Essay Plan: ‘Murder is Only Committed by People Who Kill with the Intention that Their Victims Should Die, and the Law Should be Reformed to Reflect That.’
Introduction
• Focus: Discusses whether the law of murder should be reformed to reflect that it is only committed by individuals who kill with the intention that their victims should die.
• Thesis: The current law of murder encompasses a broader range of culpability than mere intention to kill, and while a reform to narrow this scope might be desirable for clarity and fairness, it must be approached carefully to avoid unintended consequences.
Paragraph 1: The Fault Element of Murder is Too Wide
• Overview:
◦ Current Fault Element: The fault element of murder currently includes not just direct intention but also indirect intention and, arguably, the infliction of grievous bodily harm (GBH) with intent.
◦ Cases and Expansion:
▪ R v Vickers (1957): Established that intent to cause GBH can be sufficient for murder.
▪ R v Cunningham (1957): Further confirmed that recklessness can contribute to the fault element.
▪ R v Bollom (2004): Expanded the definition of GBH, thus broadening the scope of what constitutes murder.
◦ Critique:
▪ Parliamentary Intent: The broad scope of the fault element might not align with the intention of Parliament for murder and sentencing, which could have been aimed at more serious cases.
▪ French Law: Contrast with French legal principles that may offer more precise definitions.
▪ Fair Labelling: Need for clearer criteria to ensure appropriate labelling of culpability.
◦ Proposal: Rather than moving GBH to manslaughter, which is already broad, there should be a clearer outline of what constitutes GBH.
Paragraph 2: Uncertain Definition of Intention to Murder
• Overview:
◦ Direct and Indirect Intention: The law encompasses both direct intention and indirect (or oblique) intention.
◦ Case Law Evolution:
▪ DPP v Smith (1961) and Hyam v DPP (1975): Established that foresight of death or serious injury can imply intent.
▪ S.8 of the Criminal Justice Act 1967: Provided a statutory framework for interpreting intention.
▪ R v Moloney (1985), Hancock & Shankland (1986), and Woolin (1998): Developed the test for indirect intention, culminating in the ‘virtual certainty’ test.
▪ R v Matthews & Alleyne (2003): Further refined the test.
◦ Critique:
▪ Piecemeal Solutions: The evolution of indirect intention through various cases reflects a piecemeal approach that lacks consistency.
▪ Theoretical Perspectives: Scholars like Alan Norrie and Antony Duff argue that the practical indifference to death, rather than intention to kill, can sometimes be treated as equivalent to intent in law.
▪ Scope of Application: Uncertainty remains about whether these principles apply uniformly across all cases of murder.
Paragraph 3: Coincidence, Correspondence, and Transferred Malice
• Overview: Principles:
▪ Coincidence: The requirement that the actus reus and mens rea must coincide (e.g., R v Thabo Meli (1954)).
▪ Correspondence: Ensures that the defendant’s intention matches the criminal act (e.g., R v Miller (1983)).
▪ Transferred Malice: Intention to harm one person can be transferred to another (e.g., R v Latimer (1886) and AG’s Reference (No. 3 of 1994)).
◦ Critique:
▪ Fine Line Between Murder and Manslaughter: The application of these doctrines can blur the line between murder and manslaughter.
▪ Constructive Manslaughter: May conflict with the principle of correspondence and complicate the categorisation of culpability.
Paragraph 4: Law Commission Proposal
• Overview:
◦ Current Proposals: The Law Commission has explored reforming murder to simplify and clarify the law, potentially narrowing it to cases with clear intention to kill.
◦ Challenges:
▪ Complex Cases: Reforms must address complex cases where intent might be ambiguous.
▪ Victor Tadros: Concerns about creating indifference to death, as the legal standard might affect moral judgments and the perception of culpability.
▪ Aggravated Offences: Consideration of introducing aggravated offences could provide a middle ground, distinguishing between varying levels of culpability within the scope of non-fatal offences.
Conclusion
• Summary: Reforming murder to limit it to cases with a clear intention to kill could address the current broad scope but must be carefully crafted to avoid undermining legal principles and fair labelling.
• Recommendation: Rather than broad reform, a more nuanced approach that clarifies the definitions of GBH and intention, and carefully addresses the complexities of current doctrines, might be preferable.