The Criticism of English Criminal Law - Assignment Example

195157     An intention to cause grievous bodily harm is sufficient mens rea for murder grievous bodily harm’ rule). However, as Lord Mustill d in Attorney-General’s Reference (No 3 of 1994) [1998] AC 245, “many would doubt the justice of this rule”. Discuss, evaluating in particular whether the Law Commission proposals for the introduction of first degree and second degree murder sufficiently address criticism directed at the ‘grievous bodily harm’ rule (see Law Commission Report on “Murder, Manslaughter and Infanticide”, November 2006)." At present the law on murder only requires that the person committing the offence intended to cause serious bodily harm to the victim. The original definition of murder was defined by Sir Edward Coke in 1606 as When a man of sound memory and of the age of discretion, unlawfully killeth within any country of the realm any reasonable creature in rerum natura under the Kings Peace, with malice aforethought, so as the party wounded, or hurt…, die of the wound or hurt, … within a year and a day after the same1. Changes in legislation2 and precedents set by case law 3 have had the effect of defining malice aforethought in narrower terms4. The statement made by Coke needed there to be a degree of ill will or premeditation to be present for the accused to be found guilty. The recent amendments have meant that the prosecution need only show that there was an intention to kill5 or an intention to cause grievous bodily harm6. The introduction of the Criminal Justice Act 2003 has had the effect of rewording the legislation so that now the prosecution only has to prove that the intention of the defendant was to cause serious bodily harm. Schedule 21 of the CJA does go on to suggest that where the prosecution can only prove intention to cause serious bodily harm rather than murder that this could be regarded as a mitigating factor when sentencing the defendant. It has recently been proposed that there should be more leeway on charges of murder. Many believe that the courts should insist that prosecutors have to prove the direct intent element of mens rea was in existence at the time of the killing7. In July 2005 discussions took place between the Director of Public Prosecutions and the Law Society to establish if there would be support for a review of the criminal law. The aim of the review was to create a tier system similar to that in existence in America. Under the tier system the courts would be able to consider the actions of the defendant with relation to the degrees of murder available to the prosecution8. The present system allows the defendant to plead guilty to manslaughter where the direct intent element cannot be proven beyond reasonable doubt. By introducing the tier system alternative charges in relation to murder would be available and the court would not be forced to accept the manslaughter plea. The main thrust of the discussion seemed to be that the new system would be welcomed as there is a lot of frustration in the present system. The prosecution sees the present system as inflexible when dealing with the criteria for murder9. In the past the prosecution has struggled to prove the direct intent to kill. Problems have arisen with defence counsel frequently being able to convince the jury the the victim’s death was more a misfortune rather than a deliberate plan10 even though the death was caused as a consequence of the actions of the defendant. Difficulties have even arisen when the defendant has commented to others that he intends to kill the victim. In many cases despite this admission the courts have held that this would be insufficient to satisfy the requirement of direct intent11. Defence lawyers have been successfully able to argue that things said in the heat of the moment such as a comment about killing someone are frequent expressions in society when a person is angry with another. The lawyers have argued that regarding comments such as ‘I will kill him’ should not be viewed as a direct threat but can in some instances be read by a jury as a sudden outburst. In dealing with murder charges the courts have allowed the prosecution to adduce evidence to show an intention to commit grievous bodily harm on another as creating an intention to kill12. The courts in deciding to allow intention to be proven in this manner have interpreted the wording of the Act to mean that the prosecution need only prove that the defendant ought to have known that the harm he was inflicting could cause the victim to die13. This notion has been particularly adopted in cases where there has been a group of people acting together in attacking the victim. In cases where a group of persons have acted together to cause the death of the victim the police have frequently charged all the members of the group with murder in the initial stage. When the case has been brought before the courts it is fairly common for only one to eventually be charged with the murder and for the others to be charged with a lesser charge of manslaughter. This happens in cases where the remainder of the group are able to show that they had an honest belief that they were only going to assault the victim and that they had no reason to believe that anyone within that group might use a weapon or might have intended to kill them for the very start14. Under the new proposals the direct intention element would be removed and it would then only be necessary for the prosecution to prove that the person doing the attacking ought to have foreseen that his actions could cause the death of his victim15.Using this as a guideline by which to establish a charge of murder would make it so that the principles for proving harm in tort cases would be the same for a murder case. Under the present system the prosecution can only use foresight as evidence of intent and not as intent on its own. One of the biggest problems with proving intent is that it is a subjective test16. The jury have to base their verdict on what they believe the defendant actually foresaw or intended not on what he should have foreseen or intended17. From the term malice aforethought the implication would appear that the intention has to be direct intention. This would be were the accused actually wants the result that occurs and sets out to achieve it. In reality though the jury can actually find oblique intention in the actions of the defendant. This would occur where the accused did not desire the result but in acting in the manner they did were