Evaluation of Muder and Manslaughter

Assignment 3:

Evaluation of Murder and Manslaughter

Evaluation of Murder

Law Commission Report

Law commission reports set out problems with the law on Murder and in 2006, the Law Commission published a report known as Murder, Manslaughter and Infanticide. In the report the law on murder was described as ‘A rickety structure set upon shaky foundations’. It states that the law is unsatisfactory; as some elements have remained unchanged since the seventeenth century (here it was defined by Lord Coke). On the other hand, some Courts have slightly altered the law to the point that they can no longer be stated with any certainty or clarity. A common law offence is not defined in a statute. In other words, it was defined by the Courts in certain cases and has never been made into an Act of Parliament. This is undemocratic as judges are not elected to make law, that is Parliaments role and Parliament is a higher source of role and so should be the only establishment to create legislation.

There are many issues with the law on Murder and one of the main problems is the mandatory life sentence which applies to all defendants aged 18 and over it. A life sentence is subdivided into three possible sentences, which were laid out in the Criminal Justice Act, 2003. These sentences include the minimal sentence of 15 years for most run of the mill murders, then 30 years for the killing of policemen or multiple victims and finally a whole life sentence, which is for individuals who commit pre-meditated savage and sadistic murders such as Ian Brady. The idea of a mandatory life sentence goes against the fundamental principle of law that a sentencing court should not impose a punishment which does not fit the crime. This inflexibility within the law means that the circumstances are not taken into account. For example, if a person commits a murder because they are a contract killer and were hired to do so, this is completely different from a person performing a mercy killing to relieve a relatives suffering.

This can be shown in the case of Martin, 2002 where the defendant shot and killed a person who was burgling his home. This was unjust in the sense that the defendant had been burgled multiple times and was scared, he also couldn’t see where he was shooting. This is unfair as he did not intentionally kill a person although he was reckless in the way that he was shooting blindly. The burglars were in his home and committing a crime. A further example is that of Gotts, 1992 where the defendant was a 16 year old whose father threatened to kill him unless he stabbed his other. The injury to the boys’ mother did not result in her death and because the case was not a murder case the judge could take the boys circumstances into account and so the defendant received a punishment of three years probation. If the stabbing had resulted in his mother’s death then he would have had to be detained.

These are completely different scenarios to, say a person assassinating another person for money. Yet, Martin would have received the same mandatory life sentence and Gotts would have been detained at Her Majesty’s Pleasure. The guidelines offered by Parliament do not allow sufficient differentiation between levels of blameworthiness. There are also other issues to consider such as the fact there is no defence of duress or excessive force as a result of self-defence.

The Law commission proposed to introduce a new structure for Murder, which replaced the old two-tier system, comprised of Murder and Manslaughter, with a new three-tier system. This three-tier structure is subdivided into first degree murder which is defined as intentional killing or killing with an intention to do serious injury in the awareness that there is a serious risk of causing death. This has a mandatory life sentence.

Second degree murder is next which is defined as killing with the intention to do serious injury; killing with the intention to cause serious injury but they aren’t in the awareness that there is a serious risk of causing death; this is the result of a successful partial defence plea to first degree murder. This has a maximum sentence of life but the sentence is made at the judge’s discretion. With second degree murder, the defendant is still guilty if they intended to cause grievous bodily harm even without knowing there was a risk. One case illustration Cunningham, 1981 where Lord Edmund Davis said "I find it passing 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. And yet, for the lesser offence of attempted murder, nothing less than an intent to kill will suffice. But I recognise the force of the contrary view that the outcome of intentionally inflicting serious harm can be so unpredictable that anyone prepared to act so wickedly has little ground for complaint if, where death results, he is convicted and punished as severely as one who intended to kill."

The thin skull rule is also relevant when considering the sentence of a person for murder. A case example of this is R v Hayward, 1908 where the defendant chased his wife out of the house shouting threats at her. As a result of this she collapsed and died. His wife was suffering from a rare thyroid condition which could lead to death where physical exertion was accompanied by fright and panic. Even though the defendant and his wife were unaware she had this condition the thin skull rule applies as you take your victim as you find them. The defendant was found liable for constructive manslaughter as his unlawful act (assault) caused death. He was therefore fully liable despite the fact an ordinary person of reasonable fortitude would not have died in such circumstances. In this case, the thin skull rule may be seen to be fair as the defendant was verbally abusing his wife and she was clearly frighten of what he might do. But in other cases the think skull rule can be seen to be unfair for instance in Cunningham, 1981 where the intentional offence was breaking the victims arm which clearly wasn’t an intention to kill. However, the defendant can still be charged with murder is there was an intention to cause serious bodily harm. Therefore, in Cunningham intentionally breaking the victims arm was intention to cause serious bodily harm. The thin skull rule will apply even if it is unfair.