Evaluation of Murder and special defences

There are a number of issues with the current law on murder:

• The fact that the D can be convicted of murder even though he did not intend to kill
• The difficulties faced when deciding what is means by intention
• The fact that the only sentence for murder is a life sentence
• The fact that the use of excessive force in a situation where some force was justified does not provide a defence
• The law develops slowly as well as other issues with common law
• Defence of duress is unavailable as a defence to murder

The Law Comission has proposed that some changes be made to the law on murder most notably making it into a tiered system similar to the system in the USA.

• There would be first degree murder whereby a person has killed with intention to cause the death of another person
• There would also be second degree murder whereby a person has killed but did not have intend to cause death or serious injury
• First degree murder would carry the mandatory life sentence whereas second degree murder would have more flexibility of punishments

A topical issue is also the ideas around euthanasia as well as assisted suicide with high profile cases being constantly reviewed by the higher courts of the UK to allow a person who needs help tot take their own life not to envoke a murder trial on the person who helped them. (Airedale NHS Trust v Bland)

Many of the issues with the original defence of Diminished Responsibility (DR) have been solved witht the introduction of the Coroners and Justice Act 2009 which updated the defence to reflect a more modern understanding of mental function replacing an 'Abnormality of Mind' to an 'Abnormality in  mental function'. There are however some issues still present with this defence:

• The burden of proof lies with the defendant which is not the case for most other defences available as usually the D only has to raise the point and the prosituction has to disprove the defence but in this instance this is not the case
• There is the issues in many cases surrounding intoxication and diminished responsability from cases such as R v Dietschmann

The law on Loss of Control has been significantly improved recently due to the update provided by the Coroners and Justice Act 2009 which sets out clearly what loss of control is and when it applies which was quite vague under the old law of provocation. There are however still some issues with the law that need clearing up:

• With respect to the 'qualifying triggers' what does a situation of 'extremely grave character' mean?
• When considering the age sex and circumstances of the D what can and can't be considered (Camplin)
• Sexual infidelity gives rise to most of the issues around the defence however as it is common should the law allow for it?
• Fear of serious violence is a subjective notion (R v Martin)