Fatal offences - Evaluation Flashcards
1
Q
What is murder and what is the definition of it?
A
- Common law offence
- “The unlawful killing of a reasonable person in being and under the King’s (Queen’s) Peace with malice aforethought (evil intent), express or implied” - Lord Coke, 17th C.
- Anybody can be charged with murder in a court in England and Wales, but if the defendant is a British Citizen, they may also be tried in an English court even if the offence is alleged to have taken place abroad
2
Q
What is the Actus Reus of murder?
A
- The defendant has killed a reasonable creature (person), in peacetime, in an unlawful manner
- ‘Killed’ can either be by act or omission and must cause the death of the victim e.g. Gibbins and Proctor (1918), the father of a 7 year old girl and his mistress were guilty of murder through omission of failure (they had starved the girl to death)
3
Q
What is the Men’s Rea of murder?
A
Express malice aforethought which is the intent to kill or implied malice aforethought which is the intention to cause grievous bodily harm e.g. Cunningham (1981)
4
Q
What occurred after the Moloney (1985) case?
A
- Rules were set out called the ‘Moloney rules’ that were:
- ‘How likely is death the consequence of the defendants actions?’ which is a objective test, and
- ‘How aware is the defendant of the consequences?’ which is a subjective test
5
Q
What report was there for the reform of murder?
A
- The Law Commission Report 2006 - Murder, Manslaughter and infanticide
- Pointed out that there were many problems with the law on murder
6
Q
Why was the bit-by-bit development in law a problem the report pointed out?
A
- The main problem with murder cases are the problems raised by foresight of consequence.
- The H of Ls ruled in Moloney (1985) that foresight of consequence was not intention, it was only evidence. In Woollin (1998), they spoke about intention being found in foresight of consequence.
- To further confuse things, the Court of Appeal stated in Matthews and Alleyne (2003) that there was little to choose between a rule of evidence and substantive law.
- This makes it all very unclear.
7
Q
What is the serious harm rule?
A
- A killing would only amount to murder, if defendant realised death was a possible consequence of his conduct
- A defendant can be convicted of murder even though he or she only intended to cause serious harm
8
Q
Why was the serious harm rule a problem the report pointed out?
A
- The report claims that the present offence of murder is too wide
- Somebody who sets out to intentionally murder someone and another who has set out to commit grievous bodily harm (but the consequence results in the victim’s death) are equally guilty of murder.
- In Cunningham (1981) Lord Davies stated that the mens rea for murder should be limited to an intention to kill, but that it was up to Parliament, not judges to change the law.
9
Q
Why is there being no defence available if excessive force is used in self-defence a problem the report pointed out?
A
- In cases of self-defence or prevention of crime, if the force used is reasonable, then the defendant is not guilty of murder, if however the force used is beyond reasonable, then it is murder.
- It hardly seems fair then that if in doing the above, the defendant is judged to have used excessive force, they are equally as guilty as somebody who set out to kill. Clegg (1995), Martin (Anthony) (2002).
- Coroners and Justice Act 2009 does allow a partial defence of ‘loss of control’ in these situations however.
- Crime and Courts Act 2013 givers wider defence to householders where intruders are concerned, but the degree of force must not be ‘grossly disproportionate’.
- The criticsm is why does it have to be different to someone attacked outside and the level of force they can use to someone being attacked indoors and the level of force they can use
10
Q
Why is the defence of duress not being available as a defence to murder a problem the report pointed out?
A
- Duress cant be used as a defence in murder however.
- E.g. If somebody is forced into being an accomplice to a murder on the threat of being killed themselves unless they cooperate, they would receive the same mandatory life sentence as the killer himself.
- The Law Commission has proposed that duress be used as a complete defence to murder.
11
Q
What is Duress?
A
Where the defendant is threatened with death or serious injury unless they take part in an offence.
12
Q
What’s the problem the report pointed out relating to mandatory life sentences and governments sentencing lines?
A
- They don’t allow sufficient differentiation in sentencing to cover the wide variety of levels of blameworthiness in the current law of murder
- The Criminal Justice Act 2003 stated: Whole life term for serious, premeditated cases, child murders, 30 years minimum for murders of police, prison officers, sexual or sadistic killings, and 15 years minimum for murders not falling into the above categories.
- Under these rules, the defendant in Martin (Anthony) (2002) would have received the same minimum sentence as a contract killer.
- The Law Commission have suggested that murder should be reformed by dividing it into two offences – first degree murder and second degree murder. First degree would be intention to kill, second would be intention to seriously injure but death resulted.
- Mandatory life sentence and guidelines on minimum sentences should only apply to first degree murder.
13
Q
What was the governments response to the 2006 commission report?
A
- Government consultation paper July 2008
- It rejected the idea of two levels of murder offence.
- It accepted the need for a ‘loss of control’ defence in cases of self- defence which was eventually included in the Coroners and Justice Act 2009
- Problems remain however with difficulties in the meaning of intention, lack of a defence of duress and mandatory life sentences.
14
Q
How did the Coroners and Justice Act 2009 change the law of voluntary manslaughter?
A
- Changed the Homicide Act 1957
- Changed the defence of provocation to the new defence of loss of control and changed insanity to diminished responsibility
15
Q
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