aware of the fact that such a result may well occur18. Requiring the jury to find that the defendant has the necessary mens rea for the offence is problematic and can be hampered in cases where the mental health of the defendant is in question19 or where the defendant is a minor20. In the report on Murder, Manslaughter and Infanticide (Law Com No 304, 29 November 2006) the Home Office recommended the three tier system of homicide. Under this new system if adopted first degree murder would attract a mandatory sentence of life imprisonment in the same way as the courts do at present if a person is found guilty of murder. Second degree murder would have the discretion to offer a life sentence if it was deemed necessary to do so. Similarly manslaughter could also result in a discretionary sentence of life. Within these changes the worst kinds of killing would be charged as second degree murder as opposed to the present system where the courts will accept a plea of manslaughter if there is no corroborating evidence. Using this as a guideline provocation and diminished responsibility would also be categorised as second degree murder. The review considered that the defence of provocation ought to be made fairer so that those who had overreacted in response to fear of serious violence could rely in the defence of provocation to reduce the charge from first to second degree murder. By the same token the judge would have the power to prevent the jury from considering a plea of provocation where the provocation averred to was the admission of adultery. The new guidelines also suggested that in gang attacks more than one person might be found guilty of murder. This would be the case if the prosecution could adduce evidence to show that the other parties where either directly involved in the attack on the victim or if the gang murderers encouraged the attack knowing that the perpetrator might murder the victim. The overall impact of the changes would give the jury a greater degree of autonomy in deciding the fate of the defendant. By allowing the jury to have more choices the defendant could be found guilty of second degree murder rather than being charged with manslaughter. The advantage of this from a court perspective is that the judge would be at liberty to issue a higher penalty in terms of sentencing. Under the new guidelines if they are implemented first degree murder will be similar to the present definition apart from the added part concerning the awareness that the act might cause death or serious injury. The main changes will be within the areas of second degree murder and manslaughter and will have an impact on defences of provocation and diminished responsibility. Within the new rulings for manslaughter gross negligence and participating in a joint venture will be charged as manslaughter. In the past some defendants have avoided criminal charges in these areas. The new defence of duress might assist some defendants especially where the murder is a joint venture and the person is forced to go along with the attack as he is part of that group and likely to be attacked himself if he refuses. The changes of the law in respect of infanticide have yet to be revealed but it is envisaged that the charges will allow for a defence of temporary insanity as frequently these cases occur where the mother is suffering from severe post natal depression. Infanticide often causes controversy21. This is where a child under 12 months of age is murdered by its mother and the mother uses the defence that the balance of her mind was disturbed due to her not having fully recovered from the effect of giving birth or by reason of the effect of lactation consequent upon the birth of the child. Without this defence the mother would face a charge of murder. Some people may well agree that this is a reasonable defence. There is no real definition as to what constitutes a disturbed mind and therefore some feel that this could effectively lead to someone getting away with murder by employing this defence. The proposed changes would mean that a fault element or provocation could alter the charge from first degree murder to 2nd degree and manslaughter will now be able to specifically deal with gangs. A new defence of duress will be open to be pleaded, however the onus is on the defendant to prove they were under duress. The new offence of second degree murder is likely to increase the number of life sentences issued as there will be more situations where this will be the appropriate charge and although the life sentence for 2nd degree murder is discretionary the judge will take the dangerousness of the offender into consideration and may well issue life sentences more frequently. Women have sometimes fallen foul of the legal system and been charged with murder in domestic violence situations22. There has been an alteration to the legal system in recent years and the courts have now accept what has been termed as battered wives syndrome as a defence thus reducing the charge to manslaughter23. It could be argued that these new measures will toughen up the law on murder and on the face of it this might be true as in previous times the choice between murder and manslaughter effectively meant the difference between a life sentence and a shorter custodial sentence. Under the new scheme there would be a greater likelihood of a life sentence. The review also requested that the courts ought to consider under which category if any mercy killing should be listed. At present this still remains undecided. There have been a number of cases where relatives of terminally ill patients have assisted the dying person to commit suicide24. The relative or friend assisting can and often do find themselves subject to criminal procedures for murder25. The mens rea element of the offence of murder is deemed to be satisfied in these cases as it is obvious from the action of the person assisting that their intention is to help the patient to die. The conclusion that can be drawn from the above is that the new categories of murder are likely to result in a greater number of life sentences being issued. The ruling on grievous bodily harm will be changed to serious bodily harm and the new rules rightly treat the defendant as guilty of either second or first degree murder. It is obvious that serious injury might resort in death and therefore the courts should reflect this in their ability to charge for murder where it is obvious that serious harm was intended. 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