Criticisms of Murder and the Partial Defences

Criticisms

• The life sentence decision occurred as a result of the Murder (Abolition of the Death Penalty Act) 1965
• The DPP and the Law Commission in 2004 stated that 'the present law in England and Wales is a mess'
• Cannot pass the appropriate sentence dependent on the circumstance- Humphries and Thornton
• Mercy killings Inglis same treatment as serial killers with intention to kill Wests, Peter Sutcliffe

Reforms

• DPP recommended a more flexible system
• Private members bill- euthanasia as a defence for mercy killings
• 2006 Law Commission's Report- Murder, manslaughter and infanticide. Different degrees of murder. First degree- intended serious harm, foreseeable risk of death

Criticisms

• Force is excessive, defence fails- Martin
• Difficult to assess the situation rationally and logically in the heat of the moment- unfair as miscalculation could lead to life

Reforms

• D should be convicted of voluntary manslaughter so a lower sentence can be imposed if it is clear D honestly and instinctively thought that level of force was necessary

Criticisms 

• 1989 MR was "foresight of consequences" Hancock, Shankland. Motive to block road but convicted of murder.
• Implied malice is sufficient as in Vickers 
• In Cunningham, Lord Davies: " MR should not include intention for GBH" and should be "limited to the intent to kill only." Lord Steyn agrees. 
• Criminal Law Revision Committee: "it is wrong in principle that a person should be liable to be convicted of murder who neither intended nor was reckless as to the most important element in the offence, namely death."

Reforms

• Make MR of Murder intent to kill only

Criticisms 

• Definition of indirect intent is ambiguous and complex Maloney
• Lord Bridge believes in most cases the Jury are competent to decide whether D intended the consequences however Woolin and Smith altered the meaning to include virtual certainty 

Reforms

• Offences against the person and general principles report- the Law Commission thinks there should be a clearer definiton 
• Parliament should intervene and provide a new definition for such a fundamental aspect of murder so it doesnt need to be changed often Glanville, Williams

Criticisms 

• Ambiguous wording also in the Homicide Act, making the definition of ‘abnormality’ unclear so required a reform that took place under the Coroners and Justice Act 2009
• Exclusion of developmental immaturity as a recognised mental condition
• Stigmatisation- Ahluwalia. Social services take the children. 
• Burden of proof lies on D- breach Article 5 Human Rights and innocent until proven guilty
• DR not available for mercy killings- Cook, Higginbotham

Reforms

• Parliament should add a defence for mercy killing to reduce inequalities
• Add developmental immaturity 
• Shift burden of proof to prosecution to prove D was not suffering from an abnormality of mental functioning

Criticisms

• Exclusion of sexual infidelity unless there is depression/intoxication Clinton
• Qualifying triggers difficult to understand- Lord Chief Justice said: “there is no point in pretending that the practical application of this provision will not create considerable difficulties.”

Reforms

• Existing qualifying triggers are redefined to make it clearer as to when D’s special characteristics can be taken into account. 

• Jury should be able to use the facts of the case to decide whether this trigger was of extremely grave character or not