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Criminal | Offences Against The Person

Unlawful Killing: Evaluation & Reform

Model Answer | A Level

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Evaluate the current law on murder and voluntary manslaughter

Several aspects of the law in relation to unlawful killing have been criticised. It has been argued by some that the law is need of updating and clarification. In the Law Commission's 2006 report Murder, Manslaughter and Infanticide it stated: .. law governing homicide in England and Wales is a rickety structure set upon shaky foundations.. this state of affairs should not continue....


Intention is a concept that is involved in all specific intent offences but its meaning lacks clarity.

Lord Bridge: .. the judge should avoid any elaboration or paraphrase of what is meant by intent and leave it to the jury’s good sense to decide whether the accused acted with the necessary intent... (Moloney [1985]).

Despite an attempt to codify the meaning of intention in Criminal Justice Act 1967 the law remains unclear.

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 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....

Self defence

The use self defence as a defence to murder is defined in statute, S3 of Criminal Law Act 1967 states: .. A person may use such force as is reasonable in the circumstances....

A person may use reasonable force in self defence or to prevent a crime being committed, what is considered reasonable depends on how the defendant viewed the situation. The subjective nature of this rule has lead to much criticism.

In Martin [2002], the defendant shot intruders at his home, one died and the other was seriously injured. The defendant’s appeal on ground of self defence was rejected, as he was found to use unreasonable force. On appeal, the court reduced conviction to manslaughter, on basis of diminished responsibility, as defendant suffered from a paranoid personality.

In Clegg (1995), a soldier at a checkpoint shot at a stolen car which came towards him at speed and killed the victim who sat in the back seat. Evidence proved the fatal shot had been fired once the car had passed the checkpoint, so there was no argument for self defence. The defendant’s conviction for murder was upheld on appeal.

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.

Mandatory life sentence

S1 of the Murder (Abolition of the Death Penalty) Act 1965 states: .. a person convicted of murder shall be sentenced to imprisonment for life....

The rationale is to impose the highest punishment on most serious crime. It has also been argued the tariff was set to appease those who opposed the abolition of the death sentence.

It means a judge has no discretion in sentence, for those over 18 yr old. There will always be a minimum number of years to be served, before application for release on licence can be made.

This inflexible approach does not allow sentences to reflect circumstances of individual case and it has been argued although murder is clearly a serious crime, there are degrees of seriousness within killings that are not recognised in sentences.

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.

Voluntary manslaughter

Voluntary manslaughter has been considered in need of reform and the Coroners and Justice Act 2009 CJA 2009 reformed parts of Homicide Act 1957 (HA 1957).

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.

Suggestions for reform

Despite recent reforms concerns still persist.

Some to argue that loss of control defence is too restrictive. The Law Commission have proposed removing the loss of control criteria completely. Highlighting cases where defendants are in an abusive relationship and may kill from a combination of emotions, not necessarily a loss of control.

It has also been argued that it is unfair sexual infidelity is excluded as a qualifying trigger. The common law provocation defence allowing sexual infidelity grew out of prevalence of such cases. It has been put forward that many people would lose control after finding out about partner having an affair.

Others argue that because fear of serious violence must have lead to loss of control it is too restrictive.

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