Unit 4

Criticisms and Reform of the law on murder.

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Aims and Objectives

• Investigate and research the key criticisms of the current law on murder.

• Explain such criticisms using relevant legal authority.

• Suggest how the law could be reformed.

• Reach a conclusion on whether the current law on murder is satisfactory.

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Key Criticisms

• The structure of the law • Implied Malice: A defendant may be

convicted even where he did not intend to kill

• The difficulties in defining intention• The mandatory life sentence• Excessive force used in self defence• Other issues.•  

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1. The Structure of the law

• How have the Law Commission described the current law on murder?

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Structure

• Who are the law Commission?The Law Commission’s website sums it up nicely …

The Law Commission is the statutory independent body created by the Law Commissions Act 1965 to keep the law under review and to recommend reform where it is needed.

The aim of the Commission is to ensure that the law is: fair modern simple, and as cost-effective as possible.

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Structure• What reform does the Law

Commission suggest?

First Degree Murder: •Intention to kill (including cases of oblique intention)•Killing with intent to cause serious injury AND foreseeing a serious risk of death.

Second Degree Murder: •Killing with intent to cause really serious injury (without foresight of death)•Killing with intent to cause some injury AND foreseeing a serious risk of death

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Structure

Task:

Consolidate your knowledge on page 2 of your hand out.

Remember you must set out BOTH criticisms AND suggestions for reform

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2. Implied Malice

There has been much debate as to whether the mens rea of murder should include the intention to cause really serious injury.

1. What two cases illustrate that the current law on MR DOES include the intention to cause serious injury?

2. WHY did Lord Goddard say in R v Vickers say the MR should include implied malice?

3. Why did Lord Edmund Davies, in his dissenting judgement in R v Cunningham say the MR should NOT include implied malice?

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Implied malice

1. R v Vickers and R v Cunningham set out that the mens rea of murder can include intention to cause serious injury.

2. Lord Goddard set out this should be the case as if a person commits gbh they have to take full responsibility for the consequences.

3. However Lord Edmund Davies said there should not be a murder conviction unless there was intent to kill.

(Part of his DISSENTING judgement.)

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Implied malice

NOTE

Lord Steyn in R v Powell also set out the MR for murder for murder should not include implied malice as it results in defendants being convicted of murder when they did not intent to kill.

What do you think…?

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Implied malice

Task

Read the information in your handout on your own and annotate onto your handout any further information from your reading.

Then summarise it in your own words using the Perfect Paragraph Method... remember PEE

• List as many buzzwords as you can that relate to criticisms of murder ....

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Starter activity ....

Our aim is to identify the key reasons why the term intention is so problematic by:

• Identifying key quotes from legal academic in relation to the definition of intention.

• Setting out the problems coming from statute in relation to intention.

• Discussing how the virtual certainty debate has confused the term intention.

• Identify key proposals for reform set out by the law commission

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Aims and objectives ....

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3. Defining intention

How did the Glanville Williams describe the problems surrounding the law on murder?

“Judges decline to define it, and they appear to adjust it from one case to another.”

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Defining intention

What did CMV Clarkson say on the matter?

“This lack of definition and

certainty is highly undesirable and simply invites

prejudice, discrimination and

abuse”

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Defining intention

What does s.8 CJA 1967 say about intention?

It is a matter to be decided by the jury on all the evidence as is proper in the circumstances.

(paraphrased)

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Defining intention

S.8 and the uncertainty surrounding the law on intention has lead to what is now known as the virtual certainty debate!

What are our key cases on the virtual certainty test?

Research: What cases that came before Nedrick also discussed the meaning of virtually certainty?(you need to know the names of these!)

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Current law on intentio

n

=

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Defining intention

The Law Commission in their report Legislating the Criminal Code: Offences Against the Person and General principles (1993) suggested that it be defined as:

[A] person acts....'intentionally' with respect to a result when:(i) it is his purpose to cause it; or(ii) although it is not his purpose to cause that 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.

Q -What would be the effect of this definition?

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Defining intention

A- Probably very little!!!

(i)Would simply be direct intent

(ii)Would be oblique intent

So what would be the point?Is it in fact possible to come up with a perfect definition of intention?

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4. Mandatory Life sentence

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4. Mandatory life sentence

It is often argued that the mandatory life sentence gives the judge little discretion.

But is this correct?

St Brendan’s sum highlights the two problems with this sentence.

What does it set out?

Mandatory life sentence

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On one hand ... On the other hand ...

The mandatory life sentence is inherently unfair, even with the judge's power to set the minimum term. Some murderers (such as terrorists, contract killers and sadistic child-killers) may deserve to be imprisoned for life, but those who perform euthanasia (Cocker) or use excessive force in self-defence (Martin) deserve much less.

Alternatively, the mandatory life sentence is inadequate, because most murderers are released after serving only 20-30 years. Many people think murderers should be given a "whole life" sentence, or should forfeit their own lives and suffer death as retribution for the life they have taken.

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Mandatory life sentence

Using your notes from the textbook set out what reforms have been suggested?

The House of Lords select committee on

Murder and Manslaughter (1988 – 1989) set out that the sentence should be

abolished.

The Law Commission set out that for the

proposed degree system only first degree murder

should carry the sentence.

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5. No defence where excessive force is used.

Where a D uses self defence but misjudges the amount of force needed the defence of self defence will fail.

Is this good or bad do you think?

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No defence where excessive force is used.

The House of Lords select committee on Murder and Life Imprisonment suggested there should be a defence where a D uses excessive force while believing it to be reasonable.

What two cases did this defence fail in?

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6. Other criticisms

Task

•Research three other criticisms of the law on murder – St Brendan’s is good for this!

•Remember to use legal authority to support your answer.

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6. Other criticisms

• Definition of death – Airedale NHS Trust v Bland

•Definition of human being – AG ref no.3 of 1994

•Double transfer of malice – AG Ref no.3 of 1994

•The distinction between murder and manslaughter- It is argued this should be one offence as the outcome is the same and instead the D’s state of mind should just be considered in sentencing.

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Conclusion

• In these essays it is very important that you reach a conclusion that fully answers the question asked.

•So, when writing your conclusion, read over the question again and pull all your work together in a paragraph that fully answers the question.

•Task: Complete two practice concluding paragraphs on page 11 of your booklet.