MURDER –

CRITICISMS & REFORMS

1)There is no statutory definition of murder just common law, yet it is the most serious offence surely it deserves legislation by Parliament.

2)The new direction for oblique intent of ‘VIRTUAL CERTAINTY’is brief and easier for a jury to understand. Unlike the lengthy statements in MOLONEY and those formulated by the C/A in HANCOCK & SHANKLAND

Their Lordships had stressed the need for any direction to be ‘clear and simple and expressed in as few words as possible’ but it is still a long way from its ordinary meaning & this is bound to cause confusion to the jury.

3) The main problem is the law on indirect/oblique intention (foresight of consequence). S.8 of the Criminal Justice Act 1967 tried to make the law clear on this point stating that

“Foresight of consequence was not intention; it was only evidence from which intention could be inferred.”

4)It is felt that this approach in WOOLLINcan cause problems.

Prof J Smith argues that although a jury may be certain that D foresaw the consequences of his actions as a VIRTUAL CERTAINTY they still do not have to say that D had the INTENTION, some on a jury may want to some may no.

Prof Smith & the Law Commission favour the same approach:

“Aresult foreseen as virtually certain is = to an intended result”

Today’s law means a person who kills foreseeing death/GBH as virtually certain MAY be a murderer, under the reforms the person WOULDbe a murderer.

The CA in MATTHEWS & ALLEYNE2003 agreed with the judgement in WOOLLIN meant that FORESIGHT OF CONSEQUENCE IS NOT INTENTION JUST EVIDENCE OF

There are several areas in which the law on murder is not satisfactory. Four main points are:

1) The difficulties in deciding what is meant by intention.(see above)

2) The fact that a defendant can be convicted of murder even though he did not intend to kill.

3) The fact that the only sentence for murder is life imprisonment.

4) The fact that the use of excessive force in a situation where some force was justified does not provide any defence.

5) No defence of duress

Each of these is discussed below.

2)NO INTENTION TO KILL

Should a person who sees GBH as Virtually certain (definition of intention in NEDRICK oblique intention) be convicted of the same offence as someone who wants to kill? The law seems to have no power to discriminate between degrees of blameworthiness

The MR for murder is ‘The intention to kill or cause GBH’ either intention will suffice therefore someone could be guilty of murder even though they did not intend to kill.In some of these cases the defendant may not even realise that death could occur. Yet his is just as guilty of murder as the man who deliberately sets out to kill his victim.

REFORM: The rule has been questioned by several judges notably in HYAM who believed that the MR for murder should simply be “INTENTION TO KILL”on the grounds that the term murder should be reserved for the most blameworthy type of behaviour.

REFORM: Also in CUNNINGHAM (1981) where this point was considered by the House of Lords, Lord Edmund Davies stated that he thought the mens rea for murder should be limited to an intention to kill. However, he thought that this had to be done by Parliament rather than by the judges changing the law through decisions in cases

3)MANDATORY LIFE SENTENCE

If a defendant aged 18 or over is convicted of murder, the judge has to pass a sentence of life imprisonment. Because the judge has no discretion in what sentences to impose, this is known as a mandatory sentence. The judge cannot give a different sentence even if he feels that the defendant is not as blameworthy as a deliberate killer.

For offenders aged 10-17 who are found guilty of murder, the judge has to order that they be detained at Her Majesty’s Pleasure.

For other offences, including attempted murder, the judge can decide the most appropriate sentence for the offence and the offender. This makes it possible for a judge to give even a community sentence where the circumstances justify it.

This happenedin the case of:

GOTTS (1992)

FACTS: where the father of a 16-year-old-boy threatened to kill the boy unless he stabbed his mother. The boy did stab her and seriously injure her but the injury did not kill her.

HELD: He was convicted of attempted murder and because of the circumstances the judge put him on probation for three years. If the stabbing had caused the death of the mother the judge would have ordered the boy (because of his age) to be detained at Her Majesty’s pleasure

It was because of the mandatory life sentence for murder that the HOMICIDE ACT 1957 set out special defences of DR & PROVOCATION which reduce the charge to manslaughter. This allows the judge flexibility when he is passing sentence

REFORM:If the mandatory life sentence was abolished this would mean that the partial defences could be abolished in favour of judicial discretion when sentencing

4)NO DEFENCE WHERE EXCESSIVE FORCE IS USED

If a defendant can show that he used reasonable force in self defence or prevention of crime in doing the killing, he is not guilty of murder.

