Foresight of consequences

An explanation of the effect of foresight of consequences has been attempted in many cases but remains confusing.

It has been found that foresight of consequences was not intention, only evidence from which intention could be inferred (Moloney [1985]).

House of Lords have ruled that intention could be found from foresight of consequences (Woollin (1998)).

Most recently the Court of Appeal have decided that there is little difference between rule of evidence and one of substantive law. (Matthews and Alleyne (2003) ).

So it is unclear whether there is a substantive rule of criminal law that foresight is intention or if only a rule of evidence that intention can be found from foresight of consequences or whether this is an important distinction.

Serious harm rule

Debate also surrounds the fact that a person who intends to cause serious bodily harm and in fact causes the victim’s death is guilty of murder. Some argue this is unfair as there is no distinction between cases where someone intends to cause serious harm and where someone intends to kill.

The Law Commission have argued that the offence of murder is too wide (Murder, Manslaughter and Infanticide). Highlighting that the Homicide Act 1957 intended that a killing would only amount to murder, if defendant realised death was a possible consequence of his conduct.

Arguments that mens rea for murder should be restricted to an intention to kill have received judicial support. Lord Edmund Davies: .. I find it passing strange that a person can be convicted of murder if death results from, say, his intentional breaking of another’s arm..an action which, while undoubtedly involving the infliction of ‘really serious harm’ and, as such, calling for severe punishment, would in most cases be unlikely to kill... (Cunningham (1982)).

However, the judiciary have declined to create such a precedent through case law. Many feel it is a matter that Parliament should address and therefore it is beyond judicial powers to make such a change.

Suggestions for reform

In a 1993 report Offences Against the Person and General Principles, the Law Commission suggested a definition for intention: .. A person acts intentionally with respect to a result when: it is his purpose to cause it or although it is not his purpose to cause it, 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....

Suggestions for reform

The Law Commission have suggested self defence could be made a partial defence, so result in a conviction for manslaughter not murder. This would allow judges discretion to pass suitable sentences.

The Government agreed there was a need to reform the self defence law. In light of public and media pressure after the Martin case, emphasis was placed on creating some protection for those who acted in self defence but it was found had used excessive force.

This lead to the introduction of the loss of control partial defence under the Coroners and Justice Act 2009 (CCJA 2009), which allows for a conviction to be reduced from murder to manslaughter, where defendant lost control due to a fear of violence.

Suggestions for reform

The Law Commission has argued for a reclassification of unlawful killing offences and has proposed dividing murder into two separate offences, first degree murder and second degree murder (Murder, Manslaughter and Infanticide).

This would address the issue of the serious harm rule and of mandatory sentences.

First degree murder would be when the defendant intended to kill or intended to cause serious harm and realised there was a serious risk of death and would carry a mandatory life sentence.

Second degree murder would apply when a defendant intended to cause serious injury but was not aware of serious risk of death and would allow for a discretionary sentence with a maximum of life imprisonment.

The Government issued a consultation paper Murder, Manslaughter and Infanticide: proposals for reform of the law in 2008 which rejected proposals for making a two tier system.

Loss of control

The CJA 2009 replaced the partial defence of provocation, with loss of control.

Some argue loss of control is wider as there is no requirement for it to be a sudden loss of control and fear of serious violence can be considered. However it can also be seen as narrower because sexual infidelity is no longer a qualifying trigger. Also things said or done must be extremely grave in nature, and have caused justifiable sense of being seriously wronged, so limits the defence.

A defendant killed his 19 day old baby. The defendant could not deal with the baby was crying constantly. His conviction for murder was quashed under provocation. However, the defendant would be unlikely to be able to prove a justifiable sense of being seriously wronged (Doughty [1986]).

Diminished responsibility

The CCJA 2009 also makes some reform to the old partial defence of diminished responsibility. It must be proved that the substantial impairment to the defendant’s mental responsibility provides an explanation for his conduct, this causal connection was introduced in CJA 2009. This may narrow the defence

It remains unclear whether changing terms such as abnormality of mental functioning replacing abnormality of mind will make much difference to the interpretation of the law.