Despite some recent reforms, there are still criticisms to be made of the current law on murder and voluntary manslaughter. Consider relevant criticisms of that law, and suggest any reforms that may be appropriate – Model Answer

Posted: December 16, 2012 in A2, Diminished Responsibility, Evaluation questions, Exam Support, Loss of Control
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Murder is the most serious criminal offence someone can commit, and yet it is defined not by statute but by Coke’s Institutes – the words of a barrister some 250 years ago.  Much of these words, like malice aforethought, are inaccurate and case law over the years has shown that the law on murder and voluntary manslaughter requires clarification.


The physical element of murder, the actus reus, simply requires the D to unlawfully kill another human being.  Deceptively simple because complications, a lack of clarity & potentially a lack of justice arise because of issues over causation.  The legal test for causation laid down by Chesire makes the chain of causation very difficult to break.  Therefore a D could find himself a murderer simply by the misfortune of living near a poor performing hospital.  Similarly a D could find himself a murderer simply because his victims had a particular medical condition or religious belief, as in Blaue.


This when taken into account with the constructive malice element of the mens rea for murder could result in injustice.  R v Vickers established that an intention to commit GBH was sufficient for the mens rea of murder.  This means that a D could be guilty of murder, not having intended to kill anyone and not having caused truly life threatening injuries.  Considering the bar for a guilty verdict is set so high when there is no direct intention, as in Woollin, it seems unbalanced that this set of event could result in a murder conviction.  The concept behind specific intent is that the D should specifically intend to commit that crime, the inclusion of GBH into the mens rea for murder undermines this.


A conviction for murder used to potentially result in a sentence of death.  In recognition of this and the fact that although the D has both the mens rea and actus reus for murder there are sometimes extenuating circumstances and the D should not be sentenced to death.  It is for these reasons that the partial defences of loss of control and diminished responsibility were introduced but without a death penalty the need for them is greatly reduced.  It is arguable that abolishing the mandatory life sentence for murder would be a simpler way of recognising the complexities behind D’s motives.  Although it is possible this then could leave acquittals open to particularly sympathetic juries.


The defence of diminished responsibility is a very subjective one that allows the D to be judged on his own terms.  It can be argued that the defence goes too far and provides an incentive for people not to behave normally or exercise self restraint because, if they don’t, the defence of diminished responsibility would be open to them as the recognised medical conditions permitted is so wide to include almost everyone.

Cases such as the recent case of the 99 year old mercy killer Heginbotham highlight how the defence of diminished responsibility can be abused, albeit for clearly altruistic reasons.  In this case there was very limited evidence of any mental abnormality.  Compare this to the case of the Yorkshire Ripper Peter Sutcliffe who clearly was suffering from a mental abnormality but was denied the defence.  Despite being uncomfortable to consider as the law stands the defence should have been available to him.  If society doesn’t accept this but would like to protect Ds such as Heginbotham then the defence must be reformed.

When considering the objective element of the defence of loss of control it can be argued that a person with a normal degree of tolerance and self-restraint in the circumstances of D would never kill.  By definition acting with a normal degree of tolerance is restraining yourself from such action.  Equally the removal of “sudden” from the defence seems hollow.  It’s intention was to open the defence to more women but how could a loss of control ever be anything but sudden?  By definition a loss of control is something that is sudden.

It also seems strange for the defence to exclude sexual infidelity.  It is hard to imagine a more common cause for a loss of control than sexual infidelity when one considers the number of murders that are a result of domestic violence.  Indeed the problem with this exclusion were highlighted by LJ Judge in R v Clinton.  He held that sexual infidelity should be accepted as a qualifying trigger when taken in conjunction with something else, going as far as making clear that a failure to do so would create miscarriages of justice.

It is clear then that the law of murder needs reform.  The first submission is that different degrees of murder are established through statute that recognise the difference between a D who intends to kill and kills and a D who intends serious harm and ends up killing.  Different sentences would have to reflect the nuances in the law, reserving the mandatory life sentence for those who intend murder. 

These different degrees of murder could incorporate an understanding of Ds’ motives when killing, accepting that there can be mitigating circumstances when someone kills.  If not then the partial defences need to be reformed.  Diminished responsibility needs to protect those with mental abnormalities, if that is what it is intended to do.  Loss of control must include sexual infidelity if justice is to avoid miscarriages in the future.


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