Arguments for and against a reform of the law of murder.pdf

M32100 CRIMINAL LAW Student ID Number: 2121163 /ERASMUS Student
1 What are the arguments for and against a reform of the law of murder?
I. Introduction
There is no statutory definition of murder. The definition of murder is not the result of
legislation but the result of jurisdiction made in cases over hundred years . Most often cited
1
is the definition of Coke :
2
“Murder is when a man of sound memory, and of the age of discretion, unlawfully killeth
within any country 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 the law, so as
the party wounded, or hurt, etc. die of that wound or hurt, etc. within a year and a day
after the same”. The modern definition of murder is “unlawful killing of another person
under the Queen’s peace, with malice aforethought” . This definition of murder
3
encompasses killings that have been committed through an intention to kill or to do
grievous bodily harm. But even if the defendant had no premeditation to jeopardize life
respectively did not take account of the possibility of the victim’s death caused by his act,
the act is still comprised by the above definition of murder. However, this circumstance
seems to be inequitable and the definition of murder too wide. Considering, that killings
where the defendant had no intention to kill or cause injury but detected a serious risk due
to his conduct, are not included, the definition seems also be too narrow. With respect to
the circumstances depicted above and the fact that the Law Commission has suggested a
reform of the definition of murder: Do we need a new reform of the law of murder? The
current law on homicide has a plain structure. There is on the one hand murder that attracts
a mandatory life sentence and on the other hand manslaughter that attracts a discretionary
sentence .
4
At the beginning, I would like to depict the current law of homicide and what critics
Law Commission, A New Homicide Act for England and Wales? A Consultation Paper (Law Com No 177, 2006).
1
Coke E, `Institutes’ 3 Co Inst 47; Ormerod D, Laird K, Smith and Hogan’s Text, Cases and Materials on Criminal
2
Law (14th edn, Oxford University Press 2014), Ch14.
Jefferson M, Criminal Law (12th edn, Pearson Education Limited 2015), p457.
3
Herring J, Great debates in criminal law (3rd edn, Palsgrave Macmillan 2015), p124.
4
1

complain about it. Afterwards I would like to discuss options for reform and finally I would
like to work out arguments for and against a reform of the current definition of murder.
II. The current law of homicide
The current law of homicide subdivides homicide offences in murder and manslaughter . For
5
the actus reus of murder the defendant must unlawfully kill another person under the
Queen’s peace . It is not relevant what type of conduct causes the death. Sufficient is rather
6
any conduct that causes death . The mens rea of murder is satisfied when the defendant
7
kills with ‘malice aforethought’ . ‘Malice aforethought’ means that the defendant must have
8
the intention to cause death or grievous bodily harm . The killing must be predetermined
9
and there mustn’t be justification or excuse . Murder attracts a mandatory life sentence :
10 11
Every person who is convicted of murder faces automatically the life imprisonment .
12
Manslaughter has a wider spectrum of conduct and covers “all unlawful killings that fall
short of murder” . Manslaughter means to kill without having deliberation, premeditation
13
and malice . The law distinguishes between voluntary manslaughter and involuntary
14
manslaughter .
15
Whereas murder is considered as the most serious crime and must be passed by a
mandatory life sentence, manslaughter covers all unlawful killings except of murder and
there is a discretion regarding the sentence .
16
III. Complaints about the current law
As already broached, there are several complaints about the current definition of murder.
The actus reus of murder is not subject of controversy. It is self-evident that you can only
be regarded as murder when you have killed another human being. But controversially
discussed is the mens rea of murder. The fact that an intention to kill satisfies the mens rea
Child J, Ormerod D, Smith and Hogan’s Essentials of Criminal Law (Oxford University Press 2015), p 161.
5
Child J, Ormerod D, Smith and Hogan’s Essentials of Criminal Law (Oxford University Press 2015), p147.
6
7
Ormerod D, Laird K, Smith and Hogan’s Text, Cases and Materials on Criminal Law (14th edn, Oxford University
8
Press 2014), p567.
9
Titus Reid S, Criminal Law (9th edn, Oxford University Press 2012), p140.
10
11
12
13
Simester AP, Spencer JR, Sullivan GR, Virgo GJ, Simester and Sullivan’s Criminal Law: Theory and Doctrine (5th
14
edn, Hart Publishing Ltd 2013), p391.
Child J, Ormerod D, Smith and Hogan’s Essentials of Criminal Law (Oxford University Press 2015), p161
15
Child J, Ormerod D, Smith and Hogan’s Essentials of Criminal Law (Oxford University Press 2015), p 161.
16
2

