Law Evaluation Essay Breakdown - Murder and Voluntary Manslaughter

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Introduction

  • 2006 Law Comission Report: 'Murder, Manslaughter and Infanticide'
  • report described as: 'rickety structure set upon shaky foundation'
  • problems occured due no change since 17th Century
  • law is functional but still unjust and in need of some serious reform
  • 'In this essay I will adress the current problems that care causing discussion in society about the law on Murder and Voluntary Manslaughter and also discuss some reforms that culd be put forwrads by various government bodies in order to make the law more efficient'
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Paragraph 1

  • Major problem = 'intention to kill or intention to cause GBH (Vickers)
  • Problem = people who intend to kill are found as guilty as people who didnt intend to forsee harm of their actions
  • Vickers: Lord Goddard - "Murder is, of course, killing with malice aforethough, but malice aforethough are words a art"
  • Lord Goddard - saying 'malice aforethough' if ambiguous and is misleading because doesn't have to be premeditation for murder; MR can rise from heat of moment
  • Implied malice been under scrutiny by many law writers and judges due to it extending definition for murder too far (too broad an interpretation)
  • Cunningham: Lord Davies - MR for murder should be limited to intention ONLY
  • Suggested Reforms: if D intends serious harm and foreseen death could be consequence of actions. If rule was taken aboard it would ensure D takes full responsibility for consequences of conduct and cant think they will be 'let off' with killing another 'reasonable creature'
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Paragraph 2

  • Problem: mandatory life sentence which was laid by Murder (Abolition of the Death Penalty) Act 1965
  • Reason for life: murder is seen to be worst crime to be comitted so deserves highest sentence permitted by law
  • Problem: if D is over 18 judge imposes 'life sentence' if found guilty. After imposing they decide upon tariff (minimum number of years to serve before release considered)
  • Objections by public judges and LC: cold blooded serial killers e.g. Sutcliffe and mercy killing e.g. Francis Inglis all convicted of murder so not matter what seriousness of crime they attracy all same sentence = people think its unjust
  • Suggested Reform: abolish mandatory life sentence and make it discretionary. Judge imposes sentnece depending on seriosuness of crime and this would allow individual circumstances to be taken into account 
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  • Problem: no defene of excessive force in self-defence
  • Martin: jailed for killing intruder to his own home.Led to public outcry as acting in self-defence and deciding what amout of force to use can cause diffilculty
  • Problem: general public feel its incredibly unjust to put 25 year sentence to a D who was acting in self-defence e.g. Tony Martin
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  • Suggested Reforms: make law more just = codify law and put it into statutory footing. Means judges and jorors dont have to rely on case law to impose sentence they can refer to legislation and statute
  • Many problems outlined would be addressed as lawyers would write statutes so the contentious aspects of murder would be made more just as they would be properly phrased 
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Partial Defence: Diminished Responsibility

