Set out in murder manslaughter and infanticide
Number one –
Bit by bit development of individual cases is not coherent.
Problem of meaning of intention. Foresight of consequences isn’t clear. House of lords tried to on many occasions to explain effect of foresight of consequences. In Maloney, rules it wasn’t intention. In woolin the house of lords stated intention is found in foresight making it unclear. It isn’t certain if there is a substantive rule of criminal law that foreight is intention or is only rule of evidence that intention can found in foresight. Mathews and alleyne – the court of appeal said there was little to choose between the rule of evidence and one of substantive law – even more unclear, uncertain…
Number two – defendant can be convicted of murder if he only intended serious harm aka serious harm rule. Example gbh. Defendant may not realise death could occur yet he is just as guilty as an intention killer. Most would agree defendant intending to punch should not count as serious harm and not get a madatory life. The problem has occurred as far back as Cunningham nineteen eighty one where it was stated mens rea should be intention to kill.
Number three - no defence available for excessive force used. If defendant can show he used reasonable force in self defence or prevention of crime he isn’t guilty. But if the force is excessive he is guilty of murder. All of nothing effect is harsh, aquitted or guilty. He can be justified for some force but a murderer for serious. Martin and clegg. Law commission proposes use of excessive force should be a new partial defence, giving the judge discretion.
Number four – no defence of dureness available for murder. This is where the D is threatened with death or serious injury and is forced to take part in offence. Allowed for most offences but not murder. However, it would be difficult to prove the D had no alternative.
Number five – sentencing doesn’t allow sufficient differentiation between sentences. If eighteen years old he must have mandatory life. If ten to seventeen he is to be detained at her majesty’s pleasure indefinitely. The judge is allowed no discretion even if he feels the defendant isn’t blameworthy as deliberate killer. But for attempted murder he can give little as community sentence. Happened in case of Gotts where a boy who stabbed his mother under the force of his dad was given three years probation.
Law commission called murder a mess in 2004 partial defences on murder report.
Two tier offence system
First degree being intention to kill and unlawful killing with intent to cause serious injury and was aware of risk of death – mandatory life only.
Second degree being that the D intended to do serious harm but wasn’t aware there was a risk of death giving the judge discretion.