1. Evaluation of Murder and Voluntary Manslaughter

2. Evaluation of Murder
Main areas of the law of murder considered to be in need of change or clarification are:
Intent
Mandatory life sentence

3. Intent – where prime intent is not to kill
Maloney – Lord Bridge said that in the great majority of cases it would be enough for jury to consider whether the prosecution has satisfied them that D had intended a particular consequence
But establishing MR in cases where the prime intent was not to kill will inevitably cause problems – what did D intend? What did he foresee might happen as a result of his act? Only D can possibly know what was in his mind at the time. In some cases even D might not have known

4. Intent to cause serious bodily harm
A person who intends to cause serious bodily harm and actually causes his victim’s death is guilty of murder
Should a D whose only intention is to cause serious bodily harm be as guilty of murder as one who deliberately sets out to kill?
What about a D whose main intention isn’t even to cause serious bodily harm?
In Hancock and Shankland, Ds argued their intention had been to block the road when they threw the concrete slab from the bridge

5. Suggested Reform
Often been suggested that law on murder be codified so that it is included in new legislation
Draft Criminal Code produced in 1989 proposed this definition of the intention for murder:
Intending to cause death
Intending to cause serious personal harm and being aware that he may cause death
D would only be found guilty if jury was sure that D was aware his action could cause death
But no attempt has been made to codify the law in this way

6. Intent – Foresight of Consequences
Has been a confusing situation in defining foresight of consequences
In Woolin – held that foresight of consequences amounts to intention
In Matthews and Alleyne – held that foresight of consequences is a rule of evidence so jury is entitled to find intention but is not obliged to do so

7. Suggested Reform
Law Commission is its report – Offences Against the Person and General Principles (1993) proposed the word intentionally should be defined as:
It is his purpose to cause the result; or
Although it is not his intention to cause the result, he knows that it would occur in the ordinary course of events if he were to succeed in his purpose of causing some other result
This would clarify the position on foresight of consequences and intent

8. Criticism of Implied Malice
Vickers confirmed that intention to cause GHB amounts to intention for murder
Grievous is interpreted as “serious harm that does not have to be life threatening”
Cheshire – victim died of medical complications following the initial wound which was not in itself life threatening.
Murder conviction leads to mandatory life sentence and arguably this should be reserved solely for those who intend to kill
Implied malice rule has been criticised by many judges and legal writers as it is argued it extends the definition of murder too far – it is hard to justify because the fault element (intention to cause GBH) does not correspond to the consequences (death of victim)
No premeditation required for murder – intent to kill can arise in the heat of the moment

9. Mandatory Life Sentence
Murder (Abolition of the Death Penalty) Act 1965
Reasoning – murder is generally held to be the most dreadful of crimes and deserves the maximum sentence permitted by law
Also an element of appeasing those who opposed the abolition of the death penalty
Applies to any person over the age of 18
When passing the sentence judge must decide on the tariff – length of time D must serve in prison as a minimum before being considered for release
Length of tariff depends on particular factors of the crime – e.g. whether it was racially motivated or had a sexual element
Once D has served minimum time under the tariff he may be released but under licence which means he can be made to return to prison if he doesn’t comply with the terms of his release – so sentence remains even when D is no longer in prison
In some cases, judge can order a whole of life sentence – D will never be released
Person between 10 and 17 is “detained at Her Majesty’s pleasure” – indefinitely until such a time as it is deemed safe to return him to society

10. Criticisms of Mandatory Life Sentence
No flexibility for judge to vary sentence according to seriousness of the killing:
Murders cover varying degrees of seriousness – e.g. cold-blooded serial killers such as Sutcliffe or the Wests, or those who kill from motives of compassion (mercy killers), or those like Anthony Martin who overstep the limits of reasonable force in self-defence
In order to avoid the Mandatory Life Sentence, inappropriate verdicts of manslaughter may be returned – e.g. in cases of “mercy killings” where defence of diminished responsibility has been accepted in the flimsiest of evidence
If life imprisonment does not usually mean for life then why call it ife imprisonment and insist on it being passed?

11. Suggested Reform
Abolish mandatory life sentence and make it discretionary – other crimes like manslaughter, rape, wounding with intent, attempted murder all have a maximum of life imprisonment but it is discretionary
Judge would have the flexibility to impose life (meaning for life) for the most serious murders, and for other killings could impose a term of years reflecting their seriousness
Different degrees of murder could be introduced, as in the USA
Most serious murders would attract mandatory life sentence and less serious ones would attract discretionary life sentences

12. Evaluation of Voluntary Manslaughter – Loss of Control
Coroners and Justice Act 2009 abolished the much criticised defence of provocation and replaced it with the defence of loss of control
Requires D to prove loss of control from a qualifying trigger
Main criticism of this new defence:
Fear of serious violence
Things done or said

