Several aspects of the law regarding murder have been criticised and it is argued by some that the law is need of updating and clarification.
The Law Commission stated in their 2006 report
Murder, Manslaughter and Infanticide that:
.. The law governing homicide in England and Wales is a rickety structure set upon shaky foundations. Some of its rules have remained unaltered since the seventeenth century, even though it has long been acknowledged that they are in dire need of reform. Other rules are of uncertain content, often because they have been constantly changed to the point that they can no longer be stated with any certainty or clarity... certain piecemeal reforms effected by Parliament, although valuable at the time, are now beginning to show their age or have been overtaken by other legal changes and, yet, have been left unreformed... This state of affairs should not continue....
Intention is a concept that is involved in all specific intent offences but its meaning can lack clarity.
.. When directing a jury on the mental element necessary in a crime of specific intent, 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....
An attempt to codify the meaning of
intentionwas made in the Criminal Justice Act 1967 (CJA 1967).
Criminal Justice Act 1967
A court or jury, in determining whether a person has committed an offence,-.
S8 (a) shall not be bound in law to infer that he intended or foresaw a result of his actions by reason only of its being a natural and probable consequence of those actions; but.
S8 (b) shall decide whether he did intend or foresee that result by reference to all the evidence, drawing such inferences from the evidence as appear proper in the circumstances..
Foresight of consequences
An explanation of the effect of foresight of consequences has been attempted in many cases but remains an area of confusion.
It was ruled foresight of consequences was not intention, it was only evidence from which a jury could
House of Lords held that a jury could
findintention from foresight of consequences. This decision has created uncertainty.
Matthews and Alleyne (2003)
Court of Appeal said that there was very little difference between a rule of evidence and one of substantive law.
So it is unclear whether there is a substantive rule of criminal law that foresight is intention or if there is only a rule of evidence that intention can be found from foresight of consequences. Additionally, it remains unclear whether the distinction is of importance.
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.
Hancock and Shankland (1986)
Defendants were miners on strike. In an attempt to prevent others from going to work they pushed a concrete block from a bridge onto the road below to block an access route. The victim, a taxi driver, was driving a worker to the mine when the block hit his vehicle.
House of Lords substituted the conviction for one of manslaughter and accepted the defendant’s argument their intention was to block the road only.
Law Commission, in the 2006 report
Murder, Manslaughter and Infanticide, stated the offence of murder is too wide. The report highlighted that when the Homicide Act 1957 was passed it was intended that a killing would only amount to murder if the defendant realised death was a possible consequence of his conduct.
It has been argued that the mens rea for murder should be restricted to an intention to kill.
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. And yet, for the lesser offence of attempted murder, nothing less than an intent to kill will suffice. But I recognise the force of the contrary view that the outcome of intentionally inflicting serious harm can be so unpredictable that anyone prepared to act so wickedly has little ground for complaint if, where death results, he is convicted and punished as severely as one who intended to kill....
Despite comments such as this, 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.
Criminal Law Act 1967
.. 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. Therefore a defendant who acts in self defence or in order to prevent crime can have a complete defence, so is innocent of the charge of murder. However, if the use of force is considered to be disproportionate a defendant will be found guilty of murder. The subjective nature of this rule has lead to it being criticised.
Defendant was a soldier at a checkpoint and shot at a stolen car which came towards him at speed. Defendant killed the victim, a woman in the back seat, with his final shot. Evidence proved this shot had been fired once the car had passed the checkpoint, so there was no argument for self defence. Defendant was convicted of murder and this was upheld on appeal.
Defendant shot intruders at his home, one died and the other was seriously injured. Defendant heard the intruders and feared they may be violent towards him.
Defendant’s appeal on the ground of self defence was rejected, as he was found to have used unreasonable force. However, his conviction was reduced to manslaughter on the basis of diminished responsibility as he was suffering from a longstanding paranoid personality disorder.
Mandatory Life Sentence
Murder (Abolition of the Death Penalty) Act 1965
.. a person convicted of murder shall be sentenced to imprisonment for life....
The rationale for mandatory life sentences is to impose the highest punishment on what is generally regarded as the most serious crime. It has also been seen as a tariff to appease those who opposed the abolition of the death sentence.
A judge has no discretion in sentence, for those convicted of murder who over 18 years old, he must pass a life sentence. For offenders, 10 – 17 years old, the sentence has to be detained at Her Majesty’s pleasure, which means indefinitely and until he is deemed safe to return to society. In each case a minimum number of years to be served before any application for release on licence can be made
This approach does not allow the sentences to reflect the circumstances of an individual case. It has been argued although murder is clearly a serious crime there are degrees of seriousness within killings that are not recognised in sentences.
Proposals for Reform
The Law Commission has undertaken numerous investigations into this area of law and made many recommendations on possible improvements.
In the report
Offences Against the Person and General Principles1993 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....
In the report
Murder, Manslaughter and Infanticide2006 the Law Commission proposed dividing murder into two separate offences, first degree murder and second degree murder.
First degree murder would cover cases where the defendant intended to kill. It would also cover killings where the defendant intended to cause serious harm and realised there was a serious risk of death as a result of his conduct. First degree murder would carry a mandatory life sentence.
Second degree murder would be applicable in cases where the defendant intended to cause serious injury but was not aware that there was a serious risk of death. Second degree murder would carry a discretionary sentence with a maximum of life imprisonment.
The Law Commission have suggested that self defence could be made a partial defence, so it could result in a conviction for manslaughter not murder. Also if mandatory life sentences for murder were to be abolished then judges would have discretion to pass suitable sentences.
The Government issued
Murder, Manslaughter and Infanticide: proposals for reform of the law (2008) consultation paper.
The paper rejected the Law Commission’s proposals for reforming the offence structure and making a two tier system.
The Government did feel there was a need for reforming the self defence law and wanted to create some protection for those who acted in self defence but it was found had used excessive force. Therefore, created the
loss of controlpartial defence under the Coroners and Justice Act 2009. This allows for a conviction to be reduced from murder to manslaughter, where the defendant lost control due to a fear of violence.