Holly Lawton Law Unit 4
D1
Unit 4 D1
“Murder is when a man of sound memory, and of the age of discretion,
unlawfully killeth within any country of the realm any reasonable creature in
rerum natura under the King's peace, with malice aforethought, either expressed
by the party or implied by law, so as the party wounded, or hurt, etc. die of the
wound or hurt, etc. within a year and a day after the same." Judge Coke 1797
Proposed Reforms to Homicide
In 2006 the Law Commission published a report ‘Murder, Manslaughter and
Infanticide (Report Law Com 304). In this report the Law Commission pointed out
that there were many problems with the law on murder. In its general comments
on the law of murder the report said “The law governing homicide in England
and Wales is a rickety structure set upon shakey 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.” In the
report the Law Commission set out the existing problems with the law on murder.
They listed the following:
The law on murder has developed but by bit in individual cases and is not
a coherent whole.
A defendant can be convicted of murder even though he only intended to
cause serious harm (serious harm rule)
There is no defence available if excessive force is used in self-defence.
The defence if duress is not available as a defence to murder.
The mandatory life sentence and the government’s sentencing guidelines
do not allow sufficient differentiation in sentencing to cover the wide
variety of levels of blameworthiness in the current law of murder.
The Law Commission also pointed out that there are problems with the special
defences to murder of diminished responsibility and loss of control.
Bit by bit development of the law – One of the main areas where the bit by bit
development by the courts has caused problems is the meaning of ‘intention’.
Intention is a concept which affects all specific intent offences but most of the
cases which have been heard by the House of Lords have involved murder.
Section 8 of the Criminal Justice Act 1967 tried to make the law clear on this
point. It states: “A court or jury in determining whether a person has committed
an offence –(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 (B) shall decide whether he dis intend or
foresee that result by reference to all the evidence, drawing such inferences
from the evidence as appear proper in the circumstances.” The main problems in
the law are on foresight of consequences. The House of Lords has tried on many
occasions to explain what effect the foresight of consequences has. In Moloney
, Holly Lawton Law Unit 4
D1
1985 it ruled that foresight of consequences was not intention; it was only
evidence from which intention could be inferred in accordance with s8(b).
However, the later decision in Woolin 1998, where the House of Lords speaks
about intention being found from foresight of consequences, has made the law
uncertain. It is not clear whether there is a substantive rule of criminal law that
foresight of consequences is intention, or if there is only a rule of evidence that
intention can be found from foresight of consequences. In Matthews and Alleyne
2003 the Court of Appeal even said that there was little to choose between a rule
of evidence and one of substantive law, leaving it even more unclear.
Serious Harm Rule – The Law Commission in their report, ‘Murder, Manslaughter
and Infanticide 2006’, pointed out that Parliament, when it passed the Homicide
Act 1967, never intended a killing to amount to murder unless the defendant
realised that his conduct might cause death. They stated that in their view the
present offence of murder is too wide. Under the present law on murder, a
defendant is guilty of murder if he had the intention to cause GBH and actually
causes the victim’s death. In some of these cases the defendant may not even
realise that death could occur. Yet he is just as guilty of murder as the man who
deliberately sets out to kill his victim. The Law Commission give the following
example in their report “D intentionally punches V in the face. The punch breaks
V’s nose and causes V to fall to the ground. In falling, V hits his head on the curb
causing a massive and fatal brain haemorrhage.” They point out that, if the jury
decide that the harm D intended the punch to cause can be described as
‘serious’, then this would be murder. Yet, most people would agree that thus
should not be the most serious offence of homicide and D should not receive a
mandatory life sentence for it.
Not only are the Law Commission very critical of this rule, but the problem had
already been pointed out by judges as far back as 1981 in the case of
Cunningham 1981. When the law 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. He said: “[It is] 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.” Although he was very critical of the law, Lord Edmund
Davies felt that any change in the law had to be made by Parliament. This was
because the law has been the same for over 200 years and it would therefore be
wrong for judges to change such a well-established law.
The Law Commission has made very specific proposals for how the law could be
reformed.
