As for causation it could be said that it is too easy to pass the “but for” test and substantial cause tests as it is very easy to find a causal link between the defendant’s actions and the outcome. The operating cause test tries to provide justice as unforeseeable acts break the chain of causation. There is controversy over medical cases. For example blaue, you could argue that the defendant shouldn’t put the victim in that position, but it could also be argued that the rule doesn’t reflect the defendant’s degree of fault and is too harsh.
In Omissions the duty in certain relationships is solely case law, this means you must wait for a case to happen before you can know whether a duty exists. This means the law might be flexible but it is not consistent. A possible reform would be to pass legislation setting out the situation where a duty exists. However, it would be difficult to come up with a definitive list. The law commission report in 1993 suggests only omissions would count in serious offences against a person.
For the mens rea there is a problem with the wording, “malice aforethought either expressed or implied”. Lord Gibbord 1988 said “malice aforethought” was misleading as you don’t need to have malice (i.e. spite) or aforethought (i.e. planned or premeditated). The Mens Rea for murder is interpreted as an intention to kill or cause GBH. This is a common law definition and is subject to change, making it flexible but also causing uncertainty.
There are problems with intention also because it has never properly been defined and cases like Moloney and Hyam only set out guidelines and judges tend to alter between the two. This causes confusion and uncertainty and leads to jury’s verdicts being unfair and inconsistent. It also means that the decision is opened up and leads to members of the jury being influenced by personal prejudices.
The mens rea of implied malice means a defendant can be convicted of murder and given a life sentence without either intending to kill or foreseeing death as a virtual certainty. This has been strongly critisised in Moloney as unfair because two people could be convicted of murder even though their crimes are completely different. This means the punishment doesn’t reflect the degree of fault.
One proposal for reform is that the foresight of harm should be equal to intention. The law commission said “it is in the interest of clarity and the consistent application of criminal law to define intention”. The law commission and the House of Lords recommends foresight of virtual certainty should amount to intention; foresight would then be substantive law rather than merely evidence and therefore would provide clarity and consistency.
Another proposal for reform might be to include recklessness in the mens rea for murder. The Law Commission Draft Criminal Code recommends that the mens rea of murder should be intending to cause death or intending to cause serious injury and being aware that he may cause death. Therefore a defendant that intended to cause GBH but was not aware that it may cause death might be liable for manslaughter instead.
The mandatory life sentence could also be reformed as it can be argued there are different degrees of murder. For example in R v Cox (1992) with the approval of herself and her family, the defendant gave a terminally ill woman a lethal injection. It seems immoral to treat this case in the same way as you would treat a terrorist torturing and killing many people. In the USA there are different degrees of murder and maybe the UK could look at this structure in law for reform. However, Lord Bingham argues that abolishing the mandatory life sentence would allow judges to be more lenient. Another suggestion would be to abolish the mandatory life sentence and give the jury some discretion in deciding the sentence, and then the punishment could reflect the defendant’s degree of fault.
In A-G’s Reference (No.3 of 1994), [1997] a man stabbed his pregnant girlfriend. The shock brought on labour and the baby was born 8-10 weeks prematurely and after 4 months, the baby eventually died, as a result of the premature birth. The defendant was charged with the murder of the baby. This brought about the question of whether a foetus is a human being. One possible reform would be to include a foetus as a human being but have separate legislation setting out rules over abortion.
Altogether I think the law on murder is satisfactory. However I think certain proposals for reform should be taken into consideration to make the law better. I think English law should follow the example of American law on different degree’s of murder as personally I believe it is morally wrong and unfair to treat certain cases of murder like that of R v Cox in the same light as R v Brady and Hindley (1966) for example, who tortured and murdered several children for no apparent reason. I also think the wording of the mens rea should be changed to make it clearer and more consistent.
