UNIT 3: A* (25/25) MURDER REFORM ESSAY IN REVISION FORMAT

This got given full marks by a  law teacher who marks this exam - hope it helps!<3

Murder essay structure

JAN 2010 In recent years, there has been much dissatisfaction with the current law of murder and voluntary manslaughter. Explain the reasons for this dissatisfaction and consider what proposals have been made for the reform of the law.

JAN 2012 Despite some recent reforms, there are still criticisms to be made of the current law on murder and voluntary manslaughter. Consider relevant criticisms of that law, and suggest any reforms that may be appropriate.

JUNE 2015; Something like dicuss the criticisms of voluntary manslaughter!

Either have to alter the words to “ A suggested reform” or “ A proposed reform” or state “one reason for dissatisfaction derives from” or “One criticism is” – USE the words in the question to shape the argument.

Introduction	There remains numerous unresolved issues with the law on homicide. Lord Musthill in Attorney general no3 dubbed the law on homicide as permeated by "anomaly, fiction, misnomer and obsolete reasoning". In the law commissions report Murder, Manslaughter and Infanticide no 304 2006 paragraph 1.8 stated that similarly, "the law governing homicide in England and Wales is a rickety structure set upon shaky foundations". Clearly the law on homicide remains unsatisfactory and in “dire need of reform”.
Issue one piecemeal development and Intention	One issue with murder is that when one is attempting to pin-point the law, it becomes difficult due to piecemeal development; leaving the law a bricolage of rules and not a coherent whole. The law largely consists of countless cases, legislation, and writings from a 17th century jurist. Recent developments have only permeated this issue further. The defences in The Homicide act 1957 have either been replaced or amended in an act that focuses on primarily separate matters relating to coroners, thus providing a reason as to why the Law commission in 2004 called the law “a mess”. An example of this is the meaning of intention in relation to foresight of consequences The House of Lords in R v Maloney ruled that foresight of consequences is not intention and only evidence in which intention could be inferred in accordance to s8b of The Criminal Justice Act 1967. The decision in R v Woolin counteracted this, deeming intention was found from foresight of consequences thus making the law confusing. Clearly the law operates incoherently.
Reform	A suggested reform could be an all new embracing act being produced, that provides law on murder in a single place. If this succeeds, this could clean up the law on murder making its application more accessible in court.
Issue 2 Serious Harm rule	Equally important is the issue of the serious harm rule under the present law, this makes the defendant guilty of murder even if they only desired to cause V serious harm (GBH) but nevertheless caused their death R v Vickers, R v Cunningham 1981 This seems largely unfair as in some cases, D may not even realise death is a possibility, yet he may still be just as guilty as someone whose main intention was to kill their victim. Many feel that if death wasn’t the aim of the defendant, then they should not receive the same stigma and sentence, but rather a lesser offence of homicide and shorter sentence. Lord Edmund Davies J noted this analogy in the law as being "strange" in R v Cunningham
Reform	The law commissions report  Murder, Manslaughter and Infanticide 2006 no 304 (with regard to the above issue) proposed that the offence of murder should be split into first degree and second degree murder, or essentially to ‘tiers’. Tier 1 would be concerned with when D had an intention to kill or to cause GBH and was aware of the risk of death (dishing out a mandatory life sentence as well). Tier 2 accounts for situations where D has an intention to cause GBH but is unaware of the risk of death, or has an intention to kill with a partial defence. D would receive a discretionary sentence. This reform should provide a clear cut answer to those who are deservedly punished for their conduct, as well as those in which death was not their aim.
Issue 3 joint enterprise	In conjunction with issues and unfairness of the serious harm rule, the laws on Joint enterprise remain a recurring issue. The numbers of appeals according to The Guardian have sprouted from 11% in 2008 to 22% in 2013 showing injustice prevails. The law commissions report Participating in Crime no 305 2007 stated joint enterprise "has developed haphazardly and is permeated with uncertainty". One criticism is parity of culpability which states that D can be guilty to the same stigma and penalty of the P, even if he only foresaw the possibility of them committing murder or “aided” it. This can be viewed as unfair since D has not actually carried out the crime, this being the case of Alex Henry in 2013 where he was committed of murder under joint enterprise although he did not engage in the crime, or know P had a knife.
reform	The report proposed a reform that stated that D's culpability (in terms of the conduct element) should at least be comparable to P if he is to receive the same stigma and penalty or if he  intended that P should engage in the crime and not simply foreseen a possibility. Although accepted by the government, they have refused to implement it. The judiciary accept its faults, particularly with secondary liability to murder but state it is not their place to change and parliament have yet to do so.  JENGBA a charity dedicated to families of joint enterprise victims continues to protest for changes in the law for over 500 past recent cases.
Issue 4 distinguish premeditated killings from heat of the moment ones	There also remains the unresolved issues with the law of the special partial defence to murder Loss of control which is set out under s54 of The Coroners and Justice Act 2009.   Firstly it is often difficult to distinguish premeditated killings from those that are carried out in the heat of the moment. This act makes it clear that the loss of control does not need to be sudden according to R v Aluwahlia. However it also excludes acts carried out for a considered desire for revenge, R v Ibrhams and Gregory, begging the question as to what was going on in the meantime and making it particularly hard for the jury to decipher as well.
Reform	So far there have not been any proposed  reforms
Issue 5 Sexual infidelity being vague	There also comes into play the issue with sexual infidelity. The old law on provocation was regarded as the "nagging and shagging defence" indicative of the roots of the defence and the most common cases. The decision to exclude sexual infidelity was not one made by the lawyers at the law commission, but politicians who stated that this prevented men who carried out horrendous crimes having a defence. However sexual infidelity is extremely vague and there is no definition of what the act covers in terms of the types of relationships or acts that constitutes to sexual infidelity. As well as this the jury could find it hard to consider the events but at the same time disregard the fact it constituted to sexual infidelity.
Reform	Under R v Clinton, the law has actually perpetuated the uncertainty since it allows sexual infidelity to be considered by the jury where another qualifying trigger is raised, and when it is necessary to consider the context in which this other trigger occurred. This makes it confusing as to whether it can ever be a consolidating trigger, and in some cases it could deprive justice.
Issue 6 Burden of proof	Finally, laws on Diminished Responsibility also provides a fair amount of issues at first instance. Unlike the laws of loss of control the burden of proof is on D on the balance of probability. This could be considered fair as only they can consent to psychiatric examinations to verify this. Alternatively it could be argued that it its unfair and a breach of article 6 of the European conventions of Human Rights which states that D is to be presumed innocent and not vice versa.
Reform	No proposed reform as of yet on this matter.
Issue 7	Finally, laws on Diminished Responsibility also provides a fair amount of issues at first instance. Unlike the laws of loss of control the burden of proof is on D on the balance of probability. This could be considered fair as only they can consent to psychiatric examinations to verify this. Alternatively it could be argued that it its unfair and a breach of article 6 of the European conventions of Human Rights which states that D is to be presumed innocent and not vice versa.
Issue 8	Furthermore in the Law commissions report Murder Manslaughter and Infanticide 2007, the Royal College of psychiatrics recommended referring to the lists of conditions set out by the "world health organisation" and "American psychiatric association". The advantage here is that the law can develop with evidence based on ground breaking work of a recognised specialist. However these lists are not specifically mentioned in the amended section which means that a jury could perhaps be exposed to idiosyncratic opinions as a result.
	There has not been any proposed reforms of this matter as of yet. Overall, it is clear that unresolved issues permeate the law on homicide, and there is hope for the future that these could potentially be resolved.