Evaluation of Murder/ Manslaughter

Question 1

P1

Answer 1

• Law on Murder is both inaccurate and unfair.

- Law Commission: “Rickety structure built upon a shake foundation” aka various elements could be improved.

Question 2

P1 example

“Aforethought”

Answer 2

Law on murder is outdated - 17th Century language doesn’t provide a clear meaning as demonstrated by “aforethought” - suggests premeditation is required when this isn’t the case.

Question 3

P2

Implied Malice

Answer 3

• Implied malice: D may be convicted of murder by having intention to cause GBH (VICKERS) e.g D breaks V’s arm
• Law Commission: never Parliament’s intention - D is only meant to be convicted if he realised his condict may cause death.

Question 4

P2

Problem

Answer 4

Problem: D can be convicted of murder even if they didn’t intend to kill - Morally unfair: D only meant to inflict GBH, so D should get a lower sentence.

Question 5

P2

Lord Goddard, Vickers

Answer 5

On the other hand, “[D has] Killed a person with the necessary malice aforethought being implied from the fact that he intended to go grievous bodily harm… it must be shown that independently of the fact that the accused is committing another offence, that the act which caused death was done with malice aforethought as implied by law”

Indicates purpose of implied malice is to act as a deterrent and reduce situations in which people can be harmed e.g Abusive relationships.

Question 6

P2
LC Proposals
2006 Report: Murder, Manslaughter and Infanticide No 304

Answer 6

Two tiers of murder:
- 1st degree includes express malice and implied malice only when D foresees V’s death - Mandatory life sentence.

-2nd degree includes implied malice where D doesn’t foresee V’s death - Discretionary life sentence.

meaning foresight of death is paramount in deciding D’s conviction

Question 7

P2
LC Proposals
2006 Report: Murder, Manslaughter and Infanticide No 304

Adv and Dis.

Answer 7

Adv:
- Enabled D to be convicted fairly e.g D simply intends to break V’s arm and this makes him less blameworthy, so he’ll be convicted of 2nd degree murder.

-Two tier system separates express and implied malice - meaning they aren’t treated equally, making the law more just as level of blameworthiness is taken into consideration.

Dis:
- D will still be labelled as ‘murderer’

• If D had such disrespect for V well being to intend to cause GBH, they should not be treated less seriously if GBH resullts in death

Question 8

P3
Mandatory Life sentence and type of murder

Problem

Answer 8

If D is convicted, mandatory life sentence is imposed regardless of the type of murder.

Ds who acted in situations out love e.g Mercy Killings will be labelled as murderers - those that had an excuse (Either LofC or Dim. Rep) won’t

Question 9

P3

R v Inglish case example

Answer 9

D injected lethal does of heroin into her disabled son so he wouldn’t suffer anymore, will receive same harsh sentence as a serial killer e.g. Steve Wright.

Question 10

P3

Lord Mustill

Answer 10

“We must underline that the law of murder does not distinguish between murder committed for malevolent reasons and murder motivated by familial love”

Though there’s a minor discretion in choosing a tariff and the minimum term of D’s sentence, there’s a problem with the law.

Question 11

P3

LC Proposals

Answer 11

On the two tiers of murder: types of murder e.g euthanasia and mercy killing would not be classified as 2nd degree because they’ll count as express malice (intention to kill) and lead to mandatory life.

3 reasons why mercy killings should AT LEAST become a partial murder defence:

1. For a genuine mercy killer, a life ling sentence is neither necessary nor appropriate.
2. As they are not likely to re-offend, they have good intentions
3. It isn’t in the public interest to punish them harshly as they aren’t a danger to society

Question 12

P4
Defence of Duress
Problem

Answer 12

Defence of Duress cannot be used for murder as it imposes strict guidelines which don’t recognise it - GOTTS

Question 13

P4

LC and Lord Hailsham in Howe

Answer 13

LC argues it is unfair to deny duress if D’s acts were reasonable.

“The Law should not cast a cloak of protection over cowards by withdrawing protection from innocent victims”

aka it should not condemn D as a murderer if their life was threatened to force them to do the killing.

Question 14

P4

Adv and Dis for allowing defence of Duress

Answer 14

Adv:
- No distinction between threats made to D or threats made to D’s relatives e.g D’s children.

• [Not allowing it] Puts D in a positions in which he cannot win and will suffer consequences regardless i.e net profit life.

Dis:
- Morally wrong to choose one life over another, and if only choice for D to make was simple ‘ die or kill’ too many would choose the latter - the choice ‘die or spend the rest of your life in prison’ is more suitable.

