HOMICIDE REFORM
Law Commission’s proposal — LC report no. 304
- three-tier structure of homicide offences:
- first-degree murder (mandatory life sentence)
- unlawful killings with intention to kill
- unlawful killings committed with an intent to cause serious injury where the killer was
aware that his or her conduct involved a serious risk of causing death.
- second-degree murder (discretionary life sentence)
- unlawful killings committed with an intent to cause serious harm.
- unlawful killings intended to cause injury or fear or risk of injury where the killer was
aware that his or her conduct involved a serious risk of causing death.
- cases which would constitute first degree murder but for the fact that the accused
successfully pleads provocation, diminished responsibility or that he or she had killed
pursuant to a suicide pact.
- manslaughter (ibid.)
- unlawful killings caused by acts of gross negligence
- unlawful killings caused by a criminal act that was intended to cause injury or by a
criminal act foreseen as involving a serious risk of causing some injury.
***Horder — questioned the aspiration for enacting a fully codified law of homicide in a single statute.
prefers more piecemeal reform + believe that the violative nature of homicide offences demand that the
public be consulted periodically with regards to reform proposals in this area => otherwise, laws would
lack moral authority.
***abolition of murder/manslaughter distinction — culpability reflected in sentencing as opposed to
label;
artificial — difficulties in creating cogent + watertight boundaries between the offences not easily
resolved by simply removing the prospect of a boundary altogether;
censure function of the criminal law reflected by labels;
murder is not just at the apex of a sliding scale of culpable homicides — strong social repugnance
and disapproval thereof should be expressly reflected in the criminal law;
, Murder
Mens rea
Robert Goff, ‘The Mental Element in the Crime of - distinction between intention and desire
Murder’ (1988) 104(Jan) LQR 30 - there may be intention in absence of foresight
and vice versa, e.g. when Field Marshall
Montgomery invaded France on D-Day he
foresaw that many of the troops under his
command would be killed but he did not intend
for them to be
- foresight of consequences cannot of itself
establish intention but may constitute material
from which the jury may infer intention
- as Lord Scarman pointed out in Hancock, the
greater the degree of probability of the
consequence, the more likely it is that the
consequence was foreseen, and if that
consequence was foreseen, the greater the
probability that that consequence was also
intended.
- the idea of oblique intention represents an
illegitimate attempt to expand the fault element
of murder to cases which do not readily
accommodate the concept of intention despite a
feeling that they ought to be classified as murder
cases
- distinction between stating that any consequence
foreseen as probable is intended and stating that a
consequence which was foreseen by the actor as
virtually certain is intended
- the association between the terms ‘oblique’ and
‘intention’ appears strained — suggests that in
jury systems it is preferable to use the plain and
ordinary meaning of words
- intention to cause GBH — it seems very strange
that a man should be called a murderer even
though not only did he not intend to kill the
victim, but he may even have intended that he
should not die.
Ashworth, ‘Reforming the law of murder’ - disagrees with proposition to expand mens rea
for murder so as to include reckless killings;
- it is difficult to establish a precise
characterisation of cases involving reckless
killings which show such a high disregard for
human life that they are morally + socially
equivalent to intentional killings
- such vagueness might transfer too much power to
the jury
- there are other offences to deal with the cases
exemplified by those who advocate the
broadening of the fault element for murder —
certainty + predictability over merits of a vague
test which would involve overly subjective
considerations on the part of the jury;
,A Pedain, “Intention and the Terrorist Example” - argues that a terrorist who plants a bomb not
[2003] Crim LR 579 necessarily foreseeing death or injury as virtually
certain can nevertheless be found to have the
intention required for murder IF his attitude to
the risk he creates is taken into account;
- suggests that the criminal law should recognise a
uniform concept of intention at the heart of which
lies the agent’s attitude to the possible outcomes
of his conduct.
- terrorist example raised by Lord Steyn in Woolin
— a member of the bomb disposal team is killed,
in which case it might be realistic to say that the
terrorist did not see such a death as a virtual
certainty oh his actions;
- it can be argued that the terrorist wants the
bomb to explode unconditionally => possesses
necessary intention for murder because it does
not matter to him who is affected by the
explosion.
- alternative reading — what if he does not want
the bomb to explode unconditionally?
- e.g. terrorist leaved bomb in public place as
a threat only but does not actually want to
kill or injure anyone through an explosion.