of murder is not remarkable. Remarkable is the fact that an intention to cause grievous
bodily harm is sufficient to be convicted of murder. That means that a defendant can be
convicted of murder although he didn’t even have the intention to cause death. This
circumstance can lead to injustices.
Professor John Spencer claims that the basic offence is too wide while the defences are too
narrow . The fact that the sentence is a mandatory life sentence would increase the
17
injustice . I would like to depict the several complaints made by the critics:
18
1. Definition of murder is too wide
One objection about the current definition of murder is that the definition is too wide. The
critics claim that the current definition of murder encompasses those offenders who should
not receive the label of murder and should not face a mandatory life sentence .
19
Even if the offender had no intention to endanger life and didn't take into account that his
misconduct could result in the victim’s death, his killing would be captured by the current
definition of murder.
The conviction for murder does not only engender many years of prison. But even if the
offender has served his sentence he carries the stigma of murder for the rest of his life.
Reckless drivers who know that their driving had been careless would automatically become
murderers if their driving leads to death .
20
In Woolin a defendant, who killed his baby by throwing it on to a hard surface and didn’t
have the intention to kill, was convicted of murder by the trial judge due to the assumption
that he must have been aware of the substantial risk caused by his serious injury . The
21
defendant appealed against the conviction and claimed that the judges interpretation of
murder is too wide, which was rejected by the Court of Appeal. The House of Lords,
however, allowed the appeal and referred to virtual certainty set out by the Nedrick
Guidance and made clear that the jury must find whether the defendant has foreseen a
virtual certainty respectively whether the defendant had an oblique intention .
22
Spencer J, ‘Messing up Murder’ (2008) Archbold News 5, p5.
17
Spencer J, ‘Messing up Murder’ (2008) Archbold News 5, p5.
18
Molan M, Cases and Materials on Criminal Law (4th edn, Routledge-Cavendish 2008), p177.
19
Law Commission, Murder, manslaughter and infanticide (Law Com No 304, 2006), p21.
20
Woollin [1999] 1 AC 82; Law Commission, A New Homicide Act for England and Wales? A Consultation Paper
21
(Law Com No 177, 2006).
22
3

2. Definition of murder is too narrow
Another complaint about the current definition of murder is that the definition is too narrow.
The current definition of murder would exclude misconducts where the offender didn’t have
the intention to kill or to cause serious injury. His misconduct is only regarded as
manslaughter but should be regarded as murder.
For example a terrorist, who plants a bomb and seeks for public attention but doesn’t want
to kill anyone and who instead warns the police, wouldn’t be regarded as murder under the
current definition, if someone dies by an accidental detonation .
23
Many people’s gut say that this terrorist should be regarded murder. Professor Antje Pedain
claims that those terrorists could have the required intention for murder if you take heed of
the fact that they have engendered a risk of death and have shown an apathy for the life of
other human beings . However, the current definition of murder wouldn’t encompass these
24
terrorists.
3. Law on manslaughter is too wide
The complaint about the law on manslaughter is that it encompasses a very wide spectrum
of killings . Due to that wide range manslaughter is alleged to have lost its function as a
25
label . The fact that some of the defendants who were convicted of manslaughter face a life
26
sentence whilst other defendants only face a probation would underpin the circumstance of
encompassment of a wide range of killings .
27
IV. Law Commission’s Reform proposal
The Law Commission was directed to recommend a reform that aimed at clarification of
several elements of the law of murder . In 2006 the Law Commission published a final
28
report of recommendation of a new structure for the law of murder . The Law Commission
29
proposes that murder and manslaughter should be substituted by first degree murder as the
top tier, second degree murder as the middle tier and manslaughter as the lowest tier .
30
Ormerod D, Laird K, Smith and Hogan’s Text, Cases and Materials on Criminal Law (14th edn, Oxford University
23
Press 2014), p542.
Pedain A, ‘Intention and the Terrorist Example’ (2003) Crim LR 579.
24
25
26
27
Fitz-Gibbon K, The Palgrave Macmillan Homicide Law Reform, Gender and the Provocation Defence (Macmillan
28
Publishers Limited 2014), p124.
Law Commission, Murder, Manslaughter and Infanticide (Law Com No 304, 2006).
29
Law Commission, Murder, Manslaughter and Infanticide (Law Com No 304, 2006), p19.
30
4

