Partial Defences to Murder

At the beginning of its report on the Partial Defences to Murder (Law Com 290, 2004), the Law Commission says expressly that it “has long considered that the law of murder is in need of review”. This shows that it has been brought to the attention of parliament by their advisors that the law on murder is in an great need of being changed, however as parliament doesn’t have to follow all that the law commission suggests to them – all the law commission is designed to do is to suggest to parliament things they think need to be changed, not things parliament will in fact change.

This shows that there are indeed some points of the law on murder which need to be addressed, but that parliament isnt responding to that need as they don’t feel they have the time to carry out the drafting of a statue to change it. So it shows a lack of commitment to addressing the law on behalf of parliament, whose job it is really to make the country a safer place to live in for the citizens of the UK, but it is debatable as to how safe our country really is when parliament don’t commit the time to changing important statutes on murder as murder is a serious issue as to the life and wellbeings of british citizens – many people want justice to be served by those who are a danger to society. The law on murder is considered to be quite old, as the definition used for it was by Lord Justice Coke in the 16th century, which is still used today.

This shows that the law on murder has remain consist over the centuries, and the same principles remain the same today as they did back in the 16th century. However, a lot of things occur in the world today that they didn’t occur 500 years ago, which arent covered in the law as they didn’t occur back then. Also, murder is a common law offence which can cause a lot of inconsistancy in the law as different judges have different views on the same issue so there may be holes in the law due to the fact that the law on murder is based on cases instead of statutes which can properly defined murder in its widest sense.

There are several areas in which the law of murder is unsatisfactory, and is satisfactory. The first point is the fact that a defendant can be convicted of murder even though there is no intention to kill. Under the present law on murder, a defendant is guilty of murder if he had intention to cause grievous bodily harm and actually causes the victims death. In some of these cases the defendant may not even realise that death could occur. Yet he is just as guilty as the man who sets out to kill his victim intentionally.

This point has been considered by the House of Lords – whether a person who didn’t intend murder is still punished with the same offence as someone who did. One leading case where the point was put across was in Cunningham in 1981, where Lord Edmund Davies thought that for a sentence of murder the Defendant must only have the intention for murder. However he thought that it must be changed by parliament, rather than changing the law through decisions on cases. This is a good point to stress the fact that Murder is a common law offence – which means it has been defined by cases.

So if murder is defined by cases, then why not continue changing it with cases, instead of waiting for parliament to pass a statute which by the time it has been passed will be out of date anyway? If murder has always been defined by cases, at what point did it stop being defined by cases and only have to be defined by statute? Can the law on murder not be challenged by cases which think it is incorrect and outdated, only to find it has to go through a long lengthy process to change it. There have been attempts at persuading parliament to pass new law on murder but parliament has not been prepared to give the necessary time to enact the law.

The draft criminal code produced in 1989 changed the intention of GBH to intention to do GBH and foresight of death, but a draft is still a draft and isn’t law. So because parliament has not been prepared to look at a pontentially flawed piece of law which needs to be considered, potentially a lot of “murderers” are in prison for a crime that in fact they didn’t actually intend to do. So this brings me back to my earlier point – if parliament wont spend the time to change the law on murder to something which is a more reasonable sentence, then why cant it be change in cases, like it always has been?

This leads me in to my next point which is connected to the first. What is intention, and how do you prove the difference between the intention to kill and the intention to do GBH? The courts find it difficult trying to find out what is meant by intention, for how can you really prove a person intended to do a specific thing at any given point in time? The main problems in the law are on foresight of consequences. The house of lords has tried on many occasions to explain it. However, at what point does the intention to cause GBH turn in to the intention to kill the victim?

The defendant could have the intention for murder, but plead intention to GBH to make the offence seem less than it really was. So that is one of the hardest things to prove – what the defendant really intended when he committed the guilty act – they may not have even intended to cause GBH, but would still be on a charge of murder. There is also a problem with the sentence for murder. If someone is found guilty of murder, no matter what the circumstances they were under, the sentence for murder is always life.

The judge cannot choose a different sentence even if the defendant isn’t as blameworthy as a deliberate killer. However it could be argued that in these circumstances a defendant shouldn’t be punished with a mandatory life sentence, there is always the partial defences of diminished responsibility, provocation or suicide pact. These defences were designed for people who didn’t deliberately intend to kill the victim, but ended up with the death. So with the issues of the sentence, unless they were a serial killer, there are other options to the sentence of murder and the mandatory life sentence can be avoided.

The mandatory life sentence then distorts the law by making necessary the special defences of provocation and diminished responsibility. For with these special defences, the law on murder can be misued as murders think that even though they are facing a murder charge, they is always an option to escape from the life sentence of murder. As there is only one type of murder charge in the UK, anyone can use one of the defences and have a high probablity of having their sentence lessened by using one of the defences.

