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The dividing line between the offences of murder and involuntary manslaughter is unacceptably blurred and does not ensure that only the most morally culpable offenders receive the mandatory life sentence. Critically discuss.

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Introduction

Criminal Law Summative Coursework: The dividing line between the offences of murder and involuntary manslaughter is unacceptably blurred and does not ensure that only the most morally culpable offenders receive the mandatory life sentence. Critically discuss. In English Law, there are two general homicide offences: murder and manslaughter. Together, they cover the various ways in which someone might be at fault in killing. Homicide is generally defined as the unlawful killing of a human being; there are different offences depending on the mens rea of the defendant and whether there is a special defence available. It has often been argued however "where the scope of murder is too narrow, the scope of manslaughter is correspondingly too broad"1. Part of the problem is that there is no statutory definition of murder. The accepted definition is taken from Lord Coke, who stated that murder entails 'unlawfully killing a reasonable person who is in being and under the King's Peace with malice aforethought, express or implied.'2 So, in short, murder, which carries a mandatory life sentence, is committed when someone ("D") unlawfully kills another person ("V") with an intention either to kill V or to do V serious harm. The standard common law test of criminal liability is usually expressed in the Latin phrase, actus non facit reum nisi mens sit rea, which means "the act does not make a person guilty unless the mind be also guilty".

Middle

The current definitions of these offences of manslaughter (and, for the most part, of the provocation defence) are largely the product of judicial law making in individual cases over hundreds of years; they are "not the products of legislation enacted after wide consultation and research into alternative possibilities"17. However, from time to time, the courts have updated or changed the definitions. New cases have then generated further case law to resolve ambiguities or avenues for argument left behind by the last case; for example Woollin regarding murder, Adomako and Smith (Morgan)18 regarding manslaughter. The mens rea of murder is defined as "malice afterthought", express or implied. This sometimes means that a person is considered guilty of murder even though D did not intend to kill (R v Vickers), confirmed in R v Cunningham19. However in the Attorney General's reference20 the House of Lord's described implied malice as a 'conspicuous anomaly', which perhaps broadens the definition somewhat. Moreover, in Woolin it was stated that the jury should feel sure that the consequences were a "virtual certainty" as a result of the defendant's actions and that the defendant appreciated that such was the case. Also under the current law, D is liable for murder if he or she kills intentionally or if he or she kills while intentionally inflicting harm, which the jury considers to have been serious.

Conclusion

Some suggest replacing the two-tier structure with a three-tier structure. Such a structure would, according to the Law Reform Commission, be "much better equipped to deal with the stresses and strains on the law and with the issues of appropriate labelling and sentencing"29. The three tiers suggested, in descending order of seriousness would be first-degree murder, second-degree murder and manslaughter. Almost since its conception, the definition of manslaughter and murder have remains largely the same. Over the centuries, the "two categories of murder and manslaughter have had to bear the strain of accommodating changes and deepening understandings of the nature and degree of criminal fault and the emergence of new partial defences"30. They have also had to satisfy demands that labelling and sentencing should be based on rational and just principles. The Criminal Justice Act 2003, one of the most important pieces of legislation in the history of criminal justice reform, brought in a new sentencing regime for murder. However the radical reforms effected by the 2003 Act stand upon "shaky foundations"31, because the offence of murder, and the partial defences to it, does not have defensible definitions or a rational structure. Unfortunately, whilst twentieth century legislation on murder brought about many valuable reforms, the definitions of murder and the partial defences remain "misleading, out-of-date, unfit for purpose, or all of these"32. Quite simply, "they are not up to the task of providing the kind of robust legal support upon which the viability of the 2003 Act depends"33.

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