- e.g. terrorist does not necessarily even want
the bomb to explode — only wants
publicity => would be content even if bomb
defused successfully.
- Norrie — in order to reconcile the law with
moral instincts, one must substitute cognitivist
understanding of indirect intention as a state of
mind involving foresight of consequences with a
non-cognitivist conception of MR which
identifies the MR for murder with conduct
evincing a degree of moral animus toward V
from the actions of D;
- Pedain disagrees with the suggestion that
subjectivist understanding of intention should
be abandoned — believes it is possible to
develop subjectivist concept of intention
which can be reconciled with the alternative
reading of the terrorist example;
- both types of intention — primary and secondary,
i.e. foresight of harm as virtual consequence,
signal prior endorsement of the outcome by the
actor — the actor cannot dissociate himself from
the outcome *** compare Woolin — D did not
endorse injury or death as a possibility.
- ways to dissociate — D did not have virtual
certainty / D deplored the outcome, i.e. did not
want it to happen.
- e.g. Hyam — D could not dissociate from
outcome, she did have an intention to expose
someone to a risk, the fact that the risk
materialised irrelevant to MR.
- this does not equate intention with
recklessness — distinction between endorsing
a consequence and realising that it is possible
it will happen.
- Horder — certain by-products of our actions are
simply part and parcel of what we do => no need
for secondary intention concept to recognise
conduct as intentional.
, *cont. - the terrorist example should, as a matter of legal
doctrine, and can, under existing English law, be
resolved by holding the terrorist guilty of
murder--even if death or serious injury was
neither foreseen as certain nor, as such, desired
either as a means or an end--on the basis that the
creation of the risk of such harm is an essential
aspect of the success of the terrorist's actions and
signals an approval of the possible harmful
outcomes, which prevents him from
meaningfully disassociating himself from them
as undesired outcomes of his actions if they
materialise.
- key between distinguishing intention from
subjective recklessness does not lie in the
differing probabilities of outcomes, or in
defendant's views about these probabilities, but in
the defendant's attitude towards the risk.
SCOPE OF MENS REA FOR MURDER correspondence principle / fair-labelling
VS.
moderate constructivism
Law Commission’s proposal — LC report no. 304
- three-tier structure of homicide offences:
- first-degree murder (mandatory life sentence)
- unlawful killings with intention to kill
- unlawful killings committed with an intent to cause serious injury where the killer was
aware that his or her conduct involved a serious risk of causing death.
- second-degree murder (discretionary life sentence)
- unlawful killings committed with an intent to cause serious harm.
- unlawful killings intended to cause injury or fear or risk of injury where the killer was
aware that his or her conduct involved a serious risk of causing death.
- cases which would constitute first degree murder but for the fact that the accused
successfully pleads provocation, diminished responsibility or that he or she had killed
pursuant to a suicide pact.
- manslaughter (ibid.)
- unlawful killings caused by acts of gross negligence
- unlawful killings caused by a criminal act that was intended to cause injury or by a
criminal act foreseen as involving a serious risk of causing some injury.
***Horder — questioned the aspiration for enacting a fully codified law of homicide in a single statute.
prefers more piecemeal reform + believe that the violative nature of homicide offences demand that the
public be consulted periodically with regards to reform proposals in this area => otherwise, laws would
lack moral authority.
***abolition of murder/manslaughter distinction — culpability reflected in sentencing as opposed to
label;
artificial — difficulties in creating cogent + watertight boundaries between the offences not easily
resolved by simply removing the prospect of a boundary altogether;
censure function of the criminal law reflected by labels;
murder is not just at the apex of a sliding scale of culpable homicides — strong social repugnance
and disapproval thereof should be expressly reflected in the criminal law;
, Murder
Mens rea
Robert Goff, ‘The Mental Element in the Crime of - distinction between intention and desire
Murder’ (1988) 104(Jan) LQR 30 - there may be intention in absence of foresight
and vice versa, e.g. when Field Marshall
Montgomery invaded France on D-Day he
foresaw that many of the troops under his
command would be killed but he did not intend
for them to be
- foresight of consequences cannot of itself
establish intention but may constitute material
from which the jury may infer intention
- as Lord Scarman pointed out in Hancock, the
greater the degree of probability of the
consequence, the more likely it is that the
consequence was foreseen, and if that
consequence was foreseen, the greater the
probability that that consequence was also
intended.
