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the advantages and disadvantages of the United Kingdom Law Commission’s proposal that the law governing homicide in England and Wales be reformed to codify homicide offences.

Extracts from this document...

Introduction

1. Woollin [1999] 1 AC 82 2. Adomako [1995] 1AC 171 3. Smith (Morgan) [2001] 1 AC 146 4. Wilmot (No 2) [1985] 2 Qd R 413 5. DPP v Beard [1920] AC 479 6. Boughey (1986) 161 CLR 10 7. Kai-Whitewind [2005] EWCA Crim 1092, [2005] 2 Cr App R 31 8. Cawthorne [1996] 2 Cr App Rep (S) 445 9. Z [2005] UKHL 22, [2005] 2 AC 467 10. Howe [1987] AC 417 11. Gotts [1992] 2 AC 412. 12. Z [2005] UKHL 22, [2005] 2 AC 467 13. Dixon v US (2005) 413F 3rd 520 1. Law Commission Act 1965 2. Human Rights Act 1998 3. Criminal Justice Act 2003 4. Infanticide Act 1938 5. Homicide Act 1957 6. European Convention on Human Rights 1.0 Introduction: The Law Commission The Law Commission was set up by section 1 of the Law Commission Act 1965 for the purpose of promoting the reform of the law. The Law Commission reviews the various elements of murder, including the defenses and partial defenses to it, and the relationship between the law of murder and the law relating to homicide (in particular manslaughter) in England and Wales. The review will make recommendations that take account of the continuing existence of the mandatory life sentence for murder and provide coherent and clear offences which protect individuals and society. It is also to ensure that those convicted to be appropriately punished. Recommendations that are made should be fair and non-discriminatory in accordance with the European Convention of Human Rights and the Human Rights Act 1998. The process of review used is open, inclusive and evidence-based which involves a review structure that will look to include key stakeholders and consultation with the public, criminal justice practitioners, academics, those who work with victims' families, parliamentarians and faith groups. It also involves looking at evidence from research and from the experiences of other countries in reforming their law.

Middle

Consequently, the scope of the defence has become unclear. There appears to be little prospect of the courts resolving this disagreement. (B) Diminished responsibility The introduction of the partial defence of diminished responsibility in 1957 was a welcome reform. However, medical science has moved on considerably since then and the definition of diminished responsibility is now badly out of date. It has not been drafted with the needs and practices of medical experts in mind. Lord Justice Buxton describes the wording of the Act as "disastrous" and "beyond redemption".10 (C) Killing in pursuant of suicide pact Section 4 of the Homicide Act 1957 makes the survivor of a suicide pact who took part in the killing of another person in the pact guilty of manslaughter and not murder. This provision was meant to allow the jury to take pity on those desperate enough to seek to take their own lives along with that of another person or persons. (D) Infanticide The main problem is on the procedure for ensuring that evidence of a mother's mental disturbance at the time of the killing is heard at trial. A mother may be 'in denial' about having killed her infant. She may, therefore, be unwilling to submit to a psychiatric examination if the point of this examination seems to her to be to find out why she did it. In such circumstances, she is unlikely to have another defence and is, therefore, likely to be convicted of murder. This is not in the public interest.11 Apparently, this is not an easy problem to solve in order to do justices in such cases. 4.2 Recommendations on partial defences The Law Commission proposed that the operation of the partial defences should be confined to first degree murder only. There should be no partial defences to second degree murder or manslaughter. Partial defences with a successful plea shall have the effect of reducing first degree murder to second degree murder.

Conclusion

Offences and defences specific to murder must take their place within a readily comprehensible and fair legal structure. This structure must be set out with clarity, in a way that will promote certainty and in a way that non-lawyers can understand and accept. All in all, it should be noted that codifying homicide offences should be done to certain extent only - retain current laws that are advantageous, and repeal disadvantageous current laws with a more efficacious new laws. 1 On murder see Woollin [1999] 1 AC 82 and on manslaughter see Adomako [1995] 1 AC 171 and Smith (Morgan) [2001] 1 AC 146. 2 Recommendations for manslaughter build upon previous Law Commission recommendations and Home Office proposals. 3 See "The Structure of Criminal Homicide" [2006] Criminal Law Review 471, 474. 4 Wilmot (No 2) [1985] 2 Qd R 413. 5 DPP v Beard [1920] AC 479. 6 Boughey (1986) 161 CLR 10. 7 Victor Tadros, "The Homicide Ladder" (2006) 69 Modern Law Review 601, 605. 8 J Pradel, Droit P_nal G_n_ral, (14th ed 2002) _ 502. 9 Infanticide Act 1938 10 Partial Defences to Murder (2004) Law Com No 290, para 5.43 n 40. 11 Kai-Whitewind [2005] EWCA Crim 1092, [2005] 2 Cr App R 31. 12 Jonathan Rogers, "The Law Commission's Proposed Restructuring of the Law of Homicide" [2006] Journal of Criminal Law 223. 13 See Cawthorne [1996] 2 Cr App Rep (S) 445. 14 Catherine Elliott, French Criminal Law (1991) p 49. 15 Howe [1987] AC 417. 16 Gotts [1992] 2 AC 412. 17 Z [2005] UKHL 22, [2005] 2 AC 467 at [18] by Lord Bingham. 18 Dixon v US (2005) 413F 3rd 520. 19 Jean Pradel, Manuel de procédure pénale, (10th ed, 2000), §380 20 If the defendant assists or encourages the victim to commit suicide, the defendant commits the offence of aiding, abetting, counselling or procuring suicide contrary to the Suicide Act 1961, s 2. The offence is punishable by a maximum term of imprisonment of 14 years. 21 Criminal Justice Act 2003, s 269 and sch 21. 1

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