Murder and loss of control evaluation

In the law commission report murder manslaughter and infanticide 2004 it was said that the law governing homicide in England and wales is a rickety structure set upon shaky foundations. I will focus on murder and the partial defence of loss of control.

One area of murder that can be criticised is the mens rea aspect. The mens rea for murder is intention to kill or to cause serious harm. In R V CUNNINGHAM Lord Edmund Davies said that he found it passing strange that a person can be convicted of murder where death results from intentionally breaking someone’s arm. The mens rea is too broad. What amounts to serious harm? in R V SAUNDERS where death resulted from a brain haemorrhage, a broken nose was defined as serious harm and therefore it fails to discriminate between defendants who intended to kill and defendants who intended serious harm.

Another aspect of the mens rea for murder that can be criticised is the fact that it fails to discriminate between different motives. Defendants such as COCKER who performed euthanasia and MARTIN who used excessive force in self-defence are found guilty of the same offence as HUNTLEY and BRADLEY who both killed children. The mandatory life sentence bestowed upon all these defendants initially seems to exasperate the problem. However, a redeeming factor is that the judiciary have discretion in deciding the minimum sentence.

Another area of murder that faces criticism is the definition of death. There is a lack of a precise definition. In R V MALCHREK death occurred when the brain stem was dead and the brain could no longer function spontaneously. However, this is only case law as opposed to formal legislation. In comparable jurisdictions legislation has been passed to provide a formal definition of death which most countries have adopted for legal purposes.

Many reforms have been proposed. In English law there are two types of homicide; murder and manslaughter. the law commission proposed three…