Introduction

• several aspects have been criticised
• argued by some that the law is in need of updating and clarification
• Law Commission’s 2006 report Murder, Manslaughter and Infanticide: .. law governing homicide in England and Wales is a rickety structure set upon shaky foundations.. this state of affairs should not continue...

Intention

• concept that is involved in all specific intent offences but its meaning lacks clarity

  Moloney [1985]

  • Lord Bridge: .. the judge should avoid any elaboration or paraphrase of what is meant by intent and leave it to the jury’s good sense to decide whether the accused acted with the necessary intent...
• attempt to codify the meaning of intention

  Criminal Justice Act 1967

  • S8: A court or jury, in determining whether a person has committed an offence,-
  • S8 (a) shall not be bound in law to infer that he intended or foresaw a result of his actions by reason only of its being a natural and probable consequence of those actions; but
  • S8 (b) shall decide whether he did intend or foresee that result by reference to all the evidence, drawing such inferences from the evidence as appear proper in the circumstances..

Foresight of consequences

• explanation of the effect of foresight of consequences has been attempted in many cases but remains confusing

  Moloney [1985]

  • foresight of consequences was not intention, only evidence from which intention could be inferred

  Woollin (1998)

  • House of Lords: intention could be found from foresight of consequences

  Matthews and Alleyne (2003)

  • Court of Appeal: little difference between rule of evidence and one of substantive law
• unclear whether there is a substantive rule of criminal law that foresight is intention
• or if only a rule of evidence that intention can be found from foresight of consequences
• unclear whether the distinction is of importance

Serious harm rule

• debate over fairness
• should a D who intends to cause serious harm but causes V’s death be guilty of murder
• unfair as no distinction between cases where D intends serious harm or where D intends to kill

  Hancock and Shankland (1986)

  • Ds were miners on strike, to stop others from going to work Ds pushed concrete block from a bridge onto the road, V a taxi driver, was driving a worker to the mine, block hit his vehicle, V died
  • Ds argued they only intended to block road, Ds were convicted of murder
  • House of Lords substituted for manslaughter, held the degree of probability of death or injury was of paramount importance
• Law Commission’s 2006 report Murder, Manslaughter and Infanticide: offence of murder is too wide
• also highlighted Homicide Act 1957 intended that a killing would only amount to murder, if D realised death was a possible consequence of his conduct
• been argued that mens rea for murder should be restricted to an intention to kill
• arguments have received judicial support

  Cunningham (1982)

  • Lord Edmund Davies: .. I find it passing strange that a person can be convicted of murder if death results from, say, his intentional breaking of another’s arm..an action which, while undoubtedly involving the infliction of ‘really serious harm’ and, as such, calling for severe punishment, would in most cases be unlikely to kill...
• judiciary not created precedent through case law, as many feel it is a matter for Parliament

Self defence

• the use self defence as a defence to murder is defined in statute

  Criminal Law Act 1967

  • S3: .. A person may use such force as is reasonable in the circumstances...
• a person may use reasonable force in self defence or to prevent a crime being committed
• what is considered reasonable depends on how D viewed the situation
• D who acts in self defence or in order to prevent crime can have a complete defence, so is innocent of the charge
• if the use of force is considered disproportionate D will be found guilty

  Martin [2002]

  • D shot intruders at his home, V1 died and V2 was seriously injured. D heard Vs and feared violence
  • D’s appeal on ground of self defence was rejected, as he was found to use unreasonable force
  • court reduced conviction to manslaughter, on basis of diminished responsibility, as D suffered from a paranoid personality disorder

  Clegg (1995)

  • D a soldier at a checkpoint shot at a stolen car which came towards him at speed, V a woman in the back seat died due to D’s final shot
  • evidence proved this shot had been fired once the car had passed the checkpoint, so no argument for self defence
  • D convicted of murder and this was upheld on appeal
• subjective nature of this rule has lead criticism

Mandatory life sentence

• life sentences for murder are required by statute

  Murder (Abolition of the Death Penalty) Act 1965

  • S1: . .. a person convicted of murder shall be sentenced to imprisonment for life...
• rationale is to impose the highest punishment on most serious crime
• a tariff to appease those who opposed the abolition of the death sentence
• judge has no discretion in sentence, for those over 18 yr old
• for 10 – 17 yr olds the sentence must be detained at Her Majesty’s pleasure, meaning indefinitely and until deemed safe to return to society
• always a minimum number of years to be served, before application for release on licence can be made
• inflexible approach does not allow sentences to reflect circumstances of individual case
• argued although murder is clearly a serious crime, there are degrees of seriousness within killings that are not recognised in sentences

Proposals for reform