Critical Evaluation of Murder
* Mens rea – intention to kill OR commit serious harm
* Oblique intent
* Degrees of murder – mandatory life sentence.
* No defence available if excessive force is used in self defence * Duress defence not available for murder.
Currently, an intention to kill or cause serious harm is sufficient mens rea for murder. The Commission notes that Parliament never intended a killing to amount to murder unless the defendant realised that his conduct may cause death. The widening of the mens rea to include intention to cause serious harm without the need for the defendant to be aware that death was likely has received much criticism and came about effectively by judicial error in the case of R v Vickers.
The decision in the case of Woolin where the House of Lords speak of intention being found from foresight of consequences makes the law unclear as the previous case of Moloney ruled that foresight of consequences was not intention. The Law Commission favours the view that the jury may find that the defendant intended to kill or cause serious harm if they are sure that the defendant realised the victim was certain to die or suffer serious injury if the defendant did what they were set upon doing.
Degrees of Murder
If a defendant over the age of 18 is convicted of murder, the judge has to pass a sentence of life imprisonment – the judge has no discretion even if he feels the defendant is not as blameworthy as a deliberate killer. The single most important recommendation from the Law Commission is that murder should be subdivided into 2 separate offences: * First Degree Murder
This would continue to carry the mandatory life sentence and would include intentional killing and killing through an intention to commit serious injury with an awareness of the serious risk of causing death.
* Second Degree Murder
This would include killing through an intention to...
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