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13 Cards in this Set

  • Front
  • Back
Murder - Intro (def ect)
Murder has existed as long as history has been recorded in England and Wales the current definition of murder derives from Cokes definition from the 17th century. Although it can be argued that the law on murder operates perfectly well, although various criticisms could be directed towards the law on murder. Highlighted in a report entitled "Murder, Manslaughter and Infanticide" written by the Law Commission in 2006.
Murder Problem 1 - Mens Rea
A D can satisfy the MR of murder if he intends to kill or cause serious harm. This was confirmed in DPP v Smith and R v Vickers, is essentially means that a D who intended to break someone's arm and the person died due to medical complications, then the D would be found guilty of murder. And would receive a life sentence this seems very unfair.
Murder Problem 2 - Mandatory Life Sentence
Another criticism is that if the D is found guilty of murder the judge has no choice but to impose a life sentence upon the D. It can be argued that there are different levels of blameworthiness even within the crime of murder.
Murder Problem 2 - Mandatory Life Sentence (2)
An example if the murder of soldier Lee Rigby, Michael Adebolaj who received a whole life tariff, most would argue that this is totally justifiable. However a life sentence was also imposed upon Francis Inglis who was guilty of murdering her severely disabled son, although the judge gave her lowest tariff possible she still received a life sentence of a minimum of nine years. This was aggravated by the CJA 2003 imposing minimum sentences.
Murder Reform 1 - (to problem 1 and 2)

The Law Commissions proposals for reform in 2006 go into some detail to solve the serous harm rule and the problems with mandatory sentencing. Their suggestions include different levels of murder, First degree murder; Killing with intention to kill, including cases of oblique intention. Killing with intention to cause serious injury with the knowledge and awareness that there is serious risk of death, this would be a mandatory life sentence. Second degree murder; Killing with the intention to cause serious injury, killing with intent to cause some injury or fear or risk of injury in awareness of possibility of death. Killing with diminished responsibility or with loss of self control.

However even with these reforms Francis Inglis and farmer Tony Martin would still receive life sentences, even with these reforms. So far the government have rejected any reforms on the law of insanity.

Murder Problem 3 - Duress is not a defence to murder
Duress is not a defence for murder, this can be where the D is threatened with death or serious injury so that he will take part in the offence. This can be seen as unfair, the Law Commission gave it's example of a taxi driver who has his taxi taken over by a gunman who points a gun at his head, the gunman then goes on to shoot someone subsequently the taxi driver is an accomplish to murder, and will receive a life sentence.
Murder Reform 3 - Problem 3 - duress
The Law commission suggested that duress should be a complete defence for murder, However the D would have to prove that he was threatened with serious or life threatening harm and had no realistic opportunity to seek police protection. The jury would have to find that if a person of ordinary courage might have responded in the same way as D did in the same circumstances.
Murder Conclusion
There are many further problems with the law on murder including the problems with the defence of intoxication, the fact that you can be found guilty of murder by omission and the complicated issue of euthanasia, not discussed in this paper. It can be agreed that the law commissions reforms may solve many of the problems with the law on Murder however existing problems would still remain and some may even be created.
Diminished Responsibility - Reform1 & Intro - Definition.
The law on diminished responsibility was reformed in the Coroners and Justice Act 2009, by using the phrase "recognised medical condition" the definition should be flexible enough to allow for future developments in medical knowledge. The new definition also sets out the aspects of the D's mental functioning have to be substantially impaired - this makes the defence much broader than the defence of insanity. Hence seen as fairer to the D.
Diminished Responsibility - Problem 1 - Burden of Proof
Remaining problems with the law on diminished responsibility include that the burden of proof should not be on the D. In most defences the D simply has to raise the issue and the prosecution have to disprove it. This is not the case for diminished responsibility. The D must prove the defence upon the balance of probabilities. It has also been argued that this breaches Article 6 in the European Convention on Human Rights that everyone is presumed innocent until proven guilty.
Diminished Responsibility - Problem 2 - Developmental Immaturity
The Law Commission also suggested that developmental injury for those under 18 should be included within the definition of diminished responsibility. At present, unless there is evidence of specific learning disability, for example autism, then in theory a child with developmental immaturity as young as 10 could be convicted of murder.
Loss of Control - Problem 1 and Intro - loss of control no longer has to be sudden.
The Coroners and Justice Act 2009 abolished the defence of provocation and replaced it with loss of control. One main area that was reformed was that the loss of control no longer had to be sudden. This was aid to help women who reacted in different ways, however the Law Commission had proposed to remove the loss of control element altogether to in particular help women in abusive relationships, but the government rejected this proposal.
Loss of Control - Problem 2 and Reform - Law regarding self defence.