How satisfactory is the current law of murder?

Although in some circumstances the Actus Reus of murder has been debated it still has a clear guideline to what it is. Most murder cases manage to establish the Actus Reus, this leads onto the assumption that the Actus Reus of murder is satisfactory and can be followed in years to come without any major change.    

The Mens Rea of Murder is ‘Malice Aforethought’ and the guidelines for this is set out in Section 8 of The Criminal Justice Act. So to find Malice Aforethought or Mens Rea it was stated in R v Vickers (1957) and R v Cunningham (1981) that, intention to cause GBH (grievous bodily harm) is enough to establish the MR of Murder not even to cause the death is necessary. This can cause problems, as it is not fair to accuse people of murder if they did not intend to kill, along with this if they are wrongfully accused they will face life imprisonment. Furthermore the test of ‘Foresight of Consequences’ allows more people to be sentenced for murder. This test is were the jury put themselves in the defendant’s shoes. In R v Woolin the jury had to find the MR for murder if they felt that “At the material time the defendant could foresee as virtually certain that death or serious harm could occur”. This can be criticised, as the jury only really need to find if the defendant wanted to cause serious harm, not murder. So the jury are using non-fatal guidelines of intention to cause GBH on a fatal offence. Many people have claimed that this test is to find intent that may not be there however in the case of Matthews & Alleyne (2003) the judge said that foresight f consequences is not intention but evidence jury can use to find intent. Although Foresight of Consequences has caused debate and trouble it can be seen as good as it allows more criminals to be caught and sentenced, without it the defence could claim all their clients did not mean for the outcome to occur and murderers could get away with their crime.  

The idea of intention has also been heavily debated in the courts, mainly on what the meaning of intent is and how to find intent. For example in the case of Re A (2000) the court thought that based on the comments made during the Woolin case that foresight of consequences was intention, however this was clarified in Matthews & Alleyne. This debate can cause confusion and has led to many critics saying that the Mens Rea is too overcomplicated as the judiciary are trying to find the meaning of intent and cannot do so as there are too many cases in which the meanings differ. This proves that this part of Murder is unsatisfactory and changes need to occur. However all that really needs to be done is that intention needs to be given a clear definition in which the courts can follow and make decisions which are constant and do not vary allowing cases that arise in the future to reach decisions without any complications.     

As the law of murder has proven unsatisfactory there is strong views for its reform. People like Jeremy Horder have claimed, “the law is unfair & confusing”, others like Lord Woolf want an end to the mandatory life sentence. The Law Commission who is dealing with the task of reforming the law have claimed, “Murder is a mess and a major overhaul is required.” They have also said that they want fewer life sentences and want to create specific offences like ‘Assisting Suicide’ and ‘Infanticide’. The law commission made proposals in which they planned to introduce three Homicide offences, ‘First Degree Murder’ this is the most serious of homicide cases. The requirement is that the person has the intention to kill however the killing does not have to be premeditated, this carries a mandatory life sentence. ‘Second Degree Murder’ is the second form in which the requirement is that the defendant wanted to cause serious harm or he/she knows there is an unjustified risk of death however carries on with their actions. This group also contains cases that have partial defences to murder. ‘Manslaughter’ is the third and final group these are the least serious murder crimes. The guideline is that the offender “kills through grossly negligent conduct or kills by doing an act intending/realising it would cause harm. Both Manslaughter and Second Degree Murder hold discretionary life sentences.

These proposals have been described by Jeremy Horder as a “ladder of offences reflecting different degrees of culpability.”

The new proposals can be said is a step towards improvement as now the jury and judge have more options when sentencing. This makes it fairer as juries can now give more guilty verdicts without thinking that the sentence is too harsh and letting them off. However it will be hard to find defendants for first degree murder as the requirement is that they have the intention to kill. Along with this, critics have claimed second degree murder is a ticket to getting a lighter sentence, as the defendant needs to claim they were reckless. In retaliation the Commission said, “Taking a risk even a high risk of killing someone is recklessness and very serious but it is not the same as the deliberate taking of a life.”  

The law of Murder has flaws in it however it is also quite good. The Actus Reus of Murder is fine and could be left to use without reform, as there are not many problems. However regarding the Mens Rea there is constant debate, and it needs to be reformed. As Jeremy Horder said, “the judiciary need to adapt to the 21st century,” this could be done if the proposals of the law commission are adopted. The law has been around for over 50 years and will need reform to make it easier to use in the future.