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The common law offence of Murder has witnessed a complicated development in its definition and application by the judiciary.

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Introduction

Criminal Law Assignment The common law offence of Murder has witnessed a complicated development in its definition and application by the judiciary. The favoured definition of murder is that of Coke1, which can be neatly summarised as 'the unlawful killing of a person in being under the Queen's peace, with malice aforethought'2. The actus reus of murder is relatively straight forward to clarify, in terms of who can commit the offence, where it can be committed and the need for a dead body. There are only a few minor areas of debate regarding causation and who can be a victim i.e. when does a child become independent of its mother? These issues, however, are recognised as settled at law3, even though many people may have morally different views, especially regarding the latter. The 'fuzzy edges', and requirement for clarity, Wilson is referring to4, are the dynamic requirements in the mens rea (referred to as 'malice' here in) of murder; specifically how a jury can ascertain the intent of the defendant. This essay will examine the attempts in case law, and subsequent articles, to clarify the meaning of malice and how it can be ascertained. The evidence itself points to a string of unsatisfactory attempts to clarify malice; a situation that could be alleviated by either a classification of different levels of the offence or a reclassification in the sentencing of the offence. ...read more.

Middle

Although classed, legally, as a single offence the public reaction to murders can be seen to vary depending on the circumstances of each incident, namely the combination of harm and personal culpability24. Mitchell's survey indicates the public have broad categorisations of murder, with child killings and killings involving torture held as the worst, and mercy killings being acceptable in the correct circumstances25. Therefore, in line with Desert Theory, the offence and sentence should match the proportional gravity of the wrong committed26. READ AMERICAN JOURNAL AND POTENTIALLY INCLUDE HERE! Applying this logic to the British system there could be a sliding scale of offence that attracted a relative punishment other than the mandatory life sentence that could be reserved for the most severe categories of murder. Each offence could then have its own malice requirement that would clarify the doctrine in relation to groupings of cases. Apart from the potential simplification this could provide there is likely to be more guilty pleas, especially in the lesser graded offences; in contrast to the position now where there is arguably little to be gained from a guilty plea27. Conversely, a whole new series of offences could create just as many problems in regard to malice, where eventually there will be difficulty in deciding which category a borderline offence should fall. The re-classification of the offence has been looked at but was denounced as unworkable28. ...read more.

Conclusion

18 R v Woolin [1999] AC 82. 19 R v Moloney [1985] 2 WLR 648. 20 Goff, R. The Mental Element in Murder, The Law Quarterly Review, (1988) 104, 30, pp 40. 21 Wilson, W. Doctrinal Rationality after Woolin, Modern Law Review, (1999) 62 (3) pp 451 & 456. 22 Norrie, A. After Woolin, Criminal Law Review, (1999), July, 532, pp 534. 23 Norrie, A. After Woolin, Criminal Law Review, (1999), July, 532, pp 542-43. 24 Mitchell, B. Further Evidence of The Relationship Between Legal and Public Opinion on the Law of Homicide, Criminal LawRreview, (2000), October, 814, pp 817. 25 Mitchell, B. Further Evidence of The Relationship Between Legal and Public Opinion on the Law of Homicide, Criminal LawRreview, (2000), October, 814, pp 820-21. 26 Valier, C. Minimum Terms of Imprisonment in Murder, Just Deserts and the Sentencing Guidelines, Criminal Law Review, (2003), May, 326, pp327. 27 Towler, A. Murder Most Foul, Law Society Gazette, (2002), 99, (20), pp 21. 28 Valier, C. Minimum Terms of Imprisonment in Murder, Just Deserts and the Sentencing Guidelines, Criminal Law Review, (2003), May, 326, pp 333. 29 Goff, R. The Mental Element in Murder, The Law Quarterly Review, (1988) 104, 30, pp 53-55. 30 Criminal Justice Bill 2002. 31 Pedain, A. Intention and the Terrorist Example Criminal LawRreview (2003) Sept, 579, pp 580. 32 Goff, R. The Mental Element in Murder, The Law Quarterly Review, (1988) 104, 30, pp 57. 33 Goff, R. The Mental Element in Murder, The Law Quarterly Review, (1988) 104, 30, pp 46. ...read more.

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