- The Law on murder is heavily criticised and is in great need of reform
- Law Commission; "It has a rickety structure set upon shaky foundations" and it's a "mess".
- Written in the 17th century and therefore used archaic language
- Implications beyond its actual meaning e.g. 'malice aforethought' implies that you have to think about the killing.
- Many levels of criminality within one offence, from cold-blooded serial killings to less malicious mercy killings.
- All arguably different killings put in one category.
- The Law Commission have suggested a degree system to deal with this.
Murder: Life Sentence
- Life sentence is mandatory for Murder
- Judges get no discretion or flexibility - they can't give a lesser sentence even if they feel it's necessary
- Those who intend GBH face a life sentence - unfair because they didn't intend to kill.
- Euthanasia - those who assist an ill loved one with dying may face a life sentence - criticised because they are unlikely to be dangerous or malicious - Diane Pretty.
- Those who are under duress will have to face a life sentence as duress is not a defence to murder.
Murder: Mens Rea
- Satisfied by intention to cause GBH
- Law Commission: Parliament didn't intend for those who "are not in truth murderers"(didn't intend death or see the risk) to be convicted of murder.
- Lord Edmund says the mens rea should be intention to kill.
- Woolin virtual certainty test: Leading authority that foresight of consequences is sufficient mens rea but Parliament haven't clarified this - they could if reform was made.
Law Commission have suggested a degree system to reform the offence.
- 1st Degree Murder: Max life sentence and requires intention to kill or cause GBH seeing the risk of death.
- 2nd Degree Murder: Max life sentence at the judge's discretion and requires intention to cause GBH without seeing the risk of death.
The House of Lords Select Committee have suggested that the mens rea becomes intention to kill or cause GBH seeing the risk of death.
These reforms would help solve the issues on mens rea, but do not deal with the levels of criminality.
Voluntary Manslaughter: Introduction
- Despite recent reforms in the 2009 Coroners and Justice Act, the Law on voluntary manslaughter (loss of control) is still 'difficult and in need of interpretation' - Lord Judge.
Voluntary Manslaughter: Protection of Women
- Old law criticised for being discriminatory against women - required a sudden reaction - Ahluwalia.
- This has now been removed but still criticised by womens' councils because the longer the delay, the less likely they'll get the defence.
- Makes it harder for women to plead: In 2004, 83% of women who pleaded this defence used a knife - showing delay because they had to physicaly go and get the weapon.
Voluntary Manslaughter: Sexual Infidelity
- No longer a qualifying trigger - good because men can no longer say their wife provoked them by cheating on them - Clinton
- Criticised: Gone beyond the recommendations of the Law Commission.
- Sexual infidelity is a common and powerful provoking factor - unfair to exclude it when words alone can amount to a qualifying trigger.
- Term is criticised as being vague as it's unclear what it includes.
Voluntary Manslaughter: Moral Foundation
- Lack of moral foundation - gives a defence to those who get angry and lose control - blames the victim for their own death because they provoked them.
- Law Commission: "unduly makes the victim the defendant".
- Elliot and Quinn: "it encourages a society of victim blaming".
Voluntary Manslaughter: D's Circumstances
- Can now be taken into account when assessing the gravity of the provocation - good because the effects of sexual abuse can be taken into account - Gregson.
- Defence is criticised for being too hard to plead: 'seriously wronged' is objective and 'grave provocation' hasn't been clearly defined.
Voluntary Manslaughter: Reforms
- Law Commission: remove the first stage (a loss of control) and focus on stages 2 and 3. They also want to make sexual infidelity a qualifying trigger, which would deal with the criticism over it being an important provoking factor.
- Both need reform but Vol/MS is much healthier
- The government rejected the murder reforms in 2009 and have said "it isn't the time to take forward such substantial reform" in regards to Vol/MS.