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Criminal Law W111: B02 Homicide > The Need for Reform of the Law > Flashcards

The Need for Reform of the Law Flashcards

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1
Q

in which 2009 report did the Law Commission point out that there were many problems with the law on murder?

A

Murder, Manslaughter and Infanticide

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2
Q

In the 2009 report ‘Murder, Manslaughter and Infanticide ‘ what did the Law Commission point out that there were many problems with?

A

the law on murder

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3
Q

What are two general problems on the law on murder which the Law Commission identified in its 2009 report on ‘Murder, Manslaughter and Infanticide’?

A
  • Many rules have remained unaltered from the 17th century

- uncertain content from constant change

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4
Q

what are the 5 problems set out by the Law Commission in its 2009 report on ‘Murder, Manslaughter and Infanticide’?

A
  • Law has only developed bit by bit, not as a coherent whole
  • D can be convicted on murder even though he only intended serious harm
  • no defence available for excessive force in self defence
  • Defence of duress not available for murder
  • mandatory life sentences does not cover the wide variety of blameworthiness in current law of murder
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5
Q

What is one of the main areas of where the bit by bit development of courts has caused problems?

A

with the development of ‘intention’

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6
Q

Which section of which Act tried to make the law clear on the point that the bit by bit development of courts has caused problems on ‘intention’?

A

s..8 of the Criminal Justice Act 1967

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7
Q

What are the main problems in law with ? (1)

A

foresight of consequences

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8
Q

Who have tried on many occasions to explain the effect of foresight of consequences?

A

The House of Lords

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9
Q

In what case was it ruled that foresight of consequences are not intention; it was only evidence of which intention could be inferred?

A

Moloney 1985

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10
Q

What did the case of Moloney 1985 rule on the foresight of consequences?

A

that foresight of consequences was not intention, it was only evidence from which evidence could be inferred.

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11
Q

The later decision in which case did the HOL speak about intention being found from foresight of consequences making the law uncertain?

A

Woollin 1998

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12
Q

In the case of Woollin 1998 why did the HOL speak about intention being found from foresight of consequences as making the law uncertain?

A

as it is not clear whether there is a substantive rule of criminal law that foresight of consequences is intention, or if there is only a rule of evidence that intention can be found from foresight of consequences

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13
Q

What did the COA say in Matthews and Alledyne 2003 which reflects that the law on foresight of consequences is unclear?

A

they said that there was little to choose between a rule of evidence and one of substantive law.

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14
Q

What has the Law Commission in its repot ‘Murder, Manslaughter and Infanticide’ pointed out about Parliaments intentions when it passed the Homicide Act 1957?

A

that it never intended a killing to amount to murder unless D realised that his or her conduct might cause death

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15
Q

Under the present law of murder, when can a defendant be guilty?

A

if they intended to cause GBH which leads to death or murder

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16
Q

What does the Law Commission give an example of to defend death by one punch?

A

they say that most people would not describe a punch as serious harm, and therefore D should not receive a mandatory life sentence for it

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17
Q

Regarding the serious harm leading to death rule, from what case/year have judges pointed out the problem?

A

Cunningham 1981

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18
Q

What did Lord Edmund Davis from the HOL say in regards to the case of Cunningham 1981?

A

that he thought the mens rea for murder should be limited to intention to kill

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19
Q

Although Lord Edmund Davis from the HOL said in regards to the case of Cunningham 1981 that he thought the mens rea for murder should be limited to the intention to kill, what did he believe?

A

that changes to the law should only be made by Parliament

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20
Q

Why did Lord Edmund David from the HOL in the case of Cunningham 1981 believe that only Parliament should make changes to law regardless of the fact that he thought that the mens rea for murder should be limited to the intention to kill?

A

as the law had been the same for 200 years and it would therefore be wrong for judges to change such a well established law

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21
Q

When can a defendant not be guilty of murder regarding self defence or prevention of crime?

A

if D can prove that he used reasonable force in self defence or prevention of crime

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22
Q

When can D be guilty of murder when using self defence?

A

when force is necessary but D has used excessive force in the circumstances

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23
Q

What is the effect on the law of murder regarding self defence or prevention of crime called?

A

‘all or nothing’

24
Q

How is the ‘all or nothing’ effect of defence very harsh in murder cases?

A

as D is either acquitted or given a life sentences

25
Q

Why can it be seen to be wrong to either acquit or give a life sentencing regarding self defence?

A

as the only fault of D would be to use more than the reasonable force allowed, but is that not subjective, who determines this?

26
Q

Which 2 cases have highlighted the problems with no defence where excessive force is used?

A

Clegg 1995

Martin 2002

27
Q

Why have the decisions in Clegg 1995 and Martin 2002 been criticised?

A

as people believe that a person who kills where he has an honest, but unreasonable belief as to the degree of force needed is not as blameworthy as a true murderer

28
Q

What happened in the case of Clegg 1995?

A

D was a solider who shot at a car driving towards his check point while on duty. The last shot was fired while the car had already passed D. Force was excessive and so conviction of murder upheld

29
Q

D was a solider who shot at a car driving towards his check point while on duty. The last shot was fired while the car had already passed D. Force was excessive and so conviction of murder upheld
What case is this?

