To maintain the faith of the public the law should be fair, firm and explicable, whether

or not this is being achieved is the subject of much debate. Reform of the law on murder is
supported by legal academics, journalists and commentators. In 2006 Professor Horder,
Law Commissioners described the law on murder as a rickety structure set on shaky
foundations.
In its 2010 2011 annual report the Law Commission expressed its concern about the lack
of Government response to their recommendations. Emphasising that the law of homicide
is a discredit to our legal system and reform along the lines of its proposals in the 2006
report Murder, Manslaughter and Infanticide are long overdue.
Common law offence: Given that murder the most heinous of crimes it seems odd
that it is not placed on a statutory footing, codification would place the law on a statutory
footing and provide the ideal opportunity for an overhaul which would make it generally
more accessible to the ordinary lay person.
Age: Given that the current definition of murder still firmly finds its roots in that given by
Sir Edward Coke in the 17th Century it is hardly surprising that the law fails to reflect our
21st century knowledge and advances.
Mens rea: With regard to the mens rea, the ordinary lay person may assume that malice
aforethought requires a pre-meditated killing whereas this is not the case as neither word
takes its usual meaning. So called mercy killing for reasons of compassion Wragg; Lawson
is still murder yet there no malice on the part of D. It is now well established that the term
means intention to kill or intention to cause serious harm, and the law should be updated to
reflect this. It is argued that an intention to cause serious harm should not be included
within a murder charge as the culpability of someone who intends to give someone a good
pasting but doesnt foresee death differs from that of a person whose desire is to actually
kill. There was great confusion as to what constituted oblique intent before the
Nedrick/Woollin guidelines were introduced. However, they are also confusing and require
reform to increase clarity. Also, as these are only evidential rules Matthews & Alleyne this may confuse jurors and cause varying verdicts depending upon the level of fault they
personally believe the D to have show, leading to inconsistencies. The Law Commission
recommend this should be a legal rule thus leaving the decision with an experienced judge as
opposed to the jury.
Life sentence: The mandatory life sentence fails to reflect the diversity of murders that
occur, from mercy killings - Wragg, to serial killings (Tobin; Sutcliffe). The different levels
of murder may more accurately be illustrated by the proposed 3 tier structure of first
degree murder, second degree murder and manslaughter. First degree murder would carry
the life sentence, and this is intent to kill or intention to cause serious injury, and where D
was also aware that their conduct posed a serious risk of death. Second degree murder
would hold a discretionary life sentence, when the D may have the mens rea for first

degree, but pleads a partial defence, or D intends serious harm but was not aware of the
risk of death.
Criticisms from prominent figures in the CPS and police have brought the criticisms to the
attention of a wider audience. In 2010 the DPP, Keir Starmer QC, confirmed his support
for reform of the law of homicide in line with the proposals put forward by the Law
Commission to introduce degrees of murder along the lines of the US system.
Unlawful: The term unlawful implies that some killings may be lawful, acting in selfdefence can amount to a lawful killing but this is an all or nothing defence. If the defence
fails the D will receive a full conviction and life sentence, which is unfair as they are simply
responding to an attack and are clearly not as blameworthy as a D who wasnt acting to
protect himself or another (Clegg; Martin). Whilst the new special and partial defence to
murder of loss of control may address this issue as the fear trigger is intended to provide
a safeguard for those using excessive force, it is too early to tell whether this will fully
alleviate the issue. Also, it is possible for a doctor to administer drugs that will shorter a
persons life as long as the motive is to reduce pain, (Cox) but administering drugs to end a
patients life is illegal. It is difficult for lay people to understand when a killing is lawful
when there is such a fine line between each situation.
When does life begin and end: The issue as to when life begins or ends and the extent to
which a doctor is liable for the treatment of his/her patient has resulted in considerable
debate. The distinction between cases such as Bland, where the withdrawal of treatment
was permitted with regards to this PVS patient and therefore didnt constitute murder and
a positive act such as that of euthanasia, even if driven by love, care and compassion which
will amount to murder is difficult to understand. This not only caused confusion for the
ordinary lay person, but also for members of the medical profession. There is also a
problem with how human being should be defined. In law, life begins when the child is living
independently of the mothers womb, and foetuses in the womb dont fall into this category
(Attorney Generals Reference No. 3). However, recent medical advancements have meant
that it is possible for babies to survive if born as young as 24 weeks. Surely therefore
common sense suggests that life should be seen as being after this point and the law should
be updated to reflect medical advances. Likewise, there is a debate over when life ends.
There is no legal definition for death, however doctors consider it to be when a patient is
brain stem dead (Malcherek and Steel). A legal definition has never been made, due to the
ever changing medical advances.

The pick and mix approach to reform and the reluctance of the legislators to alter adapt
the mandatory life sentence for murder has led to the reform of the special and partial
defences to enable discretion in sentencing, by virtue of the Coroners and Justice Act
2009. Yet these reforms continue to attract criticism. They also mean reform of the law
of murder is never likely to be high on any governments legislative agenda; the more
so when it is a coalition which must balance the demands of two parties in the same
amount of Parliamentary time. Second, there is the political danger of being seen to
do anything that is soft on crime.

With regards to diminished responsibility s.2 of the Homicide Act 1967, whilst the
terminology and concepts are now far more contemporary it is questionable as to whether
the law will alleviate all of the problems which previously existed. The problem of the
reverse burden of proof remains unchanged, the fact that the D has to prove that he was
suffering from an abnormality of mental functioning (AMF) is arguably unfair, as normally the
state must establish the Ds responsibility, because they clearly have the resources and access to
expertise in order to do so. On the other hand .