No defence where excessive force is used – If a defendant can show that he used
reasonable force in self-defence or prevention of a 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. This ‘all or nothing’ effect of the defence is very harsh in
D1
Unit 4 D1
“Murder is when a man of sound memory, and of the age of discretion,
unlawfully killeth within any country of the realm any reasonable creature in
rerum natura under the King's peace, with malice aforethought, either expressed
by the party or implied by law, so as the party wounded, or hurt, etc. die of the
wound or hurt, etc. within a year and a day after the same." Judge Coke 1797
Proposed Reforms to Homicide
In 2006 the Law Commission published a report ‘Murder, Manslaughter and
Infanticide (Report Law Com 304). In this report the Law Commission pointed out
that there were many problems with the law on murder. In its general comments
on the law of murder the report said “The law governing homicide in England
and Wales is a rickety structure set upon shakey 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.” In the
report the Law Commission set out the existing problems with the law on murder.
They listed the following:
The law on murder has developed but by bit in individual cases and is not
a coherent whole.
A defendant can be convicted of murder even though he only intended to
cause serious harm (serious harm rule)
There is no defence available if excessive force is used in self-defence.
The defence if duress is not available as a defence to murder.
The mandatory life sentence and the government’s sentencing guidelines
do not allow sufficient differentiation in sentencing to cover the wide
variety of levels of blameworthiness in the current law of murder.
The Law Commission also pointed out that there are problems with the special
defences to murder of diminished responsibility and loss of control.
Bit by bit development of the law – One of the main areas where the bit by bit
development by the courts has caused problems is the meaning of ‘intention’.
Intention is a concept which affects all specific intent offences but most of the
cases which have been heard by the House of Lords have involved murder.
Section 8 of the Criminal Justice Act 1967 tried to make the law clear on this
point. It states: “A court or jury in determining whether a person has committed
an offence –(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 (B) shall decide whether he dis intend or
foresee that result by reference to all the evidence, drawing such inferences
from the evidence as appear proper in the circumstances.” The main problems in
the law are on foresight of consequences. The House of Lords has tried on many
occasions to explain what effect the foresight of consequences has. In Moloney
, Holly Lawton Law Unit 4
D1
1985 it ruled that foresight of consequences was not intention; it was only
evidence from which intention could be inferred in accordance with s8(b).
However, the later decision in Woolin 1998, where the House of Lords speaks
about intention being found from foresight of consequences, has made the law
uncertain. It is not clear whether there is a substantive rule of criminal law that
foresight of consequences is intention, or if there is only a rule of evidence that
intention can be found from foresight of consequences. In Matthews and Alleyne
2003 the Court of Appeal even said that there was little to choose between a rule
of evidence and one of substantive law, leaving it even more unclear.
Serious Harm Rule – The Law Commission in their report, ‘Murder, Manslaughter
and Infanticide 2006’, pointed out that Parliament, when it passed the Homicide
Act 1967, never intended a killing to amount to murder unless the defendant
realised that his conduct might cause death. They stated that in their view the
present offence of murder is too wide. Under the present law on murder, a
defendant is guilty of murder if he had the intention to cause GBH and actually
causes the victim’s death. In some of these cases the defendant may not even
realise that death could occur. Yet he is just as guilty of murder as the man who
deliberately sets out to kill his victim. The Law Commission give the following
example in their report “D intentionally punches V in the face. The punch breaks
V’s nose and causes V to fall to the ground. In falling, V hits his head on the curb
causing a massive and fatal brain haemorrhage.” They point out that, if the jury
decide that the harm D intended the punch to cause can be described as
‘serious’, then this would be murder. Yet, most people would agree that thus
should not be the most serious offence of homicide and D should not receive a
mandatory life sentence for it.
Not only are the Law Commission very critical of this rule, but the problem had
already been pointed out by judges as far back as 1981 in the case of
Cunningham 1981. When the law 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. He said: “[It is] 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.” Although he was very critical of the law, Lord Edmund
Davies felt that any change in the law had to be made by Parliament. This was
because the law has been the same for over 200 years and it would therefore be
wrong for judges to change such a well-established law.
The Law Commission has made very specific proposals for how the law could be
reformed.
No defence where excessive force is used – If a defendant can show that he used
reasonable force in self-defence or prevention of a 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. This ‘all or nothing’ effect of the defence is very harsh in