This defeats the object of the mandatory life sentence which is to have consistancy in the law for murder – if your charged with murder, you get a set sentence, but through misues of defences, murder can have any sentence up to 15 years. Different “degrees” of murder (as in the USA), carrying different penalties or allowing judicial discretion, would make these special defences unnecessary, and would be a far more effective way of charging murder, as different types of murder would fit into different degrees, and then the inconsistancy in sentencing wouldn’t exist.

It also brings up the question of – whats the difference between a case that would be able to use a defence of diminished responisbility or provacation and reducing the sentencing to manslaughter and a full on murder case? Different judges will pass different judgment on the same case – so how are we to know what is the right judgement for that case and what is the wrong one? However, with attempted murder, the judge can choose the most appropriate sentence for the offence. However, If a person attempts to kill another, obviously they have the intention to kill the person, it just wasn’t finished or complete for what ever the reason may be.

So if they have the intention to kill someone, then why aren’t they subjected to the same principles of law as a person who has actually killed someone? The intention of killing was obviously intact at the point of the injuries, so this means that they are as dangerous as someone who has actually killed someone, and if they had the chance to they would have probably killed the person. So those who attempt murder could be as potentially dangerous as those who murder, yet the sentences are both different, which is unfair as the point of the law is to protect the public from potentially dangerous criminals and from harm.

Alternatively, the mandatory life sentence is inadequate, because most murderers are released after serving only 20-30 years. Many people think murderers should be given a “whole life” sentence, or should forfeit their own lives and suffer death as retribution for the life they have taken. For why should they be allowed to have some sort of life in the real world and be able to enjoy their lives when they have denied some one else of their right to live and enjoy a normal and happy life?

They should pay for all the pain they have caused to the family of the victim, and the fact that they denied someone the previalage to live the rest of their lives – they gave up the right to be a normal human being and be able to enjoy their freedom when they gave up that right when they turned in to a murderer. A lot of people believe in the saying a life for a life – if some one takes a life, then their life is worthless and needs to be given up in return for the life that they originally stole. If a defendant can show that he used reasonable force in self defence or prevention of crime in doing the killing, he is not guilty of murder.

However, where force is necessary in self defence or prevention of crime but the defendant uses excessive force in the circumstances, he is guilty of murder. This all or nothing effect of the defence can been seen as very harsh in murder cases as the defendant can either be acquitted or given a life sentence. He was justified in using some force and his only fault is that he used more force than was reasonable. When looking at the defence from this angle, it can be seen as harsh to make the defendant serve a life sentence for something which he had no intention to do, and the intention to do so would have never have crossed his mind.

However, if self defences sentences were made more lenient, more murder cases may use it is as a defence if they think there actions may result in a lot lower sentence. It may then be overused, and more people who obviously are murders may get off more lightly than they really should. There are two main cases which highlight the problems of the all or nothing defence of self defence. The first is Clegg (1994), who was a soldier on duty at a check point in Northern Ireland, when a stolen car came at him at speed. Clegg fired at the car, with his final shot hitting a passenger in the back, killing her.

Evidence shows that the car had gone past by the time the last shot was fired. It was held that self defence or defence of antoher could not be used as there was no danger when he fired that shot. The force was excessive and his conviction for murder was upheld. The second was Martin (2001) where two burgulars entered the defendants house in the night. The house was in an isolated place and had been burgurled before. On this occasion, the noise of entry had woken the house owner, who got up, armed himself with a shot gun, and without warning fired three shots in to the dark.

One of the shots killed a burgular. Convicted of murder. He appeal on the grounds of self defence, but it was rejected as the force was not reasonable. However his conviction was reduced to manslaughter as there was evidence he was suffering from diminished responsibility. Both of these decisions have been critised, as many people who believe that a person who kills where he has an honest but unreasonable belief as to the degree of force needed is not as blameworthy as a true murderer. It is seen as unjust that such a person is found guilty of the same crime of murder and sentenced to the same punishment.

The actus reus of murder involves the death of a “person in being”, and excludes the death of a foetus. Extending the definition of murder to cover some or all abortions would be popular with some people and very unpopular with others, and would involve redefining of the point at which life begins. For the issue of when a life begins is quite a tough issue to resolve, and has many debates upon it. Does life start at conception, or when a person takes it first breathe? In law, a person is alive when they take their first breath, even if they arent independent of their mother.

So even if a woman gets stabbed in the stomach whilst pregnant, and the baby dies before being born, this is not murder, even if the pregnancy is quite far along. So this could be quite traumatic for the mother who has gone through the whole pregnancy to have her baby die. In their report on Murder and Manslaughter (Law Com 304, November 2006) the Law Commission proposed a new structure. First degree murder (carrying a mandatory life sentence) would cover killing with the intention to kill (including cases of oblique intention), and killing intending to cause serious injury and foreseeing a serious risk of death.

Second degree murder (carrying a discretionary life sentence) would cover killing with the intention to cause serious injury, Killing intending to cause some injury and foreseeing a serious risk of death, and killing with diminished responsibility, under provocation or in a suicide pact. Manslaughter (carrying a discretionary life sentence) would cover killing with foresight of some injury, or through gross negligence. It remains to be seen when (and whether) any of these proposals find their way into legislation.