Is the Current Law on Murder Still Acceptable - Assignment Example

? ASSIGNMENT - LAW IS THE CURRENT LAW ON MURDER STILL ACCEPTABLE? S 5TH January 3, EXECUTIVE SUMMARY This document is a detailed study on laws against murderer. For the reader’s convenience, various legal citations have been stated. Legal system of England and whales are very briefly looked upon. In the end the laws for defences to murder and reforms in its reference are debated. TABLE OF CONTENTS Executive Summary 2 1.0 Introduction 4 1.1 Criminal Liability of accused murder 5 1.2 Actus Reaus 6 1.2.1 Importance 6 1.2.2 Concepts of Causation and Omission 7 1.3 Mens rea of Murder 8 1.4 Law on defences to murderer 9 1.5 Conclusion 10 References 11 INTRODUCTION The word system is referred to as how the law is applied to the courts and how the legal procedures are carried in courts. It is more than any rule that is practiced or any law but it’s a complete process of legal frame work. England inherited the law of Wales, therefore when talking about the English Legal System we refer to Wales’s as well. The English Legal system is based on the common law where the judges can carry on the law themselves and the decisions from the previous cases and be made as a part of law. (Gillespie, 2007) The legal system of England and Wales is based on the common law legal system used I Republic of England and in most common wealth countries. United Kingdom is the member of the European Union, England and Wales are constituent countries of the UK. The essence of common law is that it is the judges sitting in courts applying the Law of England. 1.1 CRIMINAL LIABILITY OF A DEFENDENT ACCUSED OF MURDER As explained by Catherine Elliot and Frances Quin in the first chapter (Elliot & Quin, 2012) there are various elements necessary to prove the criminal liability of a murder. A criminal offence is only possible when both “Actus reus” and “Mens rea” are conducted at a time. A person is not liable of a crime unless the two elements are present i-e Actus reas and Mens rea. Both these terminologies have different meanings (explained in the next page of this document) according to the crime. Not only this but it hinges upon the behavior of the one guilty and proves to be in a certain mental attitude towards their behavior. As stated in the English law that a person is innocent until proven guilty. ACTUS REAUS + MENS REA = CRIMINAL OFFENCE (the above diagram shows the elements of criminal offence) In the case of Woolmington v DPP (1935) the defendant had taken a gun to threat his wife (the victim of the case), that he would commit suicide if she didn’t return to him, accidently the gun went off and he was convicted of murder. Hence, it is concluded from this case that although he did it by accident but the murderer had done a criminal offence, with a guilty mind. (Roe D, 2005) 1.2 ACTUS REUS To begin with the study of any case, firstly it is necessary to prove the criminal offence. As talked about it earlier a criminal offence is a compound of both intention and action to commit the crime. Actus reus is the first element of a criminal offence. Briefly and in simple words it means intent, the intention to commit offence. The term is a Latin word meaning ‘the guilty act’. The literal meaning explains that it is important that a physical action or movement takes place. In the case of R v Cunningham (1982), the victim was attacked by the defendant wrongly assuming that victim has sexual relation with his fiance. The defendant repeatedly hit the victim in his head, causing fracture and severe injuries resulting in death in a week. Although the defendant claimed that law of murder should be held to those who intent to do kill but unfortunately the decision was given against the defendant. 1.2.1 IMPORTANCE The concept of Actus reus has been derived from English common law. The principal of this concept is the application of both the elements of criminal offence to call it a criminal act. Any act that is carried on with the intention to harm anyone becomes a criminal act. In the words of Mahony (2002 p. 28), the concept of voluntariness is fundamental to criminal liability. A person cannot be responsible of an act which he has not committed by some voluntary action. Only in one condition the law will ignore its absence of voluntary conduct if it has its origin in a state by the consumption of alcohol or drugs. As in the case of Airedale N.H.S. Trust v Bland (1993), the patient was injured in Hillsborough disaster, he was in a persistent vegetative state (PVS). With the consent of his parents, the doctors applied for a declaration to stop his life support machines. The declaration was granted. But the court claimed that Euthanasia is unlawful and there was an intention of killing behind this act. 1.2.2 CONCEPTS OF CAUSATION AND OMISSION Causation is an issue caused by a result