The issue as to whether the D is suffering from an AMF seems fairly logical though it
perhaps narrows the defence beyond what would otherwise be desirable. The previous law
could be interpreted broadly and cover conditions such as mercy killers Wragg; Lawson,
whereas now this is constrained by the fact that this must substantially impair the D;s
mental responsibility in one of three ways. This means that mercy killers may not be able to
rely on defence, yet few would regard them as being as blameworthy as a someone who kills
out of revenge and the mandatory life sentence should be avoided at all costs. In addition
as most people who kill have an impaired loss of self control, so it would appear that the
other impairments are superfluous which means that even the new law is unnecessary
complex.
The LC wanted to include the issue of developmental immaturity but this was rejected in
the basis that normal immaturity of a child would be covered in the revised offence though
this isnt entirely satisfactory.
The AMF must now arise due to a recognised medical condition means the defence is now
grounded in accepted medical diagnosis as opposed to moral culpability, yet the fact that
the jury must still decide whether the conditions are satisfied means that the decision may
still vary from jury to jury although they are likely to be swayed by medical opinion which is
likely to still conflict. In addition conditions such as BWS Ahluwhalia and PMT have not
always been medically acknowledged, so there is always the possibility that the rules may
prove to be unjust. It may also be impossible to include all previous conditions unless
medical opinion is enlarged.
The defence must now provide a causal connection between the AMF and the killing, which
goes beyond the recommendations by the LC which would have stopped at the requirement
provide an explanation for the killing, without elaborating as to what this means. This may
be a positive feature as it is possible that whilst someone may suffer from manic
depression, that this at the time of the killing was not prevalent and if there isnt a causal
connection it is appropriate that this does not afford them an excuse for the death.
There is still an overlap between DR and insanity as an AMF and defect of reason can be
one and the same as can a RMC and disease of the mind. Whilst the substantial impairment
aspect of DR covers more than the limited aspect of insanity in that is relies on an inability
to understand the nature of the acts Codere, it would be preferable if the defence of DR

were perhaps available to all offences, thus removing the need for the outdated law on
insanity altogether.
The problems with intoxication also still persist and jury are expected to ignore the effect
of intoxication Dietschamann unless it amounts to alcohol dependency syndrome Wood
which is a difficult decision to make.
With loss of control (ss 54 & 55 Coroners and Justice Act 2009) a number of issues
persist. Whilst the loss of control need no longer be sudden this is unlikely to alleviate the
criticisms that the defence is gender biased as battered women such as Ahluwhalia;
Thornton; Humphreys do delay in reacting and so in the eyes of the jury may demonstrate a
considered desire for revenge Ibrams & Gregory so would still be denied the defence.
Despite the wording it is likely that the more sudden the response the more likely the
defence will succeed which could still give men a licence to kill.
The fact that defence is no longer available if D is acting as a result of sexual infidelity is
also problematic as there is a distinct lack of definition. As there may be other factors for
the jury to consider and it will be difficult to compartmentalise them. For example the D
may come home to find his wife in bed with another man if he kills her the defence will fail,
but its not clear whether this will apply if he sees an incriminating text, is mistaken or if
someone else tells him shes having an affair. It is too early to tell whether this is an
improvement in the law until a definition of sexual infidelity is determined by the courts.
Whilst prohibiting the defence from those who incite things to be said or done as an excuse
for violence seems like a positive feature there is no guidance as to the stance the law will
take to those who do this inadvertently.
With regards to the qualifying trigger of anger there is the ambiguity as to what amounts
to circumstances of an extremely grave character resulting in D having a justifiable sense
of being seriously wronged. Whilst this may be judged subjectively the jury decide whether
it is satisfied which brings with it the complexity of an objective view. The fact that the
anger can no longer be induced by an innocent victim such as a baby crying as in Doughty is
laudable.
Whilst the fear factor extends the scope not only to battered women but to all others who
respond to fear of violence against themselves or another, the scope of the defence is
questionable. Most battered women will be defeated by the desire for revenge element.
However, those who use kill using excessive force in self defence as in Clegg and Martin,
may be afforded a life line by the reforms which will provide them a lesser but
nevertheless important defence.
The objective test is also far from clear. The fact that the jury must be satisfied that a
person of the same age and sex as D with a normal degree of tolerance and self control
would have reacted in a similar way to D seems in line with the ruling in Camplin and Holley,
thus other characteristics are relevant to Ds ability to control himself but not in the
objective limb. However, the jury must now also consider the circumstances of D which is

far from clear. The decision in Smith that all of the Ds circumstances were relevant to this
limb of the test meant that this was also a subjective test, which was sensibly reformed in
Holley. The proviso that any characteristics which impact on D ability to exercise self
control may address the problem and mean that in effect if D as in Morhall is a glue sniffer,
taunted about his glue sniffing, this would be disregarded as it will impact on his ability to
control himself. However, this is yet to be challenged in the courts, if more characteristics
can be considered other than age and sex, the law appears to have stepped back in time and
will require future judicial clarification and possibly statutory intervention.
Dont forget to add a conclusion:
The law on murder would benefit from reform and it is too early to tell whether the new
rules on the loss and control and DR will be effective. What is certain is that further
statutory intervention is unlikely for a very long time.