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Reform of the law on murder.The law commission say it is rickety structure set on shaky foundations and is in dire need of reform. The whole offence as an overview is complex, unclear, uncertain and unfair.

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Introduction

Reform of Murder Murder is a common law offence which is interpreted by the courts. The current common law offence was defined by coke in the 17th century and still exists today. It also doesn't allow for any differentiation between different kinds of killing. Which now, there are many different types of killings such as serial killings, euthanasia, mercy killings etc and therefore the law should adapt to support this. The law commission say it is "rickety structure set on shaky foundations" and is "in dire need of reform". The whole offence as an overview is complex, unclear, uncertain and unfair. In regards to the actus reus, there are some problems with many aspects including cokes definition of "unlawful killing of a human being". First, for the term "human being", it is a bit confusing into what counts as life, and what counts as death in regards to murder. The term "life" is defined in AG ref (NO3 1994) as being from when you are born and breathing independently from the mother. However, for death there is no legal definition, only a medical one of "brain stem" death Malcherek and steel. ...read more.

Middle

get prison for life with tariff, a provoked killer which would get manslaughter with a discretional life sentence, and a diminished responsibility killer which would get manslaughter with a discretional life sentence. This isn't fair as here, a mercy killer gets a higher offence than provoked killer whereas a provoked killer has the actus reus and mens rea for murder and a mercy killer doesn't. Also, a mercy killer is doing it out of love whereas a provoked killer is working out of anger. This is making the labelling for the offences very unfair so the defendant isn't being charged under the right offence for what he has done. With regards to mens rea, it is defined as "malice aforethought" which is a very old term defined to mean intent to kill or cause serious harm - GBH. Intent to kill is either direct "expressed malice" or oblique "implied malice". Direct intent is where it is the defendants aim or purpose. However, oblique intent is foresight that death or serious injury results as a virtually certain consequence of the defendants actions which is very similar to recklessness and therefore causes a lot of confusion. ...read more.

Conclusion

This should solve some problems as with cases like Ahluwalia where she couldn't plead provocation but however, would be able to plead loss of control. Also, the reasonable man has been changed to the objective test. There is also a proposal which splits murder into 2 sections, first degree murder and second degree murder. First degree murder would have a mandatory life penalty and would apply to people who kill intentionally or killing where there was an intention to do serious injury coupled with an awareness of a serious risk causing death. However, the last bit "coupled with an awareness of a serious risk causing death" is very similar to oblique intent and the GBH rule. The second degree would have a discretionary life maximum penalty and would apply to people who were killing where the offender intended to cause serious injury - which is identical to the GBH rule, killing where the offender intended to cause some injury or fear risk of injury and was aware of a serious risk of death - which is similar to manslaughter and oblique intent or killing in which there is a partial defence to what would otherwise be first degree murder. With this voluntary manslaughter disappears in favour of second degree murder. ?? ?? ?? ?? ...read more.

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Here's what a teacher thought of this essay

3 star(s)

An okay essay but there are notable omissions - the mandatory life sentence (see: the HoL Select Committee Murder and Life Imprisonment Report) for example.

3 stars.

Marked by teacher Edward Smith 05/07/2013

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