- Created by: Barbastelle
- Created on: 28-05-17 22:35
Criticisms and Reforms of Murder
The current definition of murder comes from the 17th century, so it is outdated and would need to be explained to a jury, as they wouldn't naturally understand words such as 'malice aforethought'. These words aren't explained within the definition either, so case law is relied upon to set out guidelines. The Law Commission described the law on murder as a "rickety structure set upon shaky foundations".
A reform to this would be to update the definition of murder into clearer, more modern language.
Criticisms and Reforms of Murder 2
Intention to cause GBH is enough to satisfy the mens rea for murder, so people who had no intention of killing the victim are still treated the same as those who did, as in R v Vickers. This makes murder too easy to prove and seems unfair on the defendant.
Mandatory life sentences are inflexible and unfair, because this gives everyone the same starting sentence regardless of their intention, so cold-blooded killers and people who commit euthanasia are treated the same. This goes against the principle of judicial independence.
Reforms for both of these would be to introduce a tiered system to murder, with only first degree murder (murder with intent) receiving a mandatory life sentence. The Coroners & Justice Act 2009 created voluntary manslaughter, which gave some leniency in sentencing, but didn't change the law on murder. The Director of Public Prosecutions, Keir Starmer, said he would support the introduction of first and second degree murder, like in America.
Criticisms and Reforms of Diminished Responsibilit
Diminished responsibility was recently reformed in the Coroners & Justice Act 2009, placing an emphasis on medical evidence given by doctors, which allows for future medical developments. It also examines the extent to which D was affected by their mental illness, following the definition "substantially impaired" given in R v Byrne.
The defence is misused in euthanasia cases, because the courts tend to treat these cases sympathetically, as in R v Mawditt, where D was given a three year conditional discharge under diminished responsibility, despite him not suffering from a mental illness.
A reform for this would be to change the laws on euthanasia, so that cases would no longer be classified as murder.
Some cases have not allowed the defence despite there being overwhelming evidence in support of it, as in R v Sutcliffe, where three well-respected psychiatrists confirmed that D was suffering from paranoid schizophrenia, but D was denied the defence and convicted of murder.
A reform for this would be to introduce a proper definition of what "substantially impaired" means, to make it harder for juries to misuse the law to achieve what they believe is 'moral' justice.
Criticisms and Reforms of Diminished Responsibilit
Contrary to the Law Commission's recommendations, the defence does not include developmental immaturity, because the Government believed that conditions affected by 'developmental immaturity' such as autism and learning disabilities would be covered under 'recognised medical conditions'. However it is possible that not all of these would be covered and some defendants could be wrongly refused the defence.
The law should be amended to include this as recommended by the Law Commission.
Criticisms and Reforms of Loss of Control
This defence replaced the previous, more outdated defence of provocation when the Coroners and Justice Act 2009 became law. It removed sexual infidelity as a qualifying trigger for the defence, and introduced the 'fear of serious violence' in order to make the defence less discriminatory against women.
The objective test is essentially unattainable as a 'person with a normal degree of tolerance and self-restraint' would not commit murder or respond to provocation in such an extreme way. This makes the defence practically unusable unless D can gain the jury's sympathies.
A reform would be to adjust the wording of the objective test so it becomes easier to pass.
Sexual infidelity should perhaps not be excluded, as people finding a cheating partner would be likely to lose their control and yet would not be allowed the defence.
A reform would be to add this as a qualifying trigger. R v Clinton addressed this, and D was allowed the defence due to other factors.
Criticisms and Reforms of Loss of Control 2
The new defence is still unfair to battered wives, as the Law Commission recognises that they may kill from a "combination of anger, fear, frustration and a sense of desperation" rather than due to a "loss of control". So some abused women (e.g. Kiranjit Ahluwahlia) would not be able to show a loss of control. If someone in an abusive relationship is suffering from battered wives syndrome then they are not a person with a "normal degree of tolerance and self-restraint", but they will be compared to one, making this element difficult to prove.
Further reforms may be required to fully resolve the fact that the defence discriminates against women. This could be done simply by amending the defence to reflect the Law Commission's original recommendations.