In relation to the offence of murder discuss the suggestion that the law is in urgent need of reform

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Victoria McAlister

In relation to the offence of murder discuss the suggestion that the law is in urgent need of reform

The definition of murder is derived from the explanation by Sir Edward Coke who expressed “Murder is when a (person)…unlawfully killeth..any reasonable creature in rerum natura under the Queen’s peace, with malice aforethought..” – this is essentially; the unlawful killing of a human being. However, the conundrum this provides is the actus reus of murder; in that there is no distinction of the severity or gravity of the crime.  This definition raises several points that require further consideration, as there are many anomalies and thought concepts that are now out dated. Coke’s definition of murder used to provide that the death of the victim had to occur within a year and a day of the actus reus; so when this definition was originated the “year and a day rule” was sufficient, however with modern technology life may be maintained for longer, so already this anomaly has been reformed under the Law Reform Act (Year and a Day Rule) 1996 as the time frame was no longer relevant. There is also no distinction for mercy killing especially of those in a vegetative state. The definition of a “person” is open to interpretation, as a foetus is not considered a “person”, so if death is caused before the child has an existence independent of its mother, there can be no murder. However under the House of Lords’ decision in Attorney General’s reference No.3of 1994 (1998) ac245 (no3 of 1994) (1998)AC 245 HL it states “if a baby is born and later dies because of an attack on its mother by the defendant whilst in the womb” with the intention to cause GBH then this would be enough to form an intent to murder. This definition by Coke does not establish causation, it does not specify remoteness or differences in outcomes for cases with similar facts. As murder is a result crime, it must be proved in each case that the defendant’s actions were the cause of the victim’s death. If the prosecution cannot link the defendant’s conduct to the death, then the defendant must be acquitted. Therefore the prosecution must show that “but-for” the defendant’s conduct, the victim would not have died. The case of R v White (1910) where the ‘but-for’ cause was the heart attack not the poison, illustrates this point. Courts have always held that a defendant must take a victim subject to his physical and mental condition. In tort, this is known as the ‘egg shell skull’ principle. Therefore, a defendant must always take a victim as he finds him - Blaue.

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Within Coke’s definition of the mens rea of murder it is that the unlawful killing is done with ‘malice aforethought’. and malice aforethought is satisfied by either an intention to kill or an intention to cause grievous bodily harm. Therefore if someone breaks another person’s arm and that person subsequently dies then the aggressor is guilty of murder even if they did not want that person to die. As Lord Edmund-Davies commented in R v Cunningham (1982) AC566, ‘I find it passing strange that a person can be convicted of murder if death results from, say, his intentional breaking of ...

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A good essay, but the student could have also considered the mandatory life sentence (some have called for its abolition) and self-defence and the Tony Martin debate. 3 Stars.