3|Law 03 - Criticisms of Murder and Voluntary Manslaughter

katy stopforth
Flashcards by katy stopforth, updated more than 1 year ago
katy stopforth
Created by katy stopforth about 5 years ago


Law 03 - Criticisms to Murder and Voluntary Manslaughter

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Introduction Definition of Murder DM & LOC are partial defences (Homicide Act 1957 --> Coroners and Justice Act 2009) Despite recent reforms, such as the replacement of provocation with LOC , problems still exist with murder and the defences LC - “Rickety structure set upon shaky foundations” due to lack of clarity - especially due to it being developed on a case by case basis, in a piecemeal way.
The Serious Harm Rule Murder SHR is one such area in need of reform. It is recognised in cases like Vickers and Cunningham - if D intends serious harm and their V dies they should be guilty Criticised by Lord Steyn in Powell - the MR for murder should not include implied malice is it results in D being found guilty for murder when they did not intend to kill. Reflects lack of differentiation regarding blameworthiness. Remedy - LC recommended instead of current two-tier structure of the general homicide offences, namely murder and manslaughter, there should be a three tiered structure: 1st degree (mandatory life sentence) 2nd degree (discretionary life sentence) 3rd degree (discretionary life sentence) First degree - confined to unlawful killing committed where D had intent to kill,or cause serious injury, where D was aware that his conduct involved serious risk of causing death. This would clarify and improve SHR because D would only be found guilty if they were aware their conduct would cause a serious risk of death. This would address problem regarding lack of blameworthiness.
Excessive Force in Self Defence Murder Where D uses reasonable force in self defence, he may be able to rely on the defence. If D uses more force that is necessary, he will be guilty of murder. All or nothing defence - acquitted or guilty R v Martin (excessive force during burglary) R v Clegg (soldier at check point shot at car) Been improved - plead LOC using 'fear of violence' as qualifying trigger - partial defence that Tony Martin could plead Goes some way to remedying problems regarding lack of defence however the creation of a new defence where excessive force is used would be desirable.
Sexual Infidelity Loss of Control SI within LOC is another Before Loss of Control was introduced through the CJA, Provocation was a previous defence to murder. The change of law was to prevent Ds who were mainly men, pleading provocation in circumstances where Ds were blaming their partners for their domestic violence and being allowed a defence when killed. This change - unpopular with judiciary and it was set out in Clinton that although sexual infidelity in itself is not a qualifying trigger, it can be a ‘circumstance’ for the purposes of s54 (1) (c). This contradicts s55 (6) (c) and does not give effect to the legislation. Remedy: LC have suggested that s55 (6) (c) should be removed and allow sexual infidelity to once again be a trigger for the purposes of s54 (1) (b).
Mercy Killings Diminished Responsibility DM amended by s52 CJA 2009 Main changes - requirement of RMCs - impacts cases where D had committed a mercy killing as they are no longer able to plead the defence. Under old law - only necessary to prove abnormality of mental functioning so requirement of RMC makes it more difficult to prove as evidence from two doctors is required - means D like in Bailey and Lawson cannot plead defence Remedy: LC argued that 'developed immaturity' should be a RMC for the purposes of the defence for those under 18. The Act did not go this far but it is recommended as a reform.
Conclusion In conclusion, despite recent reforms, laws on murder and vol man are still far from settled. Proposals given by LC would remedy the main problem areas, especially with the intro of three-tiered structure as opposed to two-tiered. This would prevent lack of differentiation in sentencing for those who aren't as blameworthy as true murderers, such as those who use excessive force in self defence.
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