- the idea of oblique intention represents an
illegitimate attempt to expand the fault element
of murder to cases which do not readily
accommodate the concept of intention despite a
feeling that they ought to be classified as murder
cases
- distinction between stating that any consequence
foreseen as probable is intended and stating that a
consequence which was foreseen by the actor as
virtually certain is intended
- the association between the terms ‘oblique’ and
‘intention’ appears strained — suggests that in
jury systems it is preferable to use the plain and
ordinary meaning of words
- intention to cause GBH — it seems very strange
that a man should be called a murderer even
though not only did he not intend to kill the
victim, but he may even have intended that he
should not die.
Ashworth, ‘Reforming the law of murder’ - disagrees with proposition to expand mens rea
for murder so as to include reckless killings;
- it is difficult to establish a precise
characterisation of cases involving reckless
killings which show such a high disregard for
human life that they are morally + socially
equivalent to intentional killings
- such vagueness might transfer too much power to
the jury
- there are other offences to deal with the cases
exemplified by those who advocate the
broadening of the fault element for murder —
certainty + predictability over merits of a vague
test which would involve overly subjective
considerations on the part of the jury;
,A Pedain, “Intention and the Terrorist Example” - argues that a terrorist who plants a bomb not
[2003] Crim LR 579 necessarily foreseeing death or injury as virtually
certain can nevertheless be found to have the
intention required for murder IF his attitude to
the risk he creates is taken into account;
- suggests that the criminal law should recognise a
uniform concept of intention at the heart of which
lies the agent’s attitude to the possible outcomes
of his conduct.
- terrorist example raised by Lord Steyn in Woolin
— a member of the bomb disposal team is killed,
in which case it might be realistic to say that the
terrorist did not see such a death as a virtual
certainty oh his actions;
- it can be argued that the terrorist wants the
bomb to explode unconditionally => possesses
necessary intention for murder because it does
not matter to him who is affected by the
explosion.
- alternative reading — what if he does not want
the bomb to explode unconditionally?
- e.g. terrorist leaved bomb in public place as
a threat only but does not actually want to
kill or injure anyone through an explosion.
- e.g. terrorist does not necessarily even want
the bomb to explode — only wants
publicity => would be content even if bomb
defused successfully.
- Norrie — in order to reconcile the law with
moral instincts, one must substitute cognitivist
understanding of indirect intention as a state of
mind involving foresight of consequences with a
non-cognitivist conception of MR which
identifies the MR for murder with conduct
evincing a degree of moral animus toward V
from the actions of D;
- Pedain disagrees with the suggestion that
subjectivist understanding of intention should
be abandoned — believes it is possible to
develop subjectivist concept of intention
which can be reconciled with the alternative
reading of the terrorist example;
- both types of intention — primary and secondary,
i.e. foresight of harm as virtual consequence,
signal prior endorsement of the outcome by the
actor — the actor cannot dissociate himself from
the outcome *** compare Woolin — D did not
endorse injury or death as a possibility.
- ways to dissociate — D did not have virtual
certainty / D deplored the outcome, i.e. did not
want it to happen.
- e.g. Hyam — D could not dissociate from
outcome, she did have an intention to expose
someone to a risk, the fact that the risk
materialised irrelevant to MR.
- this does not equate intention with
recklessness — distinction between endorsing
a consequence and realising that it is possible
it will happen.
- Horder — certain by-products of our actions are
simply part and parcel of what we do => no need
for secondary intention concept to recognise
conduct as intentional.
, *cont. - the terrorist example should, as a matter of legal
doctrine, and can, under existing English law, be
resolved by holding the terrorist guilty of
murder--even if death or serious injury was
neither foreseen as certain nor, as such, desired
either as a means or an end--on the basis that the
creation of the risk of such harm is an essential
aspect of the success of the terrorist's actions and
signals an approval of the possible harmful
outcomes, which prevents him from
meaningfully disassociating himself from them
as undesired outcomes of his actions if they
materialise.
- key between distinguishing intention from
subjective recklessness does not lie in the
differing probabilities of outcomes, or in
defendant's views about these probabilities, but in
the defendant's attitude towards the risk.
SCOPE OF MENS REA FOR MURDER correspondence principle / fair-labelling
VS.
moderate constructivism