1. First Degree Murder
If a person intends to kill or intends to cause serious injury and is aware of the risk of
causing death by the conduct, his act is qualified as First degree murder . The judge must
31
pass a mandatory life sentence .
32
2. Second Degree Murder
Second degree murder is a murder where the defendant killed with an intention to cause
serious injury or had the intention to cause some injury, fear or risk of injury and has been
aware of serious risk of death . The second situation in which second degree murder can be
33
committed is a killing with an intention to cause injury, fear or a risk of injury and where the
offender was aware of the serious risk of death by his conduct . Second degree murder can
34
also be committed by a killing with an intention to kill or to cause serious injury and where
the offender had the awareness of the risk of death but can plead loss of control or
diminished responsibility . Second degree murder carries a discretionary life maximum
35
sentence .
36
3. Third tier: Manslaughter
To the law of manslaughter the Law Commission didn’t make any major changes :
37
When the defendant killed gross negligently or the act was itself criminal and the defendant
intended to cause injury or was aware of the serious injury of a criminal act, he will be
sentenced to manslaughter. Manslaughter also carries a discretionary life maximum
sentence .
38
V. Arguments for and against a change
I would like to depict the arguments for and against a change of the law of murder:
On the one hand the argument in favour of the current law of murder is the message that it
is sending out: The law is willing to see people convicted if they are part of violence that
ends in somebody’s death. In that respect draconian penalties seems to be a necessity.
Offenders who commit a crime that ends up in the death of a person should bear the
Horder J, Homicide and the Politics of Law Reform (Oxford University Press 2012), p96.
31
Elliott C, Quinn F, Criminal Law (9th edn, Dorset Press 2012), p73.
32
Elliott C, Quinn F, Criminal Law (9th edn, Dorset Press 2012), p73.
33
Loveless J, Criminal Law Text, Cases and Materials (4th edn, Oxford University Press 2014), p257.
34
Loveless J, Criminal Law Text, Cases and Materials (4th edn, Oxford University Press 2014), p257.
35
Reed A, Fitzpatrick B, Seago P, Criminal Law (4th edn, Sweet&Maxwell 2009), p341.
36
Wilson W, Criminal Law (5th edn, Pearson Educated Limited 2014), p394.
37
Reed A, Fitzpatrick B, Seago P, Criminal Law (4th edn, Sweet&Maxwell 2009), p73.
38
5