However, where force is necessary in self-defence or prevention of crime, but the defendant uses excessive force in the circumstances, he is guilty of murder:

MARTIN 2002

FACTS: Two burglars entered D’s house in the night. Martin was woken he armed himself with a shotgun & without warning fired 3 shots. One of the burglars was killed.

HELD:Martin was convicted of murder. His appeal on the grounds of self-defence was rejected as the force was not reasonable.

This ‘all or nothing’ effect of the defence is very harsh in murder cases as the defendant is either acquitted or given a life sentence.

CLEGG 1995

FACTS: D was a soldier on duty in NI when a stolen car came towards him at speed. D fired at the car, his final shot hit a passenger in the back & killed him. The evidence showed that the car had gone passed D by the time the last shot was fired

HELD: he couldn’t use self-defence as there was no danger to him when he fired the last shot. The force was excessive & his conviction for murder was upheld

1999 returned to the CA & he was acquitted as new forensic evidence cast doubt as to whether the final shot had been fired by CLEGG

Both these decisions were criticised. Many people believe that a person who kills where he has an honest, but unreasonable belief as to the degree of force to be used is not as blameworthy as a ‘true’ murderer.

It is unjust that such a person is found guilty of the same crime of murder & sentenced to the same punishment

REFORM:The Law Commission in 2006 suggested that the partial defence ofLOSS OF CONTROL would solve this situation.

They said it could be used should be used in cases where a defendant kills a burglar who he accosts in his home usually involving excessive force.

The ‘FEAR TRIGGER’ introduced in LOSS OF CONTROL in the CORONERS & JUSTICE ACT 2009 has been intended as a response to this problem.

5)NO DEFENCE OF DURESS

Duress is where D is threatened with death or serious injury so that he takes part in a crime. Duress is allowed to almost all offences, but is not allowed as a defence to murder (or attempted murder)

The Law Commission gives the following example:

‘ A gunman takes over a taxi drivers car by holding a gun to his head & tells the taxi driver to drive to a place where he is going to shoot someone. The taxi driver does as the gunman demands & the gunman does shoot & kill someone’

Under the existing law the taxi driver is an accomplice to the killing & could be convicted of murder. He would then receive a mandatory life sentence same as the gunman which is clearly not fair.

REFORM:The Law Commission proposes that duress be a complete defence to murder. However a D claiming this defence would have to prove that he was threatened with death or life-threatening harm & had no realistic opportunity to seek police protection.

The jury would also have to agree that a person of ordinary courage might have responded in the same way as D did by taking part in the commission of a crime

SUGGESTED REFORMS OF MURDER

Law Commission’s proposals

At the end of 2006 the Law Commission published a report on murder, manslaughter and infanticide. This report states that a new Homicide Act is needed as there are several problems in all the areas of the law on homicide. So far as murder is concerned, the report proposed splitting in into two levels:

  • First degree murder; and
  • Second degree murder.

First degree murder would carry a mandatory sentence of life imprisonment. It would apply where the defendant:

  • Killed intentionally; or
  • Intended to do serious injury and was aware that there was a serious risk of causing death.

Second degree murder would carry a discretionary sentence of life imprisonment. It would apply to killings:

  • Where D had intended to do serious harm;
  • Where D intended to cause some injury or fear or risk of injury and was aware of a serious risk of causing death;
  • Where D had a partial defence through diminished responsibility, loss of control or duress to what would otherwise be first degree murder.

THE GOVERNMENTS RESPONSE TO THE LAW COMMISSION’S PROPOSALS

The Government rejected the above proposals of reforming murder by making it a 2 tier system.

The only area the Government accepted that reform was needed was the lack of defence for those who use excessive force in self-defence.

This reform was implemented as part of the Coroners & Justice Act 2009.

Under this act there is the defence of ‘LOSS OF CONTROL’ where D kills through loss of control due to fear of serious violence. If the defence is established the charge of murder is reduced to manslaughter.

This Act also allows D’s in cases like MARTIN & CLEGG to have a partial defence reducing murder to manslaughter, they will have to prove ‘LOSS OF CONTROL’ as well as the fear of violence.