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Unclear if it can be committed by omission (Fagan;Bermudez)
S.47: – Lacks clear definition as to ABH
- Difference in Physical + Psychiatric ABH leads to injustice as to different level of injury
- MR is constructive liability, creates higher liability out of lesser offence (Savage/Roberts)
- Definition becomes intentional or reckless injury. This is simpler and more just (no constructive)
S.20: – Necessary to see if it is an actual/wound or GBH. Lacks definition of both terms.
- Eisenhower definition means that paper cut is a wound whereas GBH must be really serious harm, this inconsistency in the level of injury is unjust.
- MR does not match potential seriousness (Intent/Reck. To some harm – Mowatt)
- Wasn’t until DIca/Konzani it was decided transmission of disease was covered. What diseases are GBH?
- Easier to convict minorities as sub-saharan strain of HIV is easier to detect = Discrimination
- Recklessly causing serious injury – Clarifying the level of injury as the MR
S.18: - Nedrick/Woollin guidelines not easily understood by juries and adds to the confusion
- Offence also includes resisting unlawful arrest where there is no harm needed but a potential life sentence.
- ‘Malicious’ is redundant and should be removed
- Intentionally causing serious injury. Provides more logical progression through offences
Conclusion:
Despite the law being adaptable in its present form it quires an overhaul and codification to make it understandable to the lay person and ensure it runs efficiently. Reforms will reduce costs, delays and injustice in the courts but as a result of Political Reality will probably never happen. Any reform will need judicial interpretation.
Reform of Murder.
Law Commission: “Dire need of Reform” “Is a mess” “Rickety Structure on Shaky foundations”
- Prof. Jeremy Horder: “Unclear or too generous to killers”
Coke definition too old – Fails to reflect 21st Century
- Much language outdated +lay person think malice aforethought means pre-meditated killing
- No differentiation of types of killers
- Lord Halisham said in Howe “as practitioner knows it consists of a whole bundle of offences of vastly differing degrees of culpability”
- Needs to be codified to be appropriate/modern/accessible
Mandatory life sentence unfair – Doesn’t allow for judicial discretion to reflect individual responsibility for each killing
- Should be clear distinction between mercy and serial killers, who are all labelled murderers
- Reform? Law Com. 2 Sentences. 1) Min Life Sentence. 2) Max Life Sentence.
Coutts – Can Return verdict of MS – Too much for Jury – Reform fixes this
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Murder can be committed by omission, but this does not reflect the seriousness of the offence as even battery can’t be committed by omission (Fagan)
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When can 3rd Party Break Chain (Chesire/Jordan) Conflict with each other
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When V’s actions stop being self neglect (Dear/Holland) and start being daft + unexpected
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Think Skull Rule unfair, attracts liability for something reasonable man could not foresee (Blaue)
Self Defence: Not fair or just, as excessive use of force would lead to a full murder conviction
- All or nothing
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Police/Army judged to the same standard as Martin, not fair as they are acting to protect society as a whole as they may be much more ‘anguished’
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Judiciary cannot make separate offence for them as it is parliaments job (Clegg/Demenez)
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Similar argument for reforming duress which is not a defence to murder or attempted murder (Howe/Gotts)
MR of ‘Malice Aforethought’ is misleading as there is no need for any kind of malice or ill will
- Intention for GBH should be removed (Lord Steyn) as it is constructive.
Oblique Intent: Too complicated for Juries
- Wilson says juries have too much discretion
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Evidential (Matthews & Alleyne) so they can lead to inconsistent results from different juries based on the same evidence
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1 Advantage is that it allows for different levels of blame worthiness (Coutts)
- Reform? Lord Steyn says rule of evidence should become a Rule of Law, although this may lead to unjust convictions.
Reform of Insanity.
Insanity: Currently under review by the Law Commission
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M’Naghten rules old and was in a time when knowledge on psychological conditions was limited (1843)
- 1953 Royal Commission of Capital Punishment – Legal Definition “Obsolete”
- Since then Medicine has advanced and the law has become inadequate
- ‘Disease of the mind’ misleading. Suggests some brain injury is needed
- Psychiatrists have to interpret current concepts to fit with the 1843 rules
The wording of the defence is potentially offensive and carry a lot of social stigma, as the medical profession no longer use the terms “Insane/Insanity/Lunatic”. Rules of special verdict contained in S.2 Trail of Lunatics Act 1883
- This can deter D from raising the defence as they may be labelled insane or face a hospital order.
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Reverse burden of proof unfair as Defence do not have the resources the state have. This also runs counter to the presumption of innocence and has been said to breach S.5 and 6 of the ECHR (Liberty/Presumption of Innocence)
The defence is too narrow with it only being applicable to people whom:
- Did not know what they were doing or not know it was a crime
- This can leave mentally ill people out of the scope of the defence such as Peter Sutcliffe
The defence is also too wide with ‘Disease of the mind’ So broad it covers non mental disorders such as Diabetes and epilepsy.
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The illness of diabetes can be either insanity (if hypoglycemia – Hennessey) that results in a special verdict or automatism (if hyperglycemia - Quick)that results in an acquittal, this is not fair as it is the same illness.
The judge only has a choice of 4 special verdicts and if it is a Murder case has no choice but a Hospital order, this has led to cases such as Thomas where the Judge directs the jury to acquit the D.
These problems are evidenced but the defences lack of use, as in murder cases D’s are more likely to plead DR even though it will lead to a long jail sentence they will get out.
- Possible reforms include the Butler Committee’s suggestion of “Not guilty by evidence of a mental disorder”
- Another is to extend DR to cover insanity and then abolish the law of insanity.
Reform of Intoxication.
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Majewski said it was a defence to specific intent only, however the distinction between basic and specific is illogical and unfair as intoxication means abolition of MR. If you don’t have MR for one crime, you should not have it for another
- This undermines the basic principle of law that there must be MR
- The Butler Committee in 1975 suggested an alternative approach as used in Germany where when they are not liable for a crime due to intoxication they will be liable for a separate offence of intoxication. This preserves the logic of the law and prevents people from escaping liability.
- HOWEVER, this categorises a wide range of offences under one title and the public will not know what specific offence was committed
- In 2009 the Law Commission suggested keeping the law largely as it is but codifying it with clearer definitions of what is basic and specific intent
- Problems with involuntary intoxication include Kingston as Drunken Intent is still Intent. Prof. Clarkson argues this is unfair to convict a person when their powers of reason have been removed by a third party.
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Drunken Mistakes (O’Grady/Hatton) are not a defence, although this goes against the rules of normal intoxication
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Inconsistency with the way the law is dealt with in intoxication (Aitken/Richardson + Irwin)