Homicide Degrees Of Muder, Provocation, Diminished Responsiblity, Manslaughter Notes

Criminal Law reading- session 3-Homicide Textbooks Ashworth chapter 7 * Only when a child born alive and has an existence independent of its mother does it come within the protection of the law of homicide. * A person will be treated as dead if they become irreversibly brain dead. Hence someone switching off the life support machine will not fulfil the conduct element of murder. However even where someone is not brain dead but is in a persistent vegetative state the HL says that discontinuing treatment is not causing death but merely letting the patient die (Bland). * The reason for abolishing the year and a day rule is that medical advances allow people to be kept alive for years after being injured/wounded. * With life imprisonment, there may be a minimum time to be served by the prisoner after which he will be released when a parole board say he is no longer a threat to the public. Once released he remains on license for his entire life * CJA 2003 says that minimum sentence must be whole life for exceptionally serious cases (e.g. double murder, sexual or sadistic child murders, or political murders). Minimum sentence of 30 years for murders of police/prison officers, murders involving firearms, murders based on race or sexuality. Minimum sentence of 15 years for other murders. However the Lord Chief Justice's Practice Direction of May 2004 allows judges to amend minimum sentence as they see fit, but cannot set maximum sentences. Arguments in favour of life sentences are: (1) they mark out the morally worst crimes, and (2) they contribute to public safety. Ashworth disagrees, saying that murder is not sufficiently well refined so as to only encompass the worst crimes. Also if people believe that life sentence only means roughly 10 years then it is not a significant denunciation. Also minimum sentences are no more a deterrent than long-term fixed sentences (Though this is not the reason it helps public safety: public safety occurs because one can keep the dangerous criminals locked up for as long as is necessary + early hope of release could incentivise them to reform). * A system of three or more degrees of murder would normally lead to a guilty plea and would place greater emphasis on sentencing. Its flexibility, as opposed to the broad terms of murder and manslaughter, could mean that a fairer, more accurate verdict is reached, though this could be at the expense of longer trials and higher legal aid costs. * Manslaughter is split into voluntary manslaughter and involuntary manslaughter (where there is no need to prove any awareness of the risk of death being caused, but where there is nevertheless sufficient liability to merit and offence). * It could be argued that including intent to cause GBH in the scope of murder extends the rule too far since a lesser culpability of mind exists and therefore the defendant is not as bad as one who actually intends to kill. However in intending GBH one has crossed a significant moral threshold after which the consequences may vary but culpability should remain the same. We shouldn't turn murder into a lottery. * Other tests for murder could be the Hyam test of "high probability of consequences". Another could be the Scots Law of wicked recklessness (but when one asks how wicked recklessness needs to be to justify charge of murder, the answer is "enough to justify a murder conviction". Thus this is a circular argument. A third approach is to say that murder exists where intention to cause serious injury, coupled with an awareness of the risk death exists. This would exclude mere recklessness or Cunningham test, but taken together they would lead to a murder charge. A fourth approach is constructive murder (see notes), whic English law has abandoned. * In provocation, the defendant must be (1) provoked so as to (2) lose self control. It is not enough simply to lose control on account of circumstance e.g. bad traffic. The "sudden" loss of self control is introduced by Lord Devlin in Duffy and does not appear in s.3 Homicide Act 1957, though the courts maintain it. It implies a reaction immediately following the provocation. The "sudden" qualification is unfair as it favours those with explosive temperaments rather than those with "slow burn" temperaments, while it favours those with the physical strength to act immediately (which favour men over women). These problems were both shown in Ahluwalia, though the rationale behind the doctrine is that otherwise very many murder crimes could be transferred to manslaughter. The Law Commission would say that provocation does not apply where there was a "considered desire for revenge." The reasonable man test for self control is clumsy, Ashworth says, since we are talking about homicide: reasonable men don't kill people. * The self control element of provocation has to be determined in each case by 3 questions: 1)How grave was the provocation? 2) How adequate was the level of self control in response to it? 3)Was the provocation grave enough to make a reasonable man do as D did? Surely the last question makes the subjective nature of question 1 completely irrelevant * Ashworth says that attitudes inconsistent with the law or inconsistent with a pluralist, free society should be excluded e.g. what if a racist is provoked to kill a black man because he was angered by the black man's presence or speaking in the company of white men. 

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