Voluntary Manslaughter Criticisms and Reforms

10 October 2016

Discuss the criticisms which may be made on the law on murder (including voluntary manslaughter) Suggested answer It is difficult to divorce criticism of the law on murder without also considering the relevant partial defences under the Homicide Act 1957. This point was made by the Law Commission in August 2006 when they published the results of their review on provocation and diminished responsibility. The law on murder is “a mess” and should be comprehensively reviewed for the first time in more than half a century” stated the Law Commission in its 2006 report. The Law Commission said a major overhaul was required – including a re-think of whether murder should always carry a life sentence – because of “the breadth and depth of discontent” with the current law. Results of a consultation exercise showed 64 respondents out of 146 – including 21 judges – believed a mandatory life sentence for every case of murder was “indefensible and should cease”, the commission said.

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They said it was incorrect to roll all types of murder from serial killings to mercy killings into one single category. They proposed two tiers for murder. First degree for murder with intent and second degree murder where there was intention to cause serious harm or one of the partial defences. A logical system would identify the most serious forms of killing and call them murder, but it might also attempt to identify other forms and grade them for sentencing.

This could be somewhat similar to the system in the US where Homicide offences are dealt with in terms of “degrees” with each degree linked to a tariff sentence in the interests of consistency. The offence of murder has long been criticised for its lack of cohesion. It is a common-law offence developed through decisions in many cases over long periods of time. These cases have in turn led to uncertainty and ambiguities, which required further cases to settle. Critics argue that it is essential to have a clear definition of murder, as it is the most serious of criminal offences.

The definition of murder is considered to be outdated using words such as ‘living human being’ which in the 18th century when the definition was first made could only be a person alive. However, with the advancement of technology and medical knowledge the scope of the meaning of these words now cover the opposite ends of existence, ie the foetus and the person being kept technically alive by a life support machine. The cases of Attorney General Reference (No3 1994))1996 and NHS Trust v Bland demonstrated the moral as well as the legal dilemma this definition posed and the decision was left to the courts rather than in the hands of Parliament.

In addition the phrase ‘malice aforethought’ is very misleading as the word ‘malice’ implies some type of ‘ill will’ whereas the legal meaning does not reflect this. The mens rea of murder has long needed clarification. At present there is still some doubt as to how the Judge should direct the jury on the issue of oblique intent as permitted under s8 CJA 1967. Despite the decision in Woollin this issue remains controversial following conflicting decisions in Moloney, Hancock and Shankland and Nedrick. Furthermore, the mens rea of murder can be satisfied when the defendant intends only to cause GBH.

This means that a defendant could be convicted of murder when he or she had no intention of causing death or had not even considered the possibility that it may occur, (Hancock v Shankland) . This has been one of the main arguments put forward by the Law Commission to introduce a two tier system for murder in order to distinguish the types of mens rea. However, as well as criticising the mens rea of murder and sentencing the partial defences to murder under the Homicide Act 1957 also came under much criticism in particular the defence of provocation under s. of the 1957 Act. The law commission proposed to abolish this defence and replace it with ‘loss of control’, the Government did act upon this and in October 2010 the Coroners and Justice Act 2009 came into force. Under this act the defence of Provocation has been abolished (s. 54). The requirement of the loss of control needing to be ‘sudden’ has been removed (s. 54(2)) this change will make the defence more available to abused partners who kill in self-defence.

This was an issue in the Ahluwalia case where eventually a diminished responsibility plea was accepted after a lengthy appeal and retrial. The new defence has also tightened the law (under s. 55(6))so the loss of control defence can not be used in cases where someone has killed for revenge – as in the case of Ibrams and Gregory or for marital unfaithfulness as in the case of Davies. This may now have dealt with the long term suggestion that, due to its historical background and the nature of men as more likely to “snap” in anger, that provocation was a male orientated defence.

Another major criticism of the previous defence of provocation was the reasonable person test (objective test). Prior to the new defence this part of the provocation defence was left in confusion with the House of Lords decision in Smith(Morgan) conflicting with the Privy Council decision in Holley and then the Court of Appeal following Holley rather than Smith(Morgan) thus departing from precedent. This may now be resolved because the new defence of loss of control under s. 54(1)(c) seems to confirm the legal principle set out in Holley and Camplin.

The major change with the defence of ‘loss of control’ compared to the old defence of provocation is that the loss of control must be caused by a ‘qualifying trigger’ defined under s. 55 of the 2009 Act which is either Loss of control attributable to 1. D’s fear of serious violence from V against D or another identified person; or 2. Attributable to a thing or things said or done or both which: (a) amounts to circumstances of an extremely grave character; and (b)caused D to have a justifiable sense of being seriously wronged. At first, this requirement seems to help cases such as Bailie.

However, the under s. 54(6) the decision as to whether there is evidence of loss of control for the defence to be raised is left to the trial judge. Therefore, although at first it appears that the new defence seems to have helped ‘abuse’ cases such as Ahluwalia and Thornton the defence seems to be very objective giving control of the defence to the trial judge which may possibly go against the spirit of the intended reform but only time will tell once cases are tried under the new Act. The partial defence of Diminished Responsibility has also come under some reform whereby s. 2 of 2009 Act amends s. 2 of the Homicide Act 1957. The main change related to evidence that there has to be an “abnormality of mental function (as opposed to the mind) which must be caused by a “recognised medical condition” (s. 52(1)(a&b)). This new requirement does take into account changes in medical knowledge and possibly extends to the cases such as Reynolds where post-natal depression and pre-menstrual tension were considered to be abnormalities of the mind but possibly also extends to learning difficulties.

The amended section under s. 52(1B) seems to also imply that more emphasis will be placed on psychiatric evidence to decide whether the abnormality of mental function substantially impaired the defendants ability. Once again it is a new amendment and only time will show whether the change has improved the old law which had been criticised as to “easy” to plead. However, despite these changes to the partial defences to murder which have been long overdue the main criticism relating to the offence of murder still remains.

That is in relation to the mandatory life sentence being imposed on all murders thus making no distinctions. In September 2010 (one month before the amended law to the partial defences came into force) the Director of Public Prosecutions (DPP), Keir Starmer supported the proposal to reform the law on murder so that it adopts a ‘US’ style of degrees of murder as mentioned above, whereby first degree murder would be for defendants who intend to kill and second degree where the evidence shows an intention to cause serious harm.

This statement made by the DPP only highlights that the law on murder is still in need for reform as the main issues relating to the offence of murder stressed by the Law Commission report in 2006 has yet to be dealt with by Pariliament.

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