Murder is defined as the unlawful killing of a human being under Queen's Peace with malice aforethought.
The current common law comes from the 16th century and so fails to refelct a sophisticated 21st century society.
- Much of the language is outdated: the ordinary person would assume that 'malice aforethought' requires a pre-meditated killing when is does not.
- This definition does not allow for any differentiation between different kinds of killing, ranging form serial killings to mercy killings.
- There is almost universal agreement that the law on murder and manslaughter need to be codified to make the language more appropriate, modern and accessible for today's society.
Many argue that the mandatory life sentence is unfair as it does not allow for judicial discretion to reflect the individual case. The current position allows the law to stigmatise the worst killers as murderers.
- There should be a clear distinction between a mercy killer (Wragg) and serial killers.
- This is because they both recieve the label 'murderer' when the motives are clearly different.
- The Law Commission has proposed to resolve this problem by suggesting two degrees of murder, which would more efficiently reflect the range of killings.
- The mens rea 'malice aforethought' has attracted major criticism because 'there is no need to show any kind of malice or ill will' and also because the term suggests the need for pre-meditation.
- It is also argued that an intention to cause serious harm should not be included within a murder charge.
- In Powell, Lord Steyn was highly critical of the mens rea; 'a defendant may be convicted of murder that is no ordinary sense a murderer'.
- He argued that the law should change and that only intent to cause aerious harm, along with an awareness of the risk of death should provide the mens rea.
Intro to defences and DR
The special and partial defences to murder have also been criticised, if the mandatory life sentence was abolished, then there would be no need for these defences or even the degrees of murder were introduced, the judge could reflect differing circumstances.
The special and partial defence of diminished responsibility was introduced by Parliament to resolve inadequacies of the law of insanity. Diminished responsibility carries a reversed burden of proof which vreates in justice since the defence must prove that the defendant was suffering from diminished responsibility.