• [Not allowing duress] Not a major problem as cases with duress rarely get prosecuted

Question 15

P4

LC proposals

Answer 15

Allowing duress as an absolute defence to murder if there are death threats or life threatening harm

OR

Allowing duress, at least, as a partial defence to murder, reversing burden of proof on D

Question 16

P4
LC proposals
Adv and Dis

Answer 16

Adv:
- Difficult to prove threat would have been carried out - making it hard for D to prove killing was reasonable: D will only be able to use the defence in the extreme conditions.

Dis:
- Duress claims come late in the trial - imposing burden of proof on D means he will struggle to successfully claim as time and money will have to be spent in proving defence.

• Difficult to prove threat would have been carried out, making it hard for D to prove the killing was reasonable

Question 17

P5

Diminished Responsibility and Burden of Proof

Answer 17

In Dim. Rep, burden of proof lies on D to prove (on a balance of probabilities) that defence applies - D stops D raising in unwarranted cases and wasting time.

It is also difficult for prosecution to prove beyond reasonable doubt that D wasn’t acting on Dim. Rep, especially if D plays a role of an unstable persona to convince jury - it is fairer, then, for D to prove that defence is more likely than not.

Question 18

P5

Problem

Answer 18

D has limited resources, it may then be proven difficult to get expert medical evidence.

Prosecution is funded by the state - easier for them to gather evidence against D.

Question 19

P5

Hamer

Answer 19

Argues that Prosecution could use evidence e.g planning and motive, to prove killing wasn’t caused by Dim. Rep.

Hard to fake mental illness - wouldn’t be too difficult to disprove false claims - avoiding D being at a disadvantage with burden of proof.

Question 20

P5
Butler committee Proposals

Wilson, W - Criminal Law: Doctrine and Theory

Answer 20

1. Removal of mandatory life sentence

Or

2. Burden of proof goes on prosecution to prove (beyond reasonable doubt) that D cannot use Dim. Rep as a defence

Question 21

P5
BC Proposals

Adv and Dis.

Answer 21

Adv for:
1. Defence wouldn’t have to be used anymore - enable judges flexibility to take into account the AMF into consideration when sentencing D.

Or

2. Make defence more in line with the others; provides consistency in the law; there would be an equilibrium between the defence and P.

Question 22

P5

Dennis

Answer 22

Establishes that psychiatry isn’t an exact science - has many competing views, suggesting jury cannot be ‘sure’ that D wasn’t acting on Dim. Rep - could lead to more acquittals for false claims.

Question 23

P6

S5(6)(C)

Answer 23

Sexual infidelity exclusion: “Anything that constitutes sexual infidelity must be disregarded” - Put into place by Parliament because of pressure from Feminist Groups e.g. Justice for Women

Aim: Send out a message: Law will not excuse D in any way for killing a lover, just because they have been unfaithful - To do so, would make us as a country, no better than the others e.g. Saudi Arabia where killing an adulteress is justified.

Question 24

P6

Problems

Answer 24

No definition of words ‘sexual’, ‘fidelity’ and ‘constitute’ is clear - creates inconsistency, disagreement and unfairness in the law.

E.g. Is ‘sexual’ restricted to sexual intercourse or is broader?

e.g. Which relationships include an obligation to be ‘faithful’ Is this obligation legal or moral?

e.g. V confesses to his wife he has been having an affair - she loses control and kills him.
Does this ‘constitute’ sexual infidelity? - presumably yes, so has to be disregarded. Confession, though, clearly doesn’t -

suggests the fact that the act and report have to be separated is unfair.

Good thing: Deters possible Ds in using it as an excuse to murder.

Question 25

P6

Solution R v Clinton

Answer 25

“If sexual infidelity is integral to the facts of the case” then it can be included.

Question 26

P6

Lord Judge

Answer 26

Exclusion is “artificial, unrealistic and [said it] could lead to injustice”

Indicates (using Purposive Approach) that Parliament wouldn’t presumably have wanted such injustice - therefore when S5(6)(C) creates it, should be ignored.

Question 27

P6
Clinton
Adv and Dis

Answer 27

Adv:
-Extends defence

Dis:
- Poses a risk of undermining Parliamentary Supremacy - create uncertainty in future cases and its ratio decidendi is too vague

Question 28

P7

Loss of Control defence

Answer 28

S54(4) Coroners and Justic Act 2009

“D cannot use defence if he acts on a considered desire for revenge”