murder/ intention essay Q Flashcards
Murder is a common law crime with a definition stemming from what
17th century Coke- although malice aforethought has been replaced by intention
What did the homicide act abolish?
Constructive malice but retired malice express or implied (Vickers confirmed in Cunningham)
Case of constructive malice
Beard, D accidently suffocated a girl in the course of rape. The rule worked that his intention ro rape the girl was sufficient to make out the offence of murder, without any need to further prove intention.
what is the rationale for the GBH rule
the outcome of intentionally inflicting serious harm can be so unpredictable that anyone who is prepared to act so wickedly has little complaint if where death results he is punishes as severley as the D who intended to kill - Edmund Davies (Cunningham)
Where is Edmund Davies argument weekend
where for example D breaks an arm, D has every reason to think that V will live
Who can change the GBH rule
parl
why has the GBH also been criticised
breach of the correspondence principle- a person convicted of a higher crime than contemplated Ashworth and Horder in the principles of Criminal law
Where was further judicial dissatisfaction by Lord Mustill
Ag Ref (no. 3) argued the GBH rule is an outcropping of old law from which the rational has weathered away, it exemplifies no principle which can be applied to a new situation
Why did Powell criticise the GBH rule
it results in D being classified as murdered who are not in truth murderers. It results in the imposition of the mandatory life sentence when neither justice nor the needs of society require for the classification
What did the Law Com propose to reform murder?
Draft criminal code 2 tier system for muder
What is first degree murder
intentional killings and causing gBH with awareness that a serious risk death may result this would result in the imposition of mandatory life sentence. Therefore intent to cause serious injury should suffice where he was aware that he might cause death
What would-be second degree murder
an intent to cause GBH which results in death. This is where D is reckless or indifferent as to whether or not D will be killed, includes cases of intent to cause GBH with intent to cause injury/fear/risk of injury where D was aware of a risk of death
What is the aim of the Law coms 2 tiered system
aim to create a ladder of offences to reflect degree of culpability, greater transparency and match crimes more closely to the sentence imposed. Therefore, aims to solve cases in the current system which are felt to be inconclusive e.g. should breaking a toe result in death
Is the proposed divining line between 1st and 2nd degree murder satisfactory?
It is too complex to be understood by jurors? 1st degree combines GBH rule with an elect of recklessness as to death, and would capture the torture and some very bad cases of arson pf an occupied dwelling where intent can be proved- but not where GBH is foreseen as probable rather than intended therefore cases like Hyam and Nedrick would be at worst second degree
What is the public view to the GBH rule
although the public seem to favour the use of the GBH rule, surveys indicate it is not well understood and when explained it is not actually supported
What is the risk of keeping the GBH rule with jurors
Some practitioners even suggest that juries may do ‘justice’ by refusing to convict of GBH-murder even where the evidence supports it (cf the comments of Lord Goff in the LQR article that the jury in the ‘glassing’ case convicted only of manslaughter, a view echoed by Paul Bogan QC giving evidence to the Select Committee).
What did the Minister suggest about narrowing the situations in which a mandatory life sentence could be imposed
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.
Why are the gov reluctant to legislate for reform
fears that reform would be unpopular
Would wicked recklessness be better discussed by Lord Goff in the LQR what is it
wicked recklessness can amount to the MR- is the idea that the MR in mirder needs to express an attitude beyond foreseeability and should be a sate of mind which is as wicked and depraved as to the state of mind as a deliberate killer
Under wicked recklessness would glassing where D does not anticipate death fall into this category?
under the current law this would be murder under the GBH if V was to die. However, this would not be murder under wicked recklessness
Under the two tired system what would recklessness be?
If the two-tier system were adopted the reform such glassing would become second-tier homicide. But there would also be some cases within the second tier that might satisfy the Scottish test for ‘wicked recklessness’ (eg a house fire where D intends to cause fear rather than injury).
