Murder is the most serious crime that can be committed, and the parameters of the offence have been continually developed through the Common Law over centuries. The offence was recently investigated by the Law Commission Report, Murder, Manslaughter and Infanticide 2006. The Murder Report and judges have described it as ‘a rickety structure set upon shaky foundations.’ A few reasons may be that there is no statutory definition of murder. Rather we rely on a definition based on old common law principles. Coke’s definition is as follows:
"Murder is when a man of sound memory, and of the age of discretion, unlawfully killeth within any county of the realm any reasonable creature in rerum natura, under the King's peace, with malice aforethought, either expressed by the party, or implied by law, so as the party wounded, or hurt, etc. die of the wound or hurt, etc..."
However as it stands this definition is clearly outdated and misleading. Perhaps it would be beneficial in this day and age to have a set statutory definition for murder. I will analyse a few areas which highlight the confusion and difficulty that could be produced as a result of using an ill-fitting definition in this day and age.
Areas of concern
Murder is the most serious offence and therefore has the greatest impact on lives and should be understood by ordinary people.
The language of the law should be accessible and clear to ordinary people e.g. the old Mens Rea of Murder was ‘malice aforethought’ Lord Bridges said it was ‘an anachronistic and now wholly inappropriate phrase.’ Today malice can be described as a desire to harm others or to see others suffer ill will or spite. Ill will or spite isn’t required to be guilty of murder e.g. mercy killing is still murder. Aforethought implies premeditation or preplanning etc, but again this isn’t required for murder e.g. in R v Cunningham repeatedly hitting the victim with a chair. Although the phrase ‘malice aforethought’ is no longer considered in the modern MR for murder, it is clear to see how this confusion could make the law less accessible to ordinary people in particular the jury.
The second issue of accessibility is indirect intent i.e. The Woolin Test, the first part is, was death or serious injury virtually certain due to the D’s act and did the D realize this. The first problem with this is that it’s a two part test, juries tend to dislike two part tests and have difficulty applying them. The issues of accessibility were worsened following Mathews and Alleyne, where it was decided this was an evidential test where the jury are told this isn’t intention but evidence from which they can infer intention.
The MR of Murder is intention to kill or cause serious injury. This reflects two levels of fault i.e. wanting to kill someone is one level of fault, whilst wanting to cause serious injury is a different level of fault.
Lord Edmund-Davies in Cunningham found it ‘passing strange that a situation where serious injury which results in death could result in severe punishment for murder, where in most cases the action would be unlikely to kill.’
Even when the intention is to kill, there can be different levels of fault, as there are many reasons for killing and some are more understandable than others e.g. mercy killing compared to killing for sexual pleasure. For most crimes there’s a maximum sentence and so the judge can take the level of fault into consideration. Murder however has a mandatory sentence, and since the CJA 2003, the judge is further constrained by guidelines as to the maximum sentence.
The sentence for murder is life imprisonment and the problem is that the public simply don’t understand what it means. Many believe life means life i.e. the defendant will remain in custody for the rest of their life, others think it means 25 years, neither is the case. A life sentence is an indeterminate sentence, the judge will recommend a minimum tariff and once completed the offender can apply for parole. If parole is granted the offender is released on license, if the conditions of the licence are broken they will be returned to prison, this license is for life. However, from an ordinary person’s point of view, I don’t think a license for life sounds or looks the same as a person behind bars for life.
Voluntary manslaughter is a partial defense to murder and was created to give judges discretion in sentencing, where the defendant has the MR for murder but has either lost their self-control in killing or suffered from Diminished Responsibility.
The Coroners and Justice Act 2009 abolished the old partial defense of Provocation replacing it with Loss of Control, and Diminished Responsibility was amended.
I will briefly examine why provocation required replacing and examine whether or not Loss of Control was addressed and then examine the reforms for Diminished Responsibility.
The Law Commission described the law on Provocation as ‘profoundly unsatisfactory’. This was for three main reasons. Firstly provocative conduct could be anything said or done which provoked the defendant and this created two issues. Firstly, ordinary, legal and reasonable behavior could become a starting point for a defense to murder e.g. in Doughty a baby crying.
Secondly, the defendant would effectively be able to blame the V’s actions and as a result the victim may not be able to defend him or herself.
Loss of Control has addressed these issues by creating the qualifying trigger, which must be something said or done of an extremely grave character, i.e. not ordinary reasonable behavior.Secondly, leaving the D with a justifiable sense of feeling wronged. The Act goes further than this by excluding certain qualifying triggers such as sexual infidelity, although the case of Clinton has muddied the waters on this.
The second problem is that the defendant required a sudden and temporary loss of temper which created two problems. The first problem is that men tend to react in this way whereas women don’t, particularly ‘battered women’ e.g. Hobson. A defense, particularly on such a serious crime, should not favor one gender over the other. Secondly, the defense was effectively justifying an inability to control temper rather than demanding an ability to control temper.
Loss of Control addresses both of these issues. Firstly, it doesn’t have to be sudden and temporary and secondly a qualifying trigger includes a fear of serious violence. So the defense is equally available to men or women. Secondly, Loss of Control emphasizes that it will only be allowed in extreme circumstances.
The third issue with Provocation is that judges had no control over its use. If there was evidence indicating provocative conduct the defense had to be put to the jury even if it was ridiculous or offensive e.g. Doughty. This ran a risk of bringing the law into disrepute.
Loss of Control can only be considered if the judge considers that there is significant evidence of a qualifying trigger to warrant putting the defense to the jury. Loss of Control seems to have addressed the problems with Provocation. One problem with Loss of Control follows as a result of Clinton. The Coroners and Justice Act 2009 specifically states that sexual infidelity should be disregarded as a qualifying trigger. Yet in Clinton the Court of Appeal allowed evidence of sexual infidelity to put a qualifying trigger into context and this seems to have undermined the will of Parliament.
Diminished Responsibility was created as a direct result of problems with the law on Insanity; insanity is a legal defense and is a very narrow in its application. As a result, defendants with serious psychiatric illnesses amounting to medical insanity were unable to use the defense e.g. in Windle.
Diminished Responsibility is also very useful in the law of Murder. It allows judges to avoid the mandatory life sentence in cases where it is not deserved e.g. in Hobson’s case of a battered wife, perhaps now it may have been decided differently.
The Law Commission recognizes this law’s usefulness but it also recognizes the defense was becoming too wide, too easy to use and therefore too easy to abuse.
So the Coroners and Justice Act 2009 merely amended the law for Diminished Responsibility to tighten it up. Originally there had to be an abnormality of the mind and this could be anything a reasonable person considered abnormal e.g. extreme PMT, this has been tightened up by changing it to an abnormality of mental functioning due to a recognized medical condition. It has also been tightened by the fact that the abnormality of mental functioning must not only substantially cause the D to act as they did but also significantly impair the D’s ability in three ways.
As a result Diminished Responsibility has therefore been tightened up but still tempers the severity of the mandatory sentence in cases where it can be justified.
Hopefully by highlighting some of the issues that may cause difficulty in the use of murder and manslaughter, it will help you identify some areas that need reform or require further discussion and thinking about.