Unit 3 Criticism Essays: Murder and Voluntary Manslaughter: (Introduction:…
Unit 3 Criticism Essays: Murder and Voluntary Manslaughter:
Lord cokes definition: 'Unlawful killing of a ...'
Explain the AR
Causation- D killed
( Re A)
Reasonable person (
A-G ref no.3 1997)
( R v Clegg)
Explain the MR
Expressed or Implied -
R v Vickers
Indirect Intention -
R v Woollin
Direct Intention -
R v Mohan
Law Commission states law on murder is a '
Rickety structure on shaky foundations'. in the 2006 'Murder, manslaughter, infanticide' Report
. also stated possible criticisms and reforms.
Murder Criticism 1 - Mens Rea:
1st: State how it is split ( Direct and Indirect)
2nd: Indirect poses a large issue: open ended definitions creates a lack of clarity. Not contained in a statue with a clear definition leading to constant reinterpretation.
R v Moloney
Matthews and Alleyney
can causes judges to create inaccurate interpretation.
LC suggest a reform to codify definitions within the mens rea element.
- intention to bring about a result can be found if the D saw the result as a virtual certainty.
- intended a result if he or she acts in order to bring about.
Could be positive as it has been used and applied for many years and allows judges to use interpretation powers to fit the case.
Could still be hard to establish the subjective element and judges have less interpretive powers if in a statute
Murder Criticism 2 - Mandatory Life Sentence:
: Does mean justice is served as the end consequence is the same in both cases. and easier to convict as mercy killings are difficult to prove
: To include defences such as duress and provocation to act as partial factors. suggest the government should undertake a public consultation around the idea of mercy killings. would of been useful in some cases.
: can be seen as unfair or unjust as mercy killings ( R v Pretty) and a vindictive killing (jack the ripper) receive the same sentence despite different circumstances.
it could be seen to allow people to shift blame and receive a lesser sentence. Which could be unjust.
Murder Criticism 3 - Current Structure of Murder:
Common law structure allows judges to use statutory interpretation to tailor to specific cases.
LC propose a new three tier structure, separating the intention to kill and intention to cause GBH creates more clarity.
2nd degree murder - killing with intention to do serious harm or intention to cause some harm
Manslaughter - death caused by a criminal act intended to cause injury
1st degree murder - killing with intent to kill or killig with intent to cause serious harm
It's shown to be outdated as it has not been updated since lord coke's definition. two tier structure can cause confusion for judges due to over lap. required law is not consolidated in one place.
the new stigma created from 2nd degree murder rather then manslaughter. and thee could still be a thin dividing line for some cases
Loss of Control Criticism:
Correction of New Law:
Removed the need for it to be sudden, made it less restrictive and provides support for individuals.doesnt make it to open though as the longer the less likely
Exclusion of sexual infidelity as a trigger can be seen as unfair as most claim it to be a trigger. confusing for judges as it was considered in
R v Clinton
: Criticised for the need of the loss of control to be sudden, this means people in abusive relation ships could not get the defence (
: Government could redraft the defence and create a reasonable trigger to include sexual infidelity.
Diminished Responsibility Criticism:
developmental immaturity is not considered, too restrictive for 10-14 ear olds whose frontal lobe has not fully developed. unjust as a 30 year old could claim it for a lack of developed maturity
was vague as o the definition of substantially impaired, lack of clarity
Defence could be modified in line with scientific research to allow for such circumstances and use health professionals to set the restrictions.
New Law correction
: Now defines what part of mental functioning has to be substantially impaired and how it doesn't need to be total ( Lloyd)