A

Clegg 1995

30
Q

What happened in the case of Martin 2002?

A

D shot a burglar as they were leaving the house. D found guilty of murder regardless of his paranoid personality disorder which made him believe that he was in a very dangerous situation

31
Q

D shot a burglar as they were leaving the house. D found guilty of murder regardless of his paranoid personality disorder which made him believe that he was in a very dangerous situation
What happened in this case?

A

Martin 2002

32
Q

What act allows a partial defence where D kills having lost control due to fear of violence?

A

Coroners and Justice Act 2009

33
Q

What does the Coroners and Justice Act 2009 now allow a partial defence of?

A

where D kills having lost control through fear of serious violence

34
Q

What act gives a wider defence to householders where an intruder enters their property?

A

Crime and Courts Act 2013

35
Q

What does the Crime and Courts Act 2013 allow householders to use when an intruder enters their property?

A

they can use the defence of self defence provided that the degree of force was not ‘grossly disproportionate’

36
Q

How is the defence of self defence wider for householders than for other offences under the Crime and Courts Act 2013?

A

as they are allowed to use a degree of force that is not ‘grossly disproportionate’ where most cases say that it must not be ‘disproportionate’

37
Q

In which case would the actions of D still be regarded as ‘grossly disproportionate’?

A

Martin 2002

38
Q

What is duress?

A

duress is where the defendant is threatened with death or serious injury so that he takes part in the offence

39
Q

For what offences is duress allowed as a defence?

A

almost all offences

40
Q

What example has the Law Commission given to reflect how absurd it is for duress not to be a defence to murder?

A

taxi driver has the vehicle commanded by a gunman who holds a gun to his head. The gunman says he may shoot someone. The taxi driver does as the gunman demands and the gunman goes on to shoot someone.

Under current law the taxman would be an accomplice to the killing and could be convicted of murder, receiving a mandatory life sentence

41
Q

Under this scenario…taxi driver has the vehicle commanded by a gunman who holds a gun to his head. The gunman says he may shoot someone. The taxi driver does as the gunman demands and the gunman goes on to shoot someone.

What would have happened to the taxi driver under current law?

A

would have been an accomplice to murder or convicted of murder, receiving a mandatory life sentence, the same as the gunman

42
Q

The Law Commission has proposed that duress be a complete defence to murder under what circumstances?

A

that D can prove he was threatened with death or life threatening harm and had no realistic opportunity to seek police protection

43
Q

If D is what age or over and convicted of murder, the judge has to pass a sentence of life imprisonment?

A

18 or over

44
Q

Where are defenders of murder aged 10-17 ordered to be detained?

A

at Her Majesty’s Pleasure

45
Q

What does a mandatory life sentence mean for the judge?

A

that they have no discretion has to whether they feel the defendant is blameworthy

46
Q

When can a judge decide what the most appropriate sentence is, even if this may be a community sentence?

A

on other offences such as attempted murder

47
Q

What happened in the case of Gotts 1992?

A

The father of a 16year old boy threatened to kill him unless he stabbed his mother. The boy did stab her and seriously injured her, but it did not kill her. He was convicted of attempted murder and 3 years probation. If the boy caused her death he would have been held at Her Majesty’s Pleasure.

48
Q

The father of a 16year old boy threatened to kill him unless he stabbed his mother. The boy did stab her and seriously injured her, but it did not kill her. He was convicted of attempted murder and 3 years probation. If the boy caused her death he would have been held at Her Majesty’s Pleasure.
What case is this?

A

Gotta 1992

49
Q

It is because of what type of sentences that special defences of diminished responsibility and loss of control exist?

A

mandatory life sentences for murder

50
Q

What do special defences of diminished responsibility and loss of control do?

A

they reduce the charge of murder to manslaughter

51
Q

What does the special defences of diminished responsibility and loss of control allow the judges?

A

flexibility in passing sentences which they do not have when D’s are convicted of murder

52
Q

In each case, the judge will impose a life sentence and will state what?

A

the minimum number of years the offender must serve before any application can be made for release on licence

53
Q

How have sentencing problems been aggravated?

A

by Government guidelines on the minimum sentences under the Criminal Justice Act 2003

54
Q

What case reflects the problems under the rules of the Criminal Justice Act 2003?

A

In the case of Martin 2002, D would have been given a minimum sentence of 30 years for shooting burglar with a firearm. This is the same length of time as a contract killer who is paid to deliberately kill.

55
Q

Although the Law Commission were not asked to consider sentencing, what did their proposals for making murder into a two tier offence state?

A

that the mandatory life sentence and the guidelines on minimum sentences should only apply to first degree murder.

56
Q

Why does the Law Commission believe that mandatory sentences should only apply to first degree murder?

A

in order to create a fairer sentence structure

57
Q

How was the law made uncertain in Woollin 1998 after the HOL said that intention can be found from foresight of consequences?

A

as it is not clear whether this means that foresight of consequences is intention or whether it is evidence of intention

Criminal Law W111: B02 Homicide (8 decks)

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