Summary of the possible evaluation points for murder, DR and LOC
(A) Criticisms of the structure and the elements of the law of murder • no distinctions for motive - eg mercy
v serial killer • no distinction between intent to kill and intent to cause gbh of any kind • no distinction
between pre-meditated and spontaneous • implications of mandatory life sentence for partial defences
structure • joint enterprise issues • actus reus issues – unborn child • actus reus issues – establishing death
• mens rea issues – meaning of intention (direct/oblique) • excessive self-defence • exclusion of the
defence of duress • any other valid criticism Note: sound any three developed criticisms
(B) Criticisms of the partial defences • loss of control: general structure (revenge/loss of control, self-
induced/loss of control; fear/loss of control); subjective and objective tests in the fear and anger triggers;
the sexual infidelity exclusion; the comparison with a person of normal degree of tolerance and self-
restraint • diminished responsibility: scope of coverage; causal requirement; burden of proof; effect of
intoxication; relationship with insanity. Note: sound any three developed criticisms (from either or both)
(C) Suggestions for reform in the light of the criticisms presented in (A) and (B) • abandonment of
mandatory sentence or adoption of tiers/degrees of homicide • restriction of the scope of intention to cause
serious injury as mens rea for murder • clarification of the meaning of intention • further changes to defence
of self-defence • reconsideration of duress as a defence • amendment of the loss of control defence to
eliminate confusion about revenge/fear and loss of control, or about the meaning and scope of ‘sexual
infidelity’ • amendment of burden/standard of proof in diminished responsibility • greater clarity in
relationships between the defence and intoxication/insanity • any other valid proposal.
Developed discussion/evaluation points with reform
Murder
The current laws on murder, based almost exclusively in the common law, are the subject of numerous
criticisms and there have ben calls for reform over decades which culminated with the Law
Commissions 2006 Report, “Murder, Manslaughter and Infanticide” which called for wholesale
changes to (an overhaul of) the current laws on all aspects of homicide (murder, involuntary
manslaughter and the partial defences for murder (diminished responsibility and loss of control)). In
2006 the LC said, “the law governing homicide in England and Wales is a rickety structure set on
shaky foundations”. Lord Mustill in AG’s Ref No 3 of 1984, “the law of homicide is permeated with
anomaly, fiction, misnomer and obsolete reasoning”. The current laws on murder are undoubtedly in a
sorry state and in drastic need of reform. However the LC report was produced over a decade ago (10
yrs ago) and the proposed reforms have yet to be enacted. We cannot foresee significant change in
the very near future. The Draft Criminal Code, which first proposed different tiers or levels of
homicide was produced in 1985 but abandoned in 2008. There seems little real political appetite for
reform.
There are problems with the fact that the rules on murder were by judges in the common law,
with Coke’s original definition “the unlawful killing of a human being in times of peace with malice
aforethought” which dates back to 1797. The fact that the law on murder has developed on a
piecemeal basis (haphazardly/on an ad hoc basis) over hundreds of years leaves us with a large volume
of precedent and some confusion can be criticised- particularly the law on oblique intention (see
later). There is a cumbersome bank of case law and the rules are in constant flux/change which can
make the laws difficult to access and use and is not always particularly clear. Parliament has never
intervened and given a clear and modern definition. The fact that the law on murder has not been
(A) Criticisms of the structure and the elements of the law of murder • no distinctions for motive - eg mercy
v serial killer • no distinction between intent to kill and intent to cause gbh of any kind • no distinction
between pre-meditated and spontaneous • implications of mandatory life sentence for partial defences
structure • joint enterprise issues • actus reus issues – unborn child • actus reus issues – establishing death
• mens rea issues – meaning of intention (direct/oblique) • excessive self-defence • exclusion of the
defence of duress • any other valid criticism Note: sound any three developed criticisms
(B) Criticisms of the partial defences • loss of control: general structure (revenge/loss of control, self-
induced/loss of control; fear/loss of control); subjective and objective tests in the fear and anger triggers;
the sexual infidelity exclusion; the comparison with a person of normal degree of tolerance and self-
restraint • diminished responsibility: scope of coverage; causal requirement; burden of proof; effect of
intoxication; relationship with insanity. Note: sound any three developed criticisms (from either or both)
(C) Suggestions for reform in the light of the criticisms presented in (A) and (B) • abandonment of
mandatory sentence or adoption of tiers/degrees of homicide • restriction of the scope of intention to cause
serious injury as mens rea for murder • clarification of the meaning of intention • further changes to defence
of self-defence • reconsideration of duress as a defence • amendment of the loss of control defence to
eliminate confusion about revenge/fear and loss of control, or about the meaning and scope of ‘sexual
infidelity’ • amendment of burden/standard of proof in diminished responsibility • greater clarity in
relationships between the defence and intoxication/insanity • any other valid proposal.
Developed discussion/evaluation points with reform
Murder
The current laws on murder, based almost exclusively in the common law, are the subject of numerous
criticisms and there have ben calls for reform over decades which culminated with the Law
Commissions 2006 Report, “Murder, Manslaughter and Infanticide” which called for wholesale
changes to (an overhaul of) the current laws on all aspects of homicide (murder, involuntary
manslaughter and the partial defences for murder (diminished responsibility and loss of control)). In
2006 the LC said, “the law governing homicide in England and Wales is a rickety structure set on
shaky foundations”. Lord Mustill in AG’s Ref No 3 of 1984, “the law of homicide is permeated with
anomaly, fiction, misnomer and obsolete reasoning”. The current laws on murder are undoubtedly in a
sorry state and in drastic need of reform. However the LC report was produced over a decade ago (10
yrs ago) and the proposed reforms have yet to be enacted. We cannot foresee significant change in
the very near future. The Draft Criminal Code, which first proposed different tiers or levels of
homicide was produced in 1985 but abandoned in 2008. There seems little real political appetite for
reform.
There are problems with the fact that the rules on murder were by judges in the common law,
with Coke’s original definition “the unlawful killing of a human being in times of peace with malice
aforethought” which dates back to 1797. The fact that the law on murder has developed on a
piecemeal basis (haphazardly/on an ad hoc basis) over hundreds of years leaves us with a large volume
of precedent and some confusion can be criticised- particularly the law on oblique intention (see
later). There is a cumbersome bank of case law and the rules are in constant flux/change which can
make the laws difficult to access and use and is not always particularly clear. Parliament has never
intervened and given a clear and modern definition. The fact that the law on murder has not been
