' has been extended to include psychiatric injury - Ireland

• s47 MR is same as s39 MR
  • Potential sentence increase of 4 and a 1/2 years between people who recklessly touch someone where one leaves a slight bruise but the other does not
• s20 states 'wound' - does not specify the severity required.
  • Someone who has caused the smallest cut could be found liable for a more serious offence than someone who has knocked somebody's tooth out (which is only ABH)
• Someone intending to resist arrest could be charged with indictable s18
  • Could be far less severe than s18 GBH where intention is to cause really serious injury. Arguably unjust

• s39 - 6 months prison. s47 - 5 years prison 
  • Big leap, as s47 committed by simply interfering with V's health and comfort
  • Same MR. Only AR that has changed
• s47 + s20 = same maximum sentence of 5 years
  • s20 is a more serious offence
• s20 + s18 = same AR, but sentence jumps from 5 years to life

Offence                                 Present Max Sentence                    Proposed offence                    Proposed Max Sentence

s39 Assault andBattery         6 Months                                          Assault                                    6 Months (No Change)

s47 ABH                               5 Years                                             Intentional/Reckless Injury      5 Years (No Change)

s20 GBH                               5 Years                                            Reckless Serious Injury           7 Years (+ 2 Years)

s18 GBH                               Life                                                   Intentional Serious Injury         Life (No Change)

Overview

• Insanity
  • Crit 1. Overlap with automatism
  • Crit 2. Verdict
  • Prop. Not guilty by reason of mental disorder - Butler Committee 1975
• Consent 
  • Crit 1. Individual freedom
  • Crit 2. Euthanasia
  • Prop.  Individual freedom - Law Commission

• the main difference between the two defences is that insanity must result from an internal factor, while automatism can result from an external factor
  • very similar offences have very different verdicts and results
    • successful automatism means an acquittal but being 'not guilty by reason of insanity' means that a judge must impose some sort of order
    • e.g. Hennessy and Quick

• The verdict makes insanity an unapealing, unwanted defence

Indefinite Detention

• can lead to indefinite detention in secure hospital for 15 years - longer than a life sentence could be
• Many offenders suffer mental health problems but insanity is a rare defence due to the potential consequences
• European Convention of Human Rights Art 5 - a person of 'unsound mind' may be detained, but are also afford protections which have een interpreted to mean the need or objective medical expertise
  • This medical expertise not always involved with insanity plea

Stigma

• a stigma surrounds the word 'insanity'
• Arguably outdated and you do not actually have to be insane to qualify (e.g. Burgess)

• Major reform needed
• Introduce 'not guilty by reason of mental disorder'
  • Applicable for:
    • When D = unable to form required MR due to mental disorder
      • OR
    • When D = aware of his actions but was suffering from severe mental illness at the time

R v Brown and Others

• Homosexuals engaged in sado-masochistic activities
• Ruled that consent could not be used as a defence, as the force suffered exceded s39 CJA
• Appeal dismissed: Confirmed that consent can only be used in cases of s39 - any greater injury not in public interest

Wilson

• On his wife's (V's) request, D branded his initials onto her buttocks
• V's brand got infected and she had to seek medical attention. D convicted of s47 ABH
• Conviction quashed
  • branding falls under exception of tatooing
  • not in public interest to criminalise this, as it was described as a case of 'personal adornment'

• consent cannot be given for killing
• If a patient can consent, then their doctor cannot treat them w/out consent but a patient cannot refuse treatment to bring about their own death
• Concern that allowing competent patients to die could lead to vulnerable people being 'killed off'
• Suicide Act 1961 - assisted suicide = unlawful

Pretty (2002)

• ECHR Art 2 does NOT give right to die

R (on application of Purdy) v DPP (2009)

• unclear if offence has been committed if someone travels abroad to assist someone committing suicide

Bland

• Lord Goff: 'the law draws a crucial distinction between cases in which a doctor decides not to provide, or to continue to provide, for his patient treatment or care which could or might prolong his life, and those in which he decides ... actively to bring his patient's life to an end'

• In 'Consent in sexual offences' - reccommended that 'subsisting free and genuine agreement should count as consent to a sexual act by another
• In 'Consent and Offences Against the Person' - a person's body = their own + the law should not dictate what can be done with it
  • Agrees that law should set a limit to the injury to which a person can consent
  • Some exceptions should be made - e.g. ritual circumsicion, ear-piercing, tatooing