Structure - Critcisms and Recommendations for refo
The Law Commission said in their report Murder, Manslaughter and Infancide that "the law governing England and Wales is a rickety structure set upon shaky foundations"
- murder has never been a statutory offence, instead developed by Judges through case law - each new case sometimes generating further case law to resolve ambiguities left behind by the last one.
The LC said that murder should be subdivided into two seperate offences
- 1st degree - would only deal with intention killings, or killings that happened through an intention to cause serious injury. it would carry MLS.
- 2nd degree - killing through an intention to cause serious injury (even without serious risk of causing death) or killing where there was an awareness of serious risk of causing death, coupled with intention to cause some injury, or a fear of injury. would also include voluntary manslaughter.
Mandatory Life Sentance - Criticisms and Recommend
- It is said that MLS means that Judges cannot discriminate between different types of murder cases when deciding what sentance to apply.
(Example being that a mass murderer will recieve the same sentance as a person who kills out of mercy) On the other hand, most mercy killing cases, the defendant is convicted of Voluntary Manslaughter under the defence of Diminished Responsibility.
- a defendant who participates in a murder (minor assistance like informing the killers that the victim has arrived) will also be charged with murder and face MLS.
- most judges are against MLS because they cannot discriminate between the different levels of murder. This was backed up by the HofL Select Committee who agreed that MLS should be abolished.
The Law Commission suggest that only 1st degree murder should carry the MLS
In cases such as stabbings and physical actions which cause death, its easy to determine MR. However trying to establish MR when the primary intention was not to kill is difficult, because only the defendant knows what his actual intentions were and in some cases (Maloney) the defendant didn't even know himself.
Currently, a person who intends to cause serious harm and actually kills his victim is guilty of murder. In Hancock and Shankland the defendants said that they only intended to block the road, not cause serious harm, and definately not death. (convicted of murder, but appealed and changed to manslaughter)
it has been suggested that we "codify" criminal law - this means murder would be included in a new legislation. it was proposed that a person is only guilty of murder if he causes the of another with intention or intention to cause serious personal harm and having an awareness that death may occur. (No attempt at codifying criminal law has occured yet most likely due to lack of parliamentry time)