MURDER, LOSS OF CONTROL AND DIMINISHED RESPONSIBILITY evaluation LAW 03

  • Created by: abic1
  • Created on: 27-02-18 20:43

Despite some recent reforms, there are still criticisms to be made of the current law on murder and voluntary manslaughter. Consider relevant criticisms of that law, and suggest any reforms that may be appropriate. (25 marks)

There is no statutory definition of murder just common law, yet it is the most serious offence surely it deserves legislation by Parliament.

One criticism is the mandatory life sentence.

If the defendant is aged 18 or over, and is convicted of murder, the judge has to pass a sentence of life imprisonment. The judge has no discretion in what sentence to impose; hence why this is known as a mandatory sentence. The judge cannot give a different sentence even if they feel that the defendant is not as blameworthy as a deliberate killer. For offenders aged 10-17 who are found guilty of murder, the judge has to order that they be detained at Her Majesty’s Pleasure.  

For other offences (including attempted murder) the judge can decide the most appropriate sentence for the offence and the offender. This makes it possible for a judge to give just a community sentence where the circumstances justify it. GOTTS (1992).

The mandatory life sentence for murder is why the HOMICIDE ACT 1957 set out the special defences of diminished responsibility & provocation which would reduce the charge to manslaughter. This allows the judge flexibility when they are passing the sentence.

REFORM: If the mandatory life sentence was abolished this would mean that the partial defences could be abolished in favour of judicial discretion when sentencing

A second criticism is if the defendant has no intention to kill.

The law seems to have no power to discriminate between degrees of blameworthiness. 

Should a person who sees GBH as a virtually certain consequence (definition of intention in NEDRICK oblique intention) be convicted of the same offence as someone who wants to kill?

The mens rea for murder is ‘intention to kill or cause GBH.’ Either intention will suffice, meaning that someone could be guilty of murder even though they did not intend to kill. In some of these cases the defendant may not even realise that death could occur. However, because of the mens rea, they would be just as guilty of murder as a different defendant who deliberately set out to kill their victim.

REFORM: The rule has been questioned by several judges notably in HYAM who believed that the mens rea for murder should simply be “INTENTION TO KILL” on the grounds that the term murder should be reserved for the most blameworthy type of behaviour.

In CUNNINGHAM (1981) where this point was considered by the House of Lords, Lord Edmund Davies stated that he thought the mens rea for murder should be limited to an intention to kill. 

However, he thought that this had to be done by Parliament rather than by the judges changing the law through decisions in cases

A final criticism is that the defence of duress is not applicable for murder.

Duress…

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MURDER, LOSS OF CONTROL AND DIMINISHED RESPONSIBILITY evaluation LAW 03

  • Created by: abic1
  • Created on: 27-02-18 20:43

Despite some recent reforms, there are still criticisms to be made of the current law on murder and voluntary manslaughter. Consider relevant criticisms of that law, and suggest any reforms that may be appropriate. (25 marks)

There is no statutory definition of murder just common law, yet it is the most serious offence surely it deserves legislation by Parliament.

One criticism is the mandatory life sentence.

If the defendant is aged 18 or over, and is convicted of murder, the judge has to pass a sentence of life imprisonment. The judge has no discretion in what sentence to impose; hence why this is known as a mandatory sentence. The judge cannot give a different sentence even if they feel that the defendant is not as blameworthy as a deliberate killer. For offenders aged 10-17 who are found guilty of murder, the judge has to order that they be detained at Her Majesty’s Pleasure.  

For other offences (including attempted murder) the judge can decide the most appropriate sentence for the offence and the offender. This makes it possible for a judge to give just a community sentence where the circumstances justify it. GOTTS (1992).

The mandatory life sentence for murder is why the HOMICIDE ACT 1957 set out the special defences of diminished responsibility & provocation which would reduce the charge to manslaughter. This allows the judge flexibility when they are passing the sentence.

REFORM: If the mandatory life sentence was abolished this would mean that the partial defences could be abolished in favour of judicial discretion when sentencing

A second criticism is if the defendant has no intention to kill.

The law seems to have no power to discriminate between degrees of blameworthiness. 

Should a person who sees GBH as a virtually certain consequence (definition of intention in NEDRICK oblique intention) be convicted of the same offence as someone who wants to kill?

The mens rea for murder is ‘intention to kill or cause GBH.’ Either intention will suffice, meaning that someone could be guilty of murder even though they did not intend to kill. In some of these cases the defendant may not even realise that death could occur. However, because of the mens rea, they would be just as guilty of murder as a different defendant who deliberately set out to kill their victim.

REFORM: The rule has been questioned by several judges notably in HYAM who believed that the mens rea for murder should simply be “INTENTION TO KILL” on the grounds that the term murder should be reserved for the most blameworthy type of behaviour.

In CUNNINGHAM (1981) where this point was considered by the House of Lords, Lord Edmund Davies stated that he thought the mens rea for murder should be limited to an intention to kill. 

However, he thought that this had to be done by Parliament rather than by the judges changing the law through decisions in cases

A final criticism is that the defence of duress is not applicable for murder.

Duress…

Comments

No comments have yet been made