consequences.
A disregard for other people’s life shown by the misconduct brings the offender in a position
where he might deserve the label of murder .
39
Assuming that every serious injury entails a risk of death, it is impossible to stab another
person without taking the risk of killing him . Any serious harm caused with intention has a
40
nature that the offender made the possibility of death as an consequence of his act
forseeable . By a distinction between first and second degree murder you would lose the
41
opportunity to answer with draconian law if the defendant wasn’t aware that his misconduct
could lead into death. A long-established belief is that every person who takes someone’s
life must face a life sentence . However, Professor Mitchell and Professor Roberts found out
42
in their researches that there is not a vast majority of the public that is supporting an
automatic sentence of all convicted murders to life imprisonment, as originally assumed .
43
The public might also have difficulties with the understanding of the current system .
44
Furthermore it is necessary to ensure that the law of murder is not too complex . The legal
45
structure must be clear so that even non-lawyers have a chance to understand it.
It is impossible to look inside the defendant’s mind and to see whether he was aware of the
risk of causing death. Instead a court or a jury is in charge to sight the evidences and to
decide about the defendant’s foresight . Questions of fact, unlike questions of law, are
46
decided by the jury in the law of the United Kingdom . The juries must be able to
47
understand and apply the law and a fine-grained law of murder could lead to problems,
especially when the jury is faced with several offenders . If the law is not clear enough or
48
the distinctions between the offences too fine-grained, it bears the risk that the prosecution
accepts a guilty confession to a lesser offence albeit the evidence shows the guilt of a more
39
40
41
BBC, ‘Lord Chief Justice urges free vote on murder reform’ (BBC News, 6 December 2011) <http://
42
www.bbc.co.uk/news/uk-16048082>, date accessed 11/01/2016.
Mitchell B, Roberts J, Public Opinion and Sentencing for Murder (2010): empirical work finding majority public
43
support for removing the mandatory sentence, p6.
44
Simon J, How should we punish murder, 94 MARQ. L. REV. 1241 (2011), p1294; Law Commission, Murder,
45
manslaughter and infanticide (Law Com No 304, 2006), p23.
46
Ashworth, A, Redmayne, M, The Criminal Process (4th edn, Oxford University Press 2010), p339.
47
48
6

serious crime .
49
On the other hand the distinction between first and second degree murder is not a new
idea. On the contrary, in the law of the United States there already exists such a distinction
between first and second degree murder, albeit used in a different way than recommended
in the Law Commission’s proposal . Criminal trials in the United States are also dominated
50
by a jury system and the juries do not struggle with a complexity of the law of murder.
None of the people who are involved in trial ever complaint about the complexity of a three-
tier structure .
51
An argument in favour of the current definition of murder is the deterrent effect that the
punishment for grievous bodily harm resulting in death has: If people know that causing
harm to another person could lead to a conviction for murder in the worst case, then they
are deterred and think twice whether it is worth to cause serious injury. As the society
regards a deterrent effect of punishment for grievous bodily harm resulting in death as
positive, it would also serve a criminal purpose.
What also speaks against a change of the current definition of murder is the fact that a
change would make it easy for murderer to evade a conviction for murder: As it is
impossible to look inside the defendant’s mind it is exceedingly difficult to prove that the
defendant had an intention to kill. In that situation the defendant could simply deny that he
had an intention to kill in order to evade a conviction for murder. For the court it would be
very difficult to prove the opposite. Under the current definition of murder you could still
convict the defendant for murder, if he denies that he had an intention to kill, by proving
that he had an intention to cause grievous bodily harm.
An argument against the current definition of murder is the fact that the definition of
grievous bodily harm is not precise enough, especially not precise enough to legitimize a
conviction for murder. It is important that the defendant knows what degree of harm is
required if the intention to cause grievous bodily harm satisfies the mens rea of murder.
But the other way around, it may be argued that the definition of grievous bodily harm
didn’t give rise to any problems in the past and therefore does not need to be changed on
Simon J, How should we punish murder, 94 MARQ. L. REV. 1241 (2011), p1294.
49
Clark D, Tuğrul A, Introduction to the Law of the United States (2nd edn, Kluwer Law International 2002), p153.
50
Simon J, How should we punish murder, 94 MARQ. L. REV. 1241 (2011), p1294 - 1295.
51
7

