Critical evaluation of murder for A2 law unit 4

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Murder answer plan

        At the beginning of its report on the Partial Defences to Murder (Law Com 290, 2004), the Law Commission says expressly that it "has long considered that the law of murder is in need of review". This shows that it has been brought to the attention of parliament by their advisors that the law on murder is in an great need of being changed, however as parliament doesn’t have to follow all that the law commission suggests to them – all the law commission is designed to do is to suggest to parliament things they think need to be changed, not things parliament will in fact change. This shows that there are indeed some points of the law on murder which need to be addressed, but that parliament isnt responding to that need as they don’t feel they have the time to carry out the drafting of a statue to change it. So it shows a lack of commitment to addressing the law on behalf of parliament, whose job it is really to make the country a safer place to live in for the citizens of the UK, but it is debatable as to how safe our country really is when parliament don’t commit the time to changing important statutes on murder as murder is a serious issue as to the life and wellbeings of british citizens – many people want justice to be served by those who are a danger to society.

        The law on murder is considered to be quite old, as the definition used for it was by Lord Justice Coke in the 16th century, which is still used today. This shows that the law on murder has remain consist over the centuries, and the same principles remain the same today as they did back in the 16th century. However, a lot of things occur in the world today that they didn’t occur 500 years ago, which arent covered in the law as they didn’t occur back then. Also, murder is a common law offence which can cause a lot of inconsistancy in the law as different judges have different views on the same issue so there may be holes in the law due to the fact that the law on murder is based on cases instead of statutes which can properly defined murder in its widest sense.

There are several areas in which the law of murder is unsatisfactory, and is satisfactory. The first point is the fact that a defendant can be convicted of murder even though there is no intention to kill. Under the present law on murder, a defendant is guilty of murder if he had intention to cause grievous bodily harm and actually causes the victims death. In some of these cases the defendant may not even realise that death could occur. Yet he is just as guilty as the man who sets out to kill his victim intentionally.

This point has been considered by the House of Lords – whether a person who didn’t intend murder is still punished with the same offence as someone who did. One leading case where the point was put across was in Cunningham in 1981, where Lord Edmund Davies thought that for a sentence of murder the Defendant must only have the intention for murder. However he thought that it must be changed by parliament, rather than changing the law through decisions on cases. This is a good point to stress the fact that Murder is a common law offence – which means it has been defined by cases. So if murder is defined by cases, then why not continue changing it with cases, instead of waiting for parliament to pass a statute which by the time it has been passed will be out of date anyway? If murder has always been defined by cases, at what point did it stop being defined by cases and only have to be defined by statute? Can the law on murder not be challenged by cases which think it is incorrect and outdated, only to find it has to go through a long lengthy process to change it. There have been attempts at persuading parliament to pass new law on murder but parliament has not been prepared to give the necessary time to enact the law. The draft criminal code produced in 1989 changed the intention of GBH to intention to do GBH and foresight of death, but a draft is still a draft and isn’t law. So because parliament has not been prepared to look at a pontentially flawed piece of law which needs to be considered, potentially a lot of “murderers” are in prison for a crime that in fact they didn’t actually intend to do. So this brings me back to my earlier point – if parliament wont spend the time to change the law on murder to something which is a more reasonable sentence, then why cant it be change in cases, like it always has been?

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This leads me in to my next point which is connected to the first. What is intention, and how do you prove the difference between the intention to kill and the intention to do GBH? The courts find it difficult trying to find out what is meant by intention, for how can you really prove a person intended to do a specific thing at any given point in time? The main problems in the law are on foresight of consequences. The house of lords has tried on many occasions to explain it. However, at what point does the intention to ...

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Summary:There are several valid points made. However each point could have been supported by a precedent case or an illustrative case to give greater authority. At present the points read like assertions. Account should now be taken of the 2009 reforms to the part defences of loss of control and diminished responsibility. Rating: ***