Moloney Murder Case
Murder is the unlawful killing of a reasonable creature in being under the Queen’s peace within any country of the realm with malice aforethought express or implied. The Law Commission Report ‘Murder, Manslaughter and Infanticide’ (2006) described the law on murder as a “rickety structure set upon shaky foundation”.
It mentions the serious harm rule which is where the defendant is liable for murder if they kill with the intention of inflicting serious harm as well as if they intend to kill. Under the present law there is a lack of distinction between intent to kill and intent to cause GBH. For example, if a person intended to cause GBH and was unaware that death would occur they would be guilty of something they didn’t foresee. This has been …show more content…
In Hyam (1975) intention was to be distinguished from desire and foresight of probable consequences. In Moloney (1985) Lord Bridge stated that foresight of consequences isn’t intention, it’s just a rule of evidence. In Hancock and Shankland (1985) the judge said that the rule in Moloney was unsafe and requires a reference to probability. In Nedrick (1986) the jury must find that death or serious harm was virtually certain and the defendant realises this. In Woolin (1998) the meaning of intention was that the consequences must be virtually certain and the defendant must realise this. This confuses the law as it’s constantly changing and isn’t solid. It also builds on previous meaning which may make it confusing for a jury as it isn’t clear if it’s a rule of law or …show more content…
A problem with the defence of diminished responsibility is that the burden of proof is on the defendant. This could be a problem as it can put them at a disadvantage because it might be breaching Article 6 (2) European Convention of Human Rights which states that everyone should be innocent until proven guilty. However, courts have stated there isn’t a breach. Developmental immaturity is not included in the defence of diminished responsibility despite the Law Commission proposing that it should be included. Parliament included learning disabilities and autism spectrum disorder because they come under the term. However, developmental immaturity is not the same as learning disability or autism spectrum
It mentions the serious harm rule which is where the defendant is liable for murder if they kill with the intention of inflicting serious harm as well as if they intend to kill. Under the present law there is a lack of distinction between intent to kill and intent to cause GBH. For example, if a person intended to cause GBH and was unaware that death would occur they would be guilty of something they didn’t foresee. This has been …show more content…
In Hyam (1975) intention was to be distinguished from desire and foresight of probable consequences. In Moloney (1985) Lord Bridge stated that foresight of consequences isn’t intention, it’s just a rule of evidence. In Hancock and Shankland (1985) the judge said that the rule in Moloney was unsafe and requires a reference to probability. In Nedrick (1986) the jury must find that death or serious harm was virtually certain and the defendant realises this. In Woolin (1998) the meaning of intention was that the consequences must be virtually certain and the defendant must realise this. This confuses the law as it’s constantly changing and isn’t solid. It also builds on previous meaning which may make it confusing for a jury as it isn’t clear if it’s a rule of law or …show more content…
A problem with the defence of diminished responsibility is that the burden of proof is on the defendant. This could be a problem as it can put them at a disadvantage because it might be breaching Article 6 (2) European Convention of Human Rights which states that everyone should be innocent until proven guilty. However, courts have stated there isn’t a breach. Developmental immaturity is not included in the defence of diminished responsibility despite the Law Commission proposing that it should be included. Parliament included learning disabilities and autism spectrum disorder because they come under the term. However, developmental immaturity is not the same as learning disability or autism spectrum