Reform of the law on murder.The law commission say it is rickety structure set on shaky foundations and is in dire need of reform. The whole offence as an overview is complex, unclear, uncertain and unfair.

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Reform of Murder

Murder is a common law offence which is interpreted by the courts. The current common law offence was defined by coke in the 17th century and still exists today. It also doesn’t allow for any differentiation between different kinds of killing. Which now, there are many different types of killings such as serial killings, euthanasia, mercy killings etc and therefore the law should adapt to support this. The law commission say it is “rickety structure set on shaky foundations” and is “in dire need of reform”. The whole offence as an overview is complex, unclear, uncertain and unfair.

In regards to the actus reus, there are some problems with many aspects including cokes definition of “unlawful killing of a human being”.  First, for the term “human being”, it is a bit confusing into what counts as life, and what counts as death in regards to murder. The term “life” is defined in AG ref (NO3 1994) as being from when you are born and breathing independently from the mother. However, for death there is no legal definition, only a medical one of “brain stem” death Malcherek and steel. It doesn’t seem to make sense that there is a legal definition for life but not for death, there should be a legal definition for both. In regards to “unlawful killing”, this is an issue of causation. There are different opinions on the way self neglect such as in the case Dear should be used in law. One side states that you have a right to refuse medical treatment and the other that the defendant should take responsibility for his own actions as stated with the De Minimis principle and “but for” tests. However, this isn’t clear as to what is legally right as technically it can be seen as legal by both ways. If you follow the thin skull rule, then the defendant must take the victim as he finds them and therefore it doesn’t matter if they wish to seek medical help or not, however, on the other hand the rules of causation state that the defendant takes the responsibility therefore it is not clear and therefore would lead to unfair and unpredictable results.

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In regards to self defence, there is an argument over whether in murder cases an unsuccessful plea due to excessive force should result in a conviction of manslaughter Clegg. At the moment, if the defence fails, it’s a all or nothing situation as it is a complete defence where an acquittal if successful but you are guilty of murder if not.  The Coroners and Justice Act 2009 failed to include any mention of excessive force and missed an opportunity to deal with this issue.

There is also a major criticism in the types of killers. There are about 5 types ...

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An okay essay but there are notable omissions - the mandatory life sentence (see: the HoL Select Committee Murder and Life Imprisonment Report) for example. 3 stars.