- Created by: EstherGodwin99
- Created on: 03-05-17 13:16
The law on murder and its specific defences have been severely criticised. In 2006, the Law Commission published a report, ‘Murder Manslaughter and Infanticide’.
In the Law Commissions report ‘Murder, Manslaughter and Infanticide’ no 304 2006 paragraph 1.8 stated that similarly, "the law governing homicide in England and Wales is a rickety structure set upon shaky foundations".
Clearly the law on homicide remains unsatisfactory and in “dire need of reform”.
One issue with murder is that when one is attempting to apply the law, it becomes difficult due to the bit by bit development of the law. The law largely consists of countless of cases, legislation, and writings from a 17th century jurist.
Recent developments have only permeated this issue further. The defences in The Homicide act 1957 have either been replaced or amended in an act that focuses on primarily separate matters relating to coroners, thus providing a reason as to why the Law commission in 2004 called the law “a mess”.An example of this is the meaning of intention in relation to foresight of consequences The House of Lords MALONEY ruled that foresight of consequences is not intention and only evidence in which intention could be inferred in accordance to sec.8 of The Criminal Justice Act 1967. The decision in WOOLIN counteracted this, deeming intention was found from foresight of consequences thus making the law confusing. Clearly the law operates incoherently.
A suggested reform could be an all new act being produced, that provides law on murder in a single place. If this succeeds, this could clean up the law on murder making its application more accessible in court.
Equally important is the matter of the serious harm rule under the present law, this makes the defendant guilty of murder even if they only desired to cause the victim serious harm (GBH) but nevertheless caused their death (VICKERS & CUNNIGHAM). T
his seems largely unfair as in some cases, the defendant may not even realise death is a possibility, yet he may still be just as guilty as someone whose main intention was to kill their victim.
Many feels that if death wasn’t the aim of the defendant they should not receive the same stigma and sentence, but rather a lesser offence of homicide and shorter sentence. Lord Edmund Davies J noted this analogy in the law as being "strange" in the case of CUNNINGHAM.
S1 of the Murder (Abolition of the Death Penalty) Act 1965 states: '... A person convicted of murder shall be sentenced to imprisonment for life...’ The rationale is to impose the highest punishment on most serious crime.
It has also been argued the tariff was set to appease those who opposed the abolition of the death sentence. It means a judge has no discretion in sentence, for those over 18-year-old. There will always be a minimum number of years to be served, before application for release on licence can be made.
This inflexible approach does not allow sentences to reflect circumstances of individual case and it has been argued although murder is clearly a serious crime, there are degrees of seriousness within killings that are not recognised in sentences.
The Law Commission has argued for a reclassification of unlawful killing offences and has proposed dividing murder into two separate offences, first degree murder and second degree murder ('Murder, Manslaughter and Infanticide'). This would address the issue of the serious harm rule and of mandatory sentences. First degree murder would be when the defendant intended to kill or intended to cause serious harm and realised there was a serious risk of death and would carry a mandatory life sentence. Second degree murder would apply when a defendant intended to cause serious injury but was not aware of serious risk of death and would allow for a discretionary sentence with a maximum of life imprisonment. This reform should provide a clear-cut answer to those who are deservedly punished for their conduct, as well as those in which death was not their aim. The Government issued a consultation paper 'Murder, Manslaughter and Infanticide: proposals for reform of the law' in 2008 which rejected proposals for making a two-tier system.
The defence of self-defence as a defence to murder states ‘a person may use force as is reasonable in the circumstances…’ A person may use reasonable force in self-defence or to prevent a crime being committed, what is considered reasonable depends on how the defendant viewed the situation. The objective nature of this rule has led to much criticism. In MARTIN, the defendant shot intruders at his home, one died and the other was seriously injured. The defendant’s appeal on grounds of self- defence was rejected, as he was found to use unreasonable force. On appeal, the court reduced conviction to manslaughter, on basis of diminished responsibility, as defendant suffered a paranoid personality. In CLEGG, a solider at a checkpoint shot at a stolen car which came towards him at speed and killed the victim who sat in the back seat. Evidence proved the fatal shot had been fired once the car had passed the checkpoint, so there was no argument for self- defence. The defendant’s conviction for murder was upheld on appeal.
The Law Commission have suggested self-defence could be made a partial defence, so result in a conviction for manslaughter not murder. This would allow judges discretion to pass suitable sentences. The Government agreed that there was a need to reform the self- defence law.
In light of public and media pressure after the MARTIN case, emphasis was placed on crating some protection for those who acted in self- defence but it was found he used excessive force. This lead to the introduction of the ‘loss of control’ partial defence under the Coroners an Justice Act 2009, which allows for a conviction to be reduced from murder to manslaughter, where the defendant lost control due to fear of violence.
The law on diminished responsibility was reformed by the Coroners and Justice Act 2009. The Law Commission, in their report, Murder, Manslaughter and Infanticide (2006), had recommended that the definition of diminished responsibility should be modernised so as to take into account changing, medical knowledge. The changes made by the 2009 Act have done that. By using the phrase ‘recognised medical condition’ the definition should now be flexible enough to allow for future developments in medical knowledge.
The definition also now sets out clearly what aspects of the defendant’s mental functioning must be substantially impaired in order for the partial defence of diminished responsibility to succeed. This incorporates the decision in BYRNE into the statutory definition of diminished responsibility.
The Coroners and Justice Act has resolved many of the previous problems in the law yet, there still some areas where difficulties remain. A main point is that the burden of proof should not be on the defendant; in most other defences the defendant only has to raise the issue and the prosecution has to disprove it. This should also apply to diminished responsibility. At the moment, defendants pleading diminished responsibility are at a disadvantage which is not faced by those raising loss of control. It has also been argued that putting the burden of proof on the defendant could be a breach of Article 6 of the European Convention on Human Rights which states that ‘everyone charged with a criminal offence shall be presumed to be innocent until proven guilty according to law’. Making the defendant prove diminished responsibility could be considered a breach of this right to be presumed innocent. In addition, there is still confusion as to what ‘substantial’ means. In LLYOD, the courts said it does not mean ‘total’ nor does it mean ‘minimum’- how does a jury decide this?
LOSS OF CONTROL
The Coroners and Justice Act 2009 abolished the old defence of provocation and replaced it with the defence of loss of control. This reform was made because there had been many problems with the law on provocation. Provocation was often criticised for discriminating against women as the requirement for the loss of control must be sudden– more suited to men’s psyche and meant women like AHLUWALIA were forced to rely on diminished responsibility as they were prone to slow burn effect.
New law however, removes this requirement. Provocation provided a defence for anger, was interpreted too widely as in DOUGHTY, where defendant was provoked by a crying baby. New law states that the qualifying trigger must be things said or done of extremely grave character, causing the defendant to have a justifiable sense of being wronged, so Doughty would fail this test.
sexual infidelity being too vague. The old law on provocation was regarded as “nagging and shagging defence” indicative of the roots of the defence and the most common cases. The decision to exclude sexual infidelity was not one made by the lawyers at the Law Commission but politicians who stated that this prevented men who carried out horrendous crimes having a defence. There is no definition of what the act covers in terms of the types of relationships or acts that constitutes to sexual infidelity. As well as this, the jury could find it hard to consider the events but at the same time disregard the fact that it constituted to sexual infidelity. Under the case of CLINTON, the law has actually perpetuates the uncertainty since it allows sexual infidelity to be considered by the jury where another qualifying trigger is raised, and when it is necessary to consider the context in which this other trigger occurred. This makes it confusing as to whether it can be a consolidating trigger, and in some cases, it could deprive justice.