  • Update in DR appeared in S2 Homicide Act 1957 to it appearing in S52 Coroners and Justice Act 2009
  • Still concerns in the law regarding potential problems about the law on this partial defence
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  • Problem: easily manipulated
  • Heginbotham: killed wife as an 'act of love', able to plead DR and received 12 month rehabolitation order
  • manipulating system as he had no recognised medical conditions e.g. paranoia or eplilepsy as in cases of Martin or Campbell that has been approved by 2 medical experts or stated in World Organisational Health Book
  • Order to plead you suposed to have suffered from medical condition which causes D to have abnormality of mental functionin e.g. Gittens or Seers with depression
  • No evidence of Heginbotham having medical condition so shouldnt have been allowed to plead DR. So used to fit cases it shouldnt so easily manipulated 
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  • Problem: used at wrong times
  • Opposition to previous paragraph it was legally supposed to be used in a case of Sutcliffe
  • denied DR on public policy grounds although in this case D was suffering from Recognised Medical Condition
  • strong evidence provided to help plead DR but denied him of it
  • Sutcliffe, lived and reated in Broadmoor, reinforces idea he was mentally ill and this was essentially ignored in his trial
  • DR is used at wrong times, when its neededits not used, and when its not supposed to be used its not used
  • Public and law writers believe the above is unjust 
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  • Problem: burden of proof
  • defence of DR: D must prove they are suffering from Recognised Medical Condition and 'abornmality of mental functioning
  • other defences it is the D who has to raise the idea but P have to disprove it
  • means D's pleading DR are at disadvantage to those pleading LOC which could be seen to be unjust
  • putting burden of proof on D may mean its breaking European Convention of Human Rights as Ds are 'innocent until proving guilty'
  • When pleading DR it is th eother way round
  • If D doesnt produce enough evidence to suggest they are suffering from RMC and AoMF then their plea for DR will be unsuccessful 
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  • Suggested Reforms: LC suggest including immaturity to the defence, which would allow children a defence onthe basis that there should be consideration that if a ten year old commits murder there may be issues relating to immaturity that might lower charge to voluntary manslaughter. Helpful in cases just as James Bulger
  • Governent decide not to adopt reform above. Led to an adult who has a mental age of a chil being bale to plead DR but a child wouldnt be able to use the defence because their immaturity would be considered to be normal due to no amendments being made to the definition 
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Partial Defence: Loss of Control (LOC)

  • Statute: found in S54 and S55 Coroners and Justice Act 2009
  • statuts abolished old defence of provocation
  • LOC give judges powers to judge if LOC should be put in front of jury
  • law on LOC prevent spurious cases such as Doughty for making it to trial and allows for greater consistency in the decisions made in the acses
  • despite fairly recent reforms it still attracts much criticism
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  • Problem: qualifying trigger 'fear of serious violence'
  • no attempt to adress probelm faced by women who kill their partners after suffering abuse in cases such as Thornton No2 and Ahluwalia
  • Positive change: in old defence of provocation it had to be 'sudden and temporary' but in LOC this has been abolished so LC believe new law should be formed as the first qualifying trigger is quite ambiguous and quesitonable bu judges and jurors
  • yet to still be sen if proposal will be achieved
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  • Problem: 'things said or done'
  • phrasing gives too wide an interpretation
  • sexual infidelity should be disregarded and this helps prevent men killing partner if they were to do things such as have an affair
  • e.g. words/conduct could be considered a sprovoking and cause D to lose control
  • sexual infidelity = problematic. Even though in SS5 (6) (c) it says sexual infideility should be completely disregarded immediately Clinton shows sexual infideility was used to help someone plead LOC. It diluted the courts in this case and was taken into account 
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  • Suggested Reform: LOC should be reoved from statuts altogether (suggested by law writer and LC) like New Zealand as very rare there are going to be circumstances where a reaosnable man would kill due to anger
  • Many pleas for LOC are unsuccesful = objective test failed
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  • Suggested Reforms: whole reclassification of Homicide
  • 2006 LC report: suggests complete reclassification murder and Volunatry manslaughter 
  • proposes of murder being separated into 2 parts: first degree and second degree murder
  • cases where D intended to kill or cause GBH and consequences of their actions was death it would be classified as first degree murder and would carry life sentence and judge would impose tariff
  • Cases where D intended to cause seriosu harm but want aware of detah being a consequence would class as second degree murder which would be left to judge's discretion
  • setting it out like tis would codify the law and make it more accessible
  • however, wouldnt address mercy killing and they still intend to kill and would be convicted of first degree murder 
  • more sensible reform to abolish life sentence and allw discretion to differentiate different seriousness of murder
  • judges oculd then impose life sentence to those who deserve it and reduce it according to seriousness of the murder and its circumstances 
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Conclusion

  • Murder and manslaughter recently reformed in Coroners and Justice Act 2009
  • however problems are still occuring and causing discussion and cotroversy in society today
  • evidently, people in government and LC are putting proposals foorward for reform in order to make the law more effective and just to people in society today 
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