crime. In such situations if the crime is caused due do the defendant’s act; he is liable of the crime. Whereas, where the event has no connection to the defendant’s act, he is not liable of the crime. As stated by Leavens (1988 p. 548) the conventional approach to criminal omissions defines the limits of such liability through the concept of duty. The theory is appealingly simple: if a person has a duty to prevent harm and fails to do so, he shall be punished the same as one who affirmatively acts to cause that harm. It is not so simple, however, to determine which "omitters" have a duty to act and thus properly is subject to liability for a particular harm. The case of R v Stone & Dobinson (1977) is a very clear example of omission, Stone and his mistress were convicted of manslaughter, as they both had taken the responsibility of his sister suffering from anorexia, but her health became poor day by day and died. 1.3 MENS REA OF MURDER The term Mens rea in legal terminology means a guilty mind or the intention to commit a crime. This element of criminal offence faces number of confusions as how to determine the state of mind of the convict. In other words, it can be said that Actus reus is the physical element and Mens rea is the mental element of a criminal offence. It becomes very tough to evaluate the mental state of a convict. “The Mens rea of an offense consists of those elements of the offense definition that describe the required mental state of the defendant at the time of the offense, but does not include excuse defenses or other doctrines outside the offense definition. To help distinguish this more narrow conception from the broader, the Model Penal Code drafters substitute the term “culpability” for “Mens rea.” Thus, Model Penal Code section 2.02, governing the Code’s offense mental states, is titled “General Requirements of Culpability” and subsection (2), defining the offense mental elements employed by the Code, is titled “Kinds of Culpability.” Unfortunately, the term “culpability” has come to suffer some of the same confusion between broad and narrow meanings as the term “Mens rea.” While most frequently used in its narrow sense, as interchangeable with “offense mental elements,” “culpability” is sometimes used in a broad sense, as interchangeable with “blameworthiness.” The meaning of both “Mens rea” and “culpability” must often be determined from their context.” (Robbinson P, 1999 p. 2) The case of R v Prince (1875) depicts an example of confusion caused by Mens rea. In this case the defendant was charged to take an14 year girl without her parents’ consent. The girl stated that she was 18 year old, hence the defendant did not think he was committing a crime, here the element of ‘guilty mind’ was missing. Hence, the defendant wasn’t charged. 1.4 LAWS ON DEFENCES TO MURDER Under this topic of discussion we shall discuss that the laws of England regarding homicide are on shaky foundations as laws were made in 17th century and with time the laws need change. As Mr. Justice Toulson says that the structure of law must be set out with clarity, in a way that promotes certainty in the future and in a way that non-lawyers can understand and accept. (Toulson, 2006. p 4) The elements of criminal offence need changes as it would improve room for justice in the law. Stated by Chignell (2011), the laws of murder is basically dependant on two aspects i-e the physical act and the intention to commit the crime. The latter part of the sentence, is in dire need of changes, as there is a clear difference in intent to kill and intent to threaten or hurt. CONCLUSION Concluding, the laws on murder cant b still acceptable in the 21st century. As the foundation of common law were made centuries ago. These need reforms, to improve justice in the society. The report on the topic of law on murder and the reference of cases depict the need for change in the law of murder. REFERENCE PAGE 1) Gillespie A. 2007, The English Legal System , Oxford University Press. 2) Elliott C , Quinn F, 2012, Criminal Law , Pearson Books. 3) Woolmington v DPP [1935] AC 462. 4) Roe D, 2005, Criminal Law, Hodder Arnold. 5) R v Cunningham [1982] AC 566 6) Airedale N.H.S. Trust v Bland [1993] A.C. 789 7) Mahony P, 2002,Criminal Justice in Ireland, Institute of Public Administration 8) Leavens A, 1988 , A causation approach to criminal omissions, vol.76 , pp 548 9) R v Stone & Dobinson [1977]QB 354. 10) Robinson P. 1999 , Mens rea , viewed on 4th January 2013, 11) R v Prince (1875) LR 2 CCR 154 12) Toulson R, 2006, A new homicide act for England and Wales?: a consultation paper, The Stationery Office, vol 177 . 13) Cignell L, 2011, Outdated and unjust : the need to change the UK’s murder law , viewed on 4th January 2013,< http://newpoliticalcentre.com/2011/12/11/outdated-and-unjust-the-need-to-change-the-uks-murder-laws-by-luc-chignell/>. Read More