Write a critical analysis of the law on murder. Discuss any reforms that may be
desirable and whether these reforms would address the problems with the
current law on murder.
The law on murder, and particularly its defences, has been heavily criticised over time.
Murder is defined by Sir Edward Coke as 'the unlawful killing of a human being under
the Queen's peace, with malice aforethought, express or implied'. In 2006, the Law
Commision published a report titled ‘Murder, Manslaughter and Infantacide’ which stated
the following “The law is a rickety structure set upon shaky foundations….some rules are
unaltered since the 17 th Century… other rules are uncertain because they are so
frequently changed there is no clarity”. This report detailed the weakness in the law and
suggested reforms.
One of these reforms put forward by the Law Commission was a tiered approach to
murder. They suggested that murder be split into three tiers: first degree murder, second
degree murder and manslaughter. These would all hold different sentences. First degree
murder would be a mandatory life sentence, and second degree and manslaughter
having a discretionary life sentence. This aims to differentiate between the various
circumstances that murder takes place, as currently all murder has a mandatory life
sentence regardless of their motive. For example, somebody who helps a terminally ill
person commit suicide is viewed under the same circumstances as a serial killer, with
them both recieving the same sentence when it could be argued that their crimes are
clearly had different motives.
One weakness surrounding the law of murder is that duress is not available as a
defence. Duress is where somebody is threatened with serious harm or death unless
they agree to carry out or take part in an offence. It can be argued that it is unfair and
inconsistent that the defence of duress is not available for murder when it is for all other
crimes. This gives the expectation that people should lay down their lives for the sake of
others, which is unrealistic in most cases. This was highlighted in the case of R v Howe
and Bannister where two young men were forced to kill two people under the orders of
an older man, Murray, or else they would be killed themselves. They were convicted of
murder and it was stated in the obiter dicta that ‘the defence should not be available to
one who attempts murder.’ This lack of defence means that the law fails to protect young
and vulnerable people that could be exploited.
Another weakness concerning the law of murder is that there is no defence when
excessive force is used in self defence. When a killing is committed in self defence, it is
often accepted that no offence has been committed. However, when the force that is
used is disproportionate to the threat, then there is no defence of self defence available.
This would mean that the only possible conviction is murder and this would of course
lead to a mandatory life sentence being imposed. This can be seen in the case of Clegg
(1995). A soldier working at a checkpoint fired four shots at a car that had failed to stop,
killing one of the passengers. Due to the evidence that the car was 50m past the
checkpoint when the shots were fired, the defendant was convicted of murder. This
desirable and whether these reforms would address the problems with the
current law on murder.
The law on murder, and particularly its defences, has been heavily criticised over time.
Murder is defined by Sir Edward Coke as 'the unlawful killing of a human being under
the Queen's peace, with malice aforethought, express or implied'. In 2006, the Law
Commision published a report titled ‘Murder, Manslaughter and Infantacide’ which stated
the following “The law is a rickety structure set upon shaky foundations….some rules are
unaltered since the 17 th Century… other rules are uncertain because they are so
frequently changed there is no clarity”. This report detailed the weakness in the law and
suggested reforms.
One of these reforms put forward by the Law Commission was a tiered approach to
murder. They suggested that murder be split into three tiers: first degree murder, second
degree murder and manslaughter. These would all hold different sentences. First degree
murder would be a mandatory life sentence, and second degree and manslaughter
having a discretionary life sentence. This aims to differentiate between the various
circumstances that murder takes place, as currently all murder has a mandatory life
sentence regardless of their motive. For example, somebody who helps a terminally ill
person commit suicide is viewed under the same circumstances as a serial killer, with
them both recieving the same sentence when it could be argued that their crimes are
clearly had different motives.
One weakness surrounding the law of murder is that duress is not available as a
defence. Duress is where somebody is threatened with serious harm or death unless
they agree to carry out or take part in an offence. It can be argued that it is unfair and
inconsistent that the defence of duress is not available for murder when it is for all other
crimes. This gives the expectation that people should lay down their lives for the sake of
others, which is unrealistic in most cases. This was highlighted in the case of R v Howe
and Bannister where two young men were forced to kill two people under the orders of
an older man, Murray, or else they would be killed themselves. They were convicted of
murder and it was stated in the obiter dicta that ‘the defence should not be available to
one who attempts murder.’ This lack of defence means that the law fails to protect young
and vulnerable people that could be exploited.
Another weakness concerning the law of murder is that there is no defence when
excessive force is used in self defence. When a killing is committed in self defence, it is
often accepted that no offence has been committed. However, when the force that is
used is disproportionate to the threat, then there is no defence of self defence available.
This would mean that the only possible conviction is murder and this would of course
lead to a mandatory life sentence being imposed. This can be seen in the case of Clegg
(1995). A soldier working at a checkpoint fired four shots at a car that had failed to stop,
killing one of the passengers. Due to the evidence that the car was 50m past the
checkpoint when the shots were fired, the defendant was convicted of murder. This
