Murder

Question 1

Where did the definition of murder stem from

Answer 1

17 century lord coke

Question 2

Where was the meaning of malice aforethought settled and given modern meaning

Answer 2

Homicide act which abolished constructive malice e.g. beard where D kills in the course of a crime

Question 3

What is malice known as

Answer 3

intention express or implied Cunningham confirmed in Vickers

Question 4

What is the rational for the GBH rule

Answer 4

historic as the rule pre-dated felony murder, but also principle. The GBH rile reflects that the outcome of intentionally inlfcitying serious harm can be so unpredictable that anyone prepared to act so wickedly has little complaint where death results and he is punished as severely as someone who intends to kill- Edmund Daviesq

Question 5

Where is Edmund Davies agrument weaker?

Answer 5

In cases for example where D breaks an arm, he has ever reason to believe that V will survive - but only parl can change the rule

Question 6

What is the issue with the GBH rule

Answer 6

breach of the correspondence principle, D is liable for a greater crime than contemplated- Ashworth

Question 7

Which cases have shown judicial dissatisfaction to the GBH rile

Answer 7

Judicial dissatisfaction with the over inclusiveness of GBH -G’s Ref (No 3 of 1994) (HL, 1997); Powell (HL, 1997) and Rahman (HL, 2008)

Question 8

Judicial disatsifcation in Powell

Answer 8

Issues of fair labelling, where D is labelled a murder when in truth he is not, results in the imposition of a life sentence which does not do justice or is required by society

Question 9

Judicial dissatisfaction in AG Ref No 3

Answer 9

GBH rule is an outcropping of the old law from which the rationale has weather away examples no principle which can be applied today

Question 10

How did the LC propose to solve the issues of the GBH tile

Answer 10

2-tiered system proposed

Question 11

When did LC suggest that na intent to cause serious injury would be sufficient

Answer 11

where D was aware that he might cause death

Question 12

What is murder in the first degree

Answer 12

first degree was reserved for intentional killings, plus those involving intention to cause serious injury where D was aware of a serious risk that death might result.

Question 13

What is murder in the second degree

Answer 13

first degree was reserved for intentional killings, plus those involving intention to cause serious injury where D was aware of a serious risk that death might result.

Question 14

What does the two tiered system aim to do

Answer 14

create a ladder of offences to reflect the degree of culpably, provide greater transparency and match crimes more closely to sentence

Question 15

What else does the system aim to do

Answer 15

The proposal aims to solve cases in which the current system is felt to be over-inclusive (in some of the extreme examples given in the course of discussions, intentionally breaking a finger or toe that leads to death is theoretically murder).

Question 16

Where the proposals implemented?

Answer 16

The proposals were not implemented at the time, but more recently there has been a debate in Parliament about reviving them.

Question 17

What did Alex Chalk suggest

Answer 17

by Alex Chalk MP that the better course might be to restrict first degree murder to intentional killings only. An apparently favourable response from the then Minister led to a discussion in the Justice Select Committee in September 2016

Question 18

However what is the current view of the Justice Select Committee lead by Oliver Heald

Answer 18

stated that the reform of murder was not a priority. He considered the present law was working well and that the GBH rule reflected public opinion.

Question 19

Who proposed the argument of moral luck

Answer 19

Lord Goff: A person who stabs someone in the stomach expresses a certain mental state. To distinguish between two cases of stabbing in the stomach based solely on the result (death or GBH) would not capture anything about the D’s men rea but merely his luck.

Question 20

Do you think that intention to kill only would be too narrow

Answer 20

and would exclude some cases that ought to be murder (where a victim is deliberately tortured and kept alive for sport, but unexpectedly dies, for example).

Question 21

What might be preferable

Answer 21

Lord Goff suggested that the Scottish system under which ‘wicked recklessness’ can amount to mens rea for murder is superior to both of the current recommendations on the table in England & Wales.

Question 22

What is wicked recklessness

Answer 22

The Scottish approach captures the idea that mens rea in murder needs to express an attitude that is beyond mere foreseeability: ”a state of mind which is as wicked and depraved as the state of mind of a deliberate killer”

Question 23

Example of glassing under wicked recklessness

Answer 23

(in which a broken glass is used to cause injury without anticipating death) was used to show that under the current English law this is murder (intent to cause GBH) but not in Scottish law (no wicked recklessness).

Question 24

What would glassing be in wicked recklessness

Answer 24

If the two-tier system were adopted the reform such glassing would become second-tier homicide

Question 25

What cases would satisfy wicked recklessness but fall within second tier

Answer 25

eg a house fire where D intends to cause fear rather than injury).

Question 26

Why might the 2 tiered system be confusing for juries?

Answer 26

first tier murder combines aspects of the GBH rule with an element of recklessness as to death, and would capture the torturer case along with some very bad cases of arson of an occupied dwelling where intent can be proved – but not where GBH is foreseen as probable (even highly probable) rather than intended (so cases like Hyam and Nedrick would be at worst second-tier murder).

Question 27

Is the public opinion argument a well founded one?

Answer 27

Public opinion is generally said to be important but is not well-informed: surveys noted by the Law Com indicate that the GBH rule is not well understood and not supported by the public when it is explained to them. Some practitioners even suggest that juries may do ‘justice’ by refusing to convict of GBH-murder even where the evidence supports

Question 28

But would the public respond well to a narrowing of the grounds for a mandatory life sentence?

Answer 28

The Minister suggested that the public would not respond well to a narrowing of the ground for a mandatory life sentence, even though it is not the case that those currently convicted of murder serve a life term. Therefore, are the Gov reluctant that a reform would be unpopular