13. Fear of Serious Violence
First qualifying trigger of “fear of serious violence” attempts to address the problem faced by women who kill their partners after suffering abuse by them
Under law of provocation, had to be a sudden and temporary loss of control – but women are usually physically weaker than men and less likely to react straight away when attacked by a violent partner
In Ahluwalia D waited until husband was asleep and defence of provocation would not have been available to her
Removal of suddenness requirement is a positive change as is the recognition that killing through fear is as justified as killing through anger
But – still a requirement that to lose self-control based on fear, and this may be difficult to prove as people do not typically lose self-control when affraid

14. Things Done or Said
Criticism of defence of provocation was that almost any words or conduct could be considered to have provoked D to kill
Qualifying triggers in defence of loss of control prevent situations such as in Doughty where a crying baby was held to amount to provocation
S.55 Coroners and Justice Act 2009 applies if D’s loss of control was attributable to things said or done which constituted circumstances of an extremely grave character and caused D to have a justifiable sense of being seriously wronged. But this does not include sexual infidelity
Parliament excluded sexual infidelity to prevent situations where men were provided with an excuse for killing an unfaithful partner and being treated more leniently – killing an unfaithful partner would always be classed as murder
But – defining what is meant by sexual infidelity is problematic
Clinton – allowed the defence to be put to the jury as sexual infidelity was only part of the reason for D’s loss of control – this precedent dilutes the provision as in many cases the sexual infidelity is likely to be part of the context rather than the only factor so there are questions as to whether the judges really followed the intentions of Parliament in this case
Also the argument that sexual infidelity is one of the most likely causes for someone losing their self-control and therefore should not have been excluded in the first place

15. Suggested Reform for Loss of Control
Law Commission suggests - remove the need for loss of self-control in relation to fear of serious violence – to protect abused women more adequately
Sexual infidelity exception may need to be removed or revised in light of the decision in Clinton
Some argue the 2nd trigger should be abolished altogether as there can be no excuse for killing in anger
In New Zealand the defence of provocation was abolished

16. Evaluation of Voluntary Manslaughter – Diminished Responsibility
Original definition of diminished responsibility under S.2 Homicide Act (before it was updated by Coroners and Justice Act 2009) used vague terminology which did not fit with medical terminology
There was also little guidance for juries as to when D’s mental responsibility was substantially impaired – gave a wide scope for juries to make their decision and led to arguments that the defence was becoming too easy to plead
But – the fact that the law was open to interpretation did allow a defence to women suffering from “battered women’s syndrome” and in mercy killing cases where D could argue they had become depressed living with a suicidal or terminally ill relative
Changes arising from Coroners and Justice Act 2009
“Abnormality of mental functioning” from a recognised medical condition – reflects the need for modern terminology and proof of the defence to be based on medical diagnosis
“Substantial impairment” now more specific – mental abnormality must substantially impair D’s mental responsibility to understand the nature of his conduct, form a rational judgement, or exercise control
Also a causal link so D’s condition must provide an explanation for the killing

17. Evaluation
New defence deals with the criticisms and provides more clarity and modern terminology
But – likely to be interpreted narrowly and some deserving cases, e.g. mercy killings, may not be able to use the defence – people in these situations may be reacting to extremely stressful situations but may not have a recognised medical condition – vagueness of old law allowed for some flexibility but now there is a danger of some injustices
Overlap between diminished responsibility and insanity – insanity requires that D must be suffering from a disease of the mind that causes a defect of reason such that D does not know the nature and quality of his act. If D raises the defence of diminished responsibility, prosecution may argue for insanity so there is a special verdict where D is committed to a mental institution

18. Suggested Reform
Law Commission suggested to include immaturity as part of the definition which would allow children a defence on the basis that there should be some consideration that if a 10 year old kills, there could be some issues with their maturity that could reduce murder to voluntary manslaughter
Government has not adopted this so there is a position where an adult who has the mental age of a child will be able to plead the defence but a child will not be able to because their immaturity is considered normal
Law Commission 2006 report suggests that voluntary manslaughter should be reclassified as “second degree murder” and still attract a discretionary life sentence as it does now. Reclassifying VM as murder would recognise the fact that the killing was intentional rather than accidental

19. Reclassification of Homicide – Law Commission Report 2006
First degree murder (mandatory life sentence):
Intentional killing
Killing with intent to cause serious injury, in the awareness there is a serious risk of causing death
Second degree murder (discretionary life sentence):
Killing with intent to do serious injury
Killing with intent to cause some injury or fear of risk of injury, in the awareness that there is a serious risk of causing death
Killing with the intent for first degree murder but where a defence of loss of control, diminished responsibility or suicide pact succeeds
Manslaughter (discretionary life sentence) – cover the different types of involuntary manslaughter that currently exists
Law Commission suggests that this three-tier structure of homicide would “give the jury in homicide trials greater power to reflect in their verdict the extent to which the offender was at fault in killing
No action has been taken on these proposals