Evaluation: Murder and Manslaughter

• One weakness in the law of murder is the serious harm rule, as evident through malice aforethought (mens rea) of murder. As seen in the case of Cunningham only the mens rea for some harm (GBH) is sufficient mens rea for murder. Therefore this is a weakness because a defendant who only intends to cause some harm will be committed and stigmatised the same as a person who intends to commit murder, despite having no intention for the death of the victim.

• It can be argued that the mens rea element of murder promotes a strong sense of deterrence. This is therefore a strength as it protects public safety and ultimately provides retribution for society, as defendant’s who are reckless and still virtually certain that death or serious injury could occur deserve punishment for their reckless behaviour.

• Another weakness of the law is evident through the mandatory life sentence as set through the statutory framework 269-277 of the Criminal Justice Act 2003, it states a 25 year sentence for offenders of murder. This is unfair as the sentencing for life does not differentiate on a case by case basis, depending on the seriousness of the crime. This is a weakness because a child killer can get the same sentence as a mercy killing (euthanasia) despite the differences in circumstances. Therefore mitigating factors are ignored and the defendant will be stigmatised the same as any other killer.

• The defence of diminished responsibility is found under the Homicide Act 1957, as amended by the Coroners and Justice Act 2009.

• A disadvantage of the law is that the burden of proof relies on the defendant. This is a weakness because defendants, such as Bryne, have to prove their own mental illness in order the claim the defence of diminished responsibility and are clearly not in the right position to do so. Also many defendants are unaware they are suffering from an abnormality of mental functioning and consequently are unable to diagnose themselves as they believe their behaviour is normal and reasonable.

• Another disadvantage of diminished responsibility is the developmental immaturity, as seen in the case of Jamie Bulger where the defendants were convicted of murder despite not having mental maturity. They were legally convicted at ten, yet they don’t reach maturity until they turn fourteen so it promotes injustice as there is no defence as immaturity isn’t viewed the same as an abnormality of mental functioning. Therefore a child under fourteen will still be stigmatised the same as a fifty year old killer.

• The law of loss of control also provides some disadvantages and advantages within in it. The defence provides that the defendant need no longer have a sudden and temporary period through the abolishment of provocation and a ‘cooling down’ period can now occur. This is therefore an advantage as it allows the defence of loss of control to be applicable to women also by allowing the defendant time to act. Alhuwalia illustrates that before the defence of provocation did not even allow a five minute space before acting and many women found themselves guilty of murder, despite having only killed for a specified reason. Therefore men and women who react as a result of abuse, such as battered wife syndrome can claim a defence as their conduct only occurred due to a qualifying trigger and should be able to have a defence as a normal person with the same degree of tolerance in the circumstances would have reacted in the same way.

• Another advantage of loss of control is under 55(c), sexual infidelity will not allow for a qualifying trigger. As seen in the case of Clinton. This removal of sexual infidelity stops the defence from becoming wildly applicable in society. This is an advantage because as it maintains retribution and only allows a defence for severe circumstances such as abuse. However, this could also be interpreted as a disadvantage as due to living in a more promiscuous and sexual society, infidelity occurs more often. Therefore by not allowing a defence for infidelity many defendants are convicted of murder despite having been provoked at the time of the killing.

• The law commission suggests the reform of murder by adding first degree and second degree equivalent of murder (similar to the American Justice system). This would therefore create a wider variety of sentencing options. By doing this retribution would still occur but it would provide varying sentences for different circumstances and thus mean that a greater sense of justice is achieved.

• The reform would also remove the serious harm principle and allow judges and juries to infer intention. Therefore injustices where a defendant is convicted of murder despite having only the mens rea for GBH wouldn’t occur. However, this would make the law of murder harder to prove and retribution harder to achieve as the law becomes less strict and more docile.