Evaluation of the law of Murder Lo to evaluate the law on murder and suggestions for reform

The Law Commission’s report 2006 Murder, manslaughter & Infanticide “The law is a rickety structure set upon shaky foundations….some rules are analtered since the 17th Century… other rules are uncertain because they are so frequently changed there is no clarity” 5 key problems Bit by bit development through cases so not coherent. Defendant can be convicted of murder although they only intended serious harm There is no defence at all if excessive force is used in self defence. The defence of duress is not available for murder The mandatory life-sentence and the sentencing guidelines do not allow differentiation for the above situations.

Bit by bit development There is no ‘murder act’ to make the offence clear to the public. Intention has been the subject of a great deal of fluctuation Indirect intention cases Moloney 1985 Hancock and Shankland 1985 Nedrick 1986 Woollin 1998 Matthews and Alleyne 2003 – confirms Woollin – the jury decide whether ‘virtual certainty is intention Clarkson and Keating* point out that this situation is ‘undesirable.’ It invites ‘prejudice, discrimination and abuse.’ If we were to adopt a statutory definition or adopt the Woollin guidelines as a firm definition, this problem would be remedied. *Clarkson and Keating: Criminal Law: Text and Materials 8th ed

Serious harm rule – (GBH) The Law Commission point out that the Homicide Act (which deals with manslaughter) shows that Parliament does not intend those lacking INTENTION TO KILL to have liability for murder. (Vickers) They give the example of a punch to the face with intent to break Vs nose. If V falls against a kerb and dies, D may be liable for murder. Most people would agree that a life sentence is disproportionate. Judges have also agreed that the mens rea for murder needs reform (Lord Edmund in 1981 said that it was a matter for Parliament as the existing rule has been in place for over 200 years)

No defence when excessive force is used in self defence Crime and Courts Act 2013 tried to tackle this by giving ‘householders’ a greater degree of protection. Now only guilty if their actions are “grossly disproportionate” Still unclear. If a killing is done in self defence it is normally accepted that there has been no offence. However where the force is disproportionate, there is no degree of defence Only possible charge is murder and only possible sentence is life. Clegg (1995) a soldier, amongst others, fired into the back of a car which failed to stop at a checkpoint during the NI troubles. He killed a passenger. Martin (Anthony) 2002 A farmer who had suffered many break-ins at his farm, disturbed burglars in his house and fired 3 shots in the dark. He killed a 16 year old. There was a high profile campaign to clear him of murder but he was convicted as the force was excessive.

No defence of ‘duress’ Duress is where the defendant is threatened with death or serious injury to take part in an offence. Is a defence to almost all crimes but not murder (Howe and Bannister 1987) This includes ‘accomplice to murder’. The Law Commission points out that this could make a hijacked car-driver an accomplice to murder. Law commission proposes duress should be a complete defence to murder, but with a burden of proof on the defendant.

Mandatory life sentence Can seem contradictory Gotts (1992) Stepfather threatened a teenaged boy with death unless he stabbed his mother. He stabbed her. She survived and he was charged with attempted murder. Given a community sentence. Had she died he would have HAD to be given a life sentence. Law commission proposes First degree murder for those with premeditation and intention to kill Second degree murder for indirect intention cases and intention to cause GBH. This second offence would have discretionary sentences – judge can decide.