this account.
Problematic is that a defendant could be convicted of murder even if he did not recognise
the risk of death and didn’t have the idea that his act might cause death . It is arguable
52
why a person, who merely had the intention to cause harm, should carry the stigma of
murder and face the mandatory life sentence, because the harm results in death.
In that respect the mandatory life sentence wouldn't be necessary, not even in respect of
deterrence. The defendant would carry the label of murder for the rest of his life, which is
inappropriate in relation to his intention respectively guilt. It would have negative impacts
on his personal life, his family and potentially his career. The defendant wouldn’t find the
way back into a normal life. He would lose the chance of rehabilitation: With a label of
murder it is almost impossible to get reintegrated into society. For an offender, who merely
had the intention to cause injury and who’s likelihood of rehabilitation would be decent, this
is close to a disaster.
Someone who reasonably believed that his misconduct wouldn’t lead to the death of
another person respectively that the injury he caused wasn’t serious, would be equated to
an offender who committed serial murders .
53
The society distinguishes both cases and draws a line between both offenders. However, the
law of murder, at present, treat both offenders equal regarding the sentence. Both offenders
would face the life sentence. In terms of culpability there is a large gap between an
intention to kill and an intention to cause serious injury. Implementing a three-tier structure
could bridge this gap . The fact that cases where the defendant causes serious bodily harm
54
and the defendant intends to kill are not distinguished can lead to injustice.
The current law of murder has a huge problem regarding the mandatory life sentence:
Judges don’t have a discretion if the offender has been convicted of murder. The offender
automatically faces the life sentence. Instead of facing a lower sentence that corresponds to
the intention he had, the defendant faces a mandatory life sentence.
Judges can’t give a lesser sentence if there are circumstances that mitigate the crime. A
reform of the law of murder in the direction of a three-tier structure could open the judges
52
53
54
8

the possibility of a discretionary power.
Second degree murder as a middle tier would attract, unlike first degree murder, a
discretionary sentence and would give the judges the opportunity to give a lesser sentence
if the defendant wasn’t aware that his conduct could lead to the death of another person.
Another argument against the current law of murder is the fact that every person who
intentionally causes harm couldn’t be convicted for murder unless you prove that he was
aware that his misconduct could end in death. You could only convict the defendant for
manslaughter.55
Furthermore, the argument in favour of a reform is providing the law of homicide with a
greater order, clarity and fairness and increasing the intelligibility and clearity in terms of
differences between the individual offences . With a two-tier law of murder it seems to be
56
impossible to achieve this goal. A further tier could give rise to greater order, clarity and
fairness . In fact, it would be impossible to draw the line between murder and
57
manslaughter if you do not establish a further tier . A three-tier law of murder could
58
contribute to a law of murder that the public would understand .
59
Furthermore, some of the rules of murder has become rickety and hasn’t been changed for
many hundred years and therefore need a reform and other rules have been changed so
often that they aren’t clear respectively certain anymore .
60
The above arguments show, that the current definition of murder gives rise to several
problems. Some of the problems, as for instance the automatic life sentence for every killer,
are so grave that a change is urgently necessary.
Nonetheless there are solid arguments for the current definition of murder to stay as it is:
The law is answering with draconian penalties if someone is committed in a crime that leads
to another person’s death. Simultaneously potential offenders could be deterred. Murderers
don’t have the chance to evade a conviction for murder by claiming that they didn’t have
the intention to kill. However, the risk that the law of murder could become too complex, is
not an argument for leaving the current definition of murder as it is.
55
56
Molan M, Cases and Materials on Criminal Law (4th edn, Routledge-Cavendish 2008), p180; Law Commission,
57
Murder, manslaughter and infanticide (Law Com No 304, 2006), p40.
58
59
60
9

The problems caused by the current definition of murder outnumber the arguments for the
current definition.
Especially, the fact that someone, who merely had the intention to cause grievous bodily
harm carries the label of murder for the rest of his life, shows how unjust results the current
definition of murder can cause.
The injustice becomes also apparent, when an offender who killed due to his carelessness
faces the same life sentence as a serial killer. Only the most serious killings should attract a
mandatory life sentence. For less serious killings there should be a discretionary life
sentence .
61
VI. Conclusion
In conclusion, the arguments for The Law Commission’s proposals outweigh the
counterarguments. The law of murder should have greater flexibility, order and clarity. This
goal cannot be achieved by the current two-tier law of murder. As depicted, the two-tier
structure leads to a definition of murder that is on the one hand too wide and on the other
hand too narrow. A reform of the current definition of murder would provide more flexibility,
order and clarity. It would make sure that there is an adequate relation between the
conviction and the misconduct.
The separation of first and second degree murder allows the narrowing of first degree
murder and thus of the mandatory life sentence. First degree murder would only capture
killings where there is an intention to kill. Offenders who just intend to cause serious harm
would be second degree murder and would face only a discretionary sentence .
62
The mandatory life sentence shouldn’t be faced by offenders who only have the intention to
cause grievous bodily harm. It wouldn’t be adequate if those offenders carry the stigma of
murder for the rest of their life. Instead murder respectively first degree murder should be
constrained to killings where the offender has an intention to kill or at least the awareness
of the risk of causing death. Where the offender is only careless he should face a
discretionary life sentence. By the distinction between first degree murder and second
degree murder the Law Commission differentiates those cases where the offender had an
intention to kill or cause serious injury from those cases where the offender was careless.
61
Rogers J,’The Law Commission’s Proposed Restructuring of Homicide’ (2006) 70 J Crim L 223.
62
10

