In this essay I will be criticising the law on murder including voluntary manslaughter and suggesting how it can be unsatisfactory as it can be quite confusing for the people who need to be applying the sentence for example the jury. Murder is a common law offence which means the law is made due to the cases however, it should be written down which means it would then be a statute law, which was suggested by Lord Coke in the 15th Century.
The government have also acknowledged the fat that the law of murder needs to become a statute law, they have also asked the law commissions to research this area so that they can produce a report on the possible reforms. The major criticism is regarding the mandatory life sentence, this is criticised by both law professionals and the law commissions.
It is hard for a judge to discriminate between different types of killings but will have the same sentence no matter if it’s an act of mercy killings when your partner is suffering an illness where there’s no hope that they will survive and the partner decides to switch the machine off, however they will receive the same punishment as say the Yorkshire ripper (Sutcliffe).
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A trial judge cannot even tell the difference between the different kinds of murder when imposing the sentence.
Judges should be allowed to be given more authority when depending on the circumstances on the case for them to think of an appropriate sentence. A famous legal quote quoted by Hogan, which said “the sentence must be proportionate to the offence – court can achieve justice between one offender and another. ” This was quoted in the 1980s it basically means is the worse the crime the worse the sentence which should be issued, many people still believe that this is how the law should be. Hogan wanted each case to be looked at separately and not compared which suggests that case law would then be demolished.
In loss of control sexual infidalilty should not be included when looking at loss of control, this is absurd as the jealousy and anger which comes from sexual infidaility would technically cause loss of control, but this factor is told to be ignored. A big problem regarding the law of murder is the actus reus. The actus reus of murder is “the unlawful killing of a reasonable person in being” now looking at this a reasonable being is classed as a human being, however this does not include a foetus, even though the Abortion Act 1965 clearly states that a foetus is a human being at 28 weeks.
This is very unclear as the laws contradict themselves and can be confusing for the acting jury and judges that are present as they will get to choose whether they feel that it is just or not, which means that the outcome on similar cases can possibly have totally different outcomes as it would be opinionated. For the laws which contradict each other for example the law on killing a foetus should definitely be relooked and reconsidered as this can cause (and/or may already do) confusion in the courts room as one law is saying one thing and the other law is going against that.
People such as the jury who are not lay people may only understand bits of the law or not at all which can then result in a wrong verdict being given. The last criticism I will be looking at the concerns raised when looking at intention and oblique intention it is known to be “the most basic concept of criminal law which remains so unclear” this is because of the introduction of the mens rea “malice aforethought express or implied” which is very difficult for the jury to understand.
Even the judges are unclear as they tend to adjust it from one case to another. Now looking at all the criticisms we see that there is a lot that can be done to improve the law regarding murder and it has been suggested that murder should be divided into two separate offences; First degree murder – which would be the intention to kill and would carry out the life sentence. And Second degree murder – which would be the intention to cause Grievous Bodily Harm (GBH) knowing that death, would eventually occur.
This would then reform the problem that occurs with the mandatory life sentence being applicable to every murder sentence no matter how much gruesome or truthful it may be. The new law has proposed a new defence to law of Diminished Responsibility which they say should be satisfactory. The questions that arouse are not what the law commissions intended to say. The terms that are used in some of the elements in diminished responsibility are said that they should no longer be needed as the definition says it all.
Issues relating mercy killings have still not yet been discussed, the law commissions’ wishes to raise this issue but the government have ignored the idea for this to be implemented. This would be help the people who are in desperate need to be taken out of all the suffering and hurt they are going through. Loss of control is also a new law which is an updated version of the defence that used to be available to murder which was Provocation. It says that loss of control includes the objective test which is actually meant to be subjective test which means that it is not greatly improved.