However, the current law of murder just distinguishes between murder and manslaughter,
which is not sufficient. Judges should have a discretion in terms of sentence with a murder
conviction. A killing shouldn’t attract a mandatory life sentence at any price. Instead judges
should be in a position where they can give a lesser sentence if there are circumstances
that mitigate the crime, for instance killings where the defendant merely had the intention
to do serious injury and didn’t have the awareness of a risk of causing death. A reform of
the law of murder would bring an end to an automatic life sentence for every killer. The
government should implement these proposals made by the Law Commission. Unfortunately
at the current time it appears unlikely that the government implements these proposals.
11

Bibliography
Ashworth A, Horder, J, Principles of Criminal law (7th edn, Oxford University Press 2013)
Ashworth A, Redmayne M, The Criminal Process (4th edn, Oxford University Press 2010)
BBC, ‘Lord Chief Justice urges free vote on murder reform’ (BBC News, 6 December 2011)
<http://www.bbc.co.uk/news/uk-16048082>, date accessed 11/01/2016
Child J, Ormerod D, Smith and Hogan’s Essentials of Criminal Law (Oxford University Press
2015)
Coke E, ´Institutes’ 3 Co Inst 47
Clark D, Tuğrul A, Introduction to the Law of the United States (2nd edn, Kluwer Law
International 2002)
Elliott C, Quinn F, Criminal Law (9th edn, Dorset Press 2012)
Fitz-Gibbon K, The Palgrave Macmillan Homicide Law Reform, Gender and the Provocation
Defence (Macmillan Publishers Limited 2014)
Herring J, Great debates in criminal law (3rd edn, Palsgrave Macmillan 2015)
Horder J, Homicide and the Politics of Law Reform (Oxford University Press 2012)
Jefferson M, Criminal Law (12th edn, Pearson Education Limited 2015)
Law Commission, A New Homicide Act for England and Wales? A Consultation Paper (Law
Com No 177, 2006)
Law Commission, Murder, manslaughter and infanticide (Law Com No 304, 2006)
Loveless J, Criminal Law Text, Cases and Materials (4th edn, Oxford University Press 2014)
Molan M, Cases and Materials on Criminal Law (4th edn, Routledge-Cavendish 2008)
Mitchell B, Roberts J, Public Opinion and Sentencing for Murder (2010): empirical work
finding majority public support for removing the mandatory sentence
12

Ormerod D, Laird K, Smith and Hogan’s Text, Cases and Materials on Criminal Law (14th
edn, Oxford University Press 2014)
Pedain A, ‘Intention and the Terrorist Example’ (2003) Crim LR 579
Reed A, Fitzpatrick B, Seago P, Criminal Law (4th edn, Sweet&Maxwell 2009)
Rogers J,’The Law Commission’s Proposed Restructuring of Homicide’ (2006) 70 J Crim L
223
Simester AP, Spencer JR, Sullivan GR, Virgo GJ, Simester and Sullivan’s Criminal Law:
Theory and Doctrine (5th edn, Hart Publishing Ltd 2013)
Simon J, How should we punish murder, 94 MARQ. L. REV. 1241 (2011)
Spencer J, ‘Messing up Murder’ (2008) Archbold News 5
Titus Reid S, Criminal Law (9th edn, Oxford University Press 2012).
Wilson W, Criminal Law (5th edn, Pearson Educated Limited 2014)
Woollin [1999] 1 AC 82
13

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