Homicide Laws are an UnsatisfactoryCcollection of Rules - Essay Example

? THE LAWS REGARDING HOMICIDE ARE AN UNSATISFACTORY COLLECTION OF RULES WHICH ARE UNCLEAR AND WHICH DO NOT SET APPROPRIATE LEVELS OF CULPABILITY THE LAWS REGARDING HOMICIDE The homicide law revolves around antiquated statutes that ever since the laws were enacted have seldom undergone any major or minor meaningful change. The judicial and legislative parties have always attempted to look at the issues and in the end the resolutions have created more problems than the solutions1. Comprehensive judicial reforms especially on the homicide law will go a long way to correct and change the errors of the past and in return limit the future errors from confusing the homicidal law further. This paper’s aim is to point out some of the major problems and errors that is contained in the homicide law. The first section will be looking at the definition of the homicide and also some of the legislative areas that is covered under the homicide law. The second section will entirely deal with the defects and problems in the homicide law. The third area will briefly look at the legal framework of the said areas and the suggested statutory reforms that can be implemented on the homicide law in Britain. When looking at the word ‘homicide’ in this essay the terms of reference will be in reference to the relationship between the law of murder and the law relating to homicide especially on manslaughter. The definition of murder can be borrowed from classic definition of Sir Edward Coke in 1797: “Murder is when a man of a sound memory, and of the age of discretion, unlawfully killeth within any country of the realm any reasonable creature in rerum natura under the King’s peace, with malice aforethought, either expressed by the party or implied by law, so as the party wounded, or hurt, etc. die of the wound or hurt, etc. within a year and a day after the same.”2 For the purposes of convenience in this paper, the definition of homicide will imply the unlawful killing of a human being by another human being. Under homicide offences, murder is the most serious of all but its reform cannot be reflected upon seclusion without the inclusion from the other homicide offences. Under Actus Reus there are four ways in which it can be implemented. 1. UNLAWFUL KILLING When the killing is unlawful there are certain defences that will make the killing lawful for example in the case of self defence. Should the jury find the killing was under self defence; then the killing will be lawful. This will only be possible if the act or omission of the defendant is thought to be legal cause of the victim’s death. Therefore the causation in such a situation must be established. 2. HUMAN BEING Should the killing occur then it must be the killing of a human being who was living. 3. QUEEN'S PEACE This means that the killing of an enemy during the course of war, under the Queen’s peace, the killing will not be classified as murder. 4. DEATH WITHIN A YEAR AND A DAY The killing ought to have been committed within the year and a day for it to be placed under homicide in particular.3 1. MALICE AFORETHOUGHT The mens rea in case of murder is usually malice aforethought. R v Moloney [1985] AC 905 4 (a) Intention to kill When it comes to murder there is always a specific intention for this crime to be committed. The intention might vary accordingly for example in this context the intention might be direct intention or even oblique intention. The direct intention implies that the situation of the defendant desired death in the first place while under oblique intent it means that the death of the defendant was foreseen as not certain although the defendant did not desire the death. The most recent authority on intention is: R v Woollin (1998) The Times, July 23.5 (b) Intention to cause Grievous Bodily Harm (g.b.h) An intention to cause grievous bodily harm is evidenced when there is willingness for acceptance of a substantial risk that the victim in this case might actually die: R v Vickers [1957] 2 QB 664: 6 In England and Wales the law being used categorises homicide offences in very blunt and elementary fashion. Under the homicide there are only two general offences; murder and manslaughter. Most of the other unlawful homicide offences are placed in either of the two main offences. This has resulted in a lot of work being done on each offence to accommodate a wide spectrum of behaviour that is displayed at different planes of criminality. Therefore the term ‘murder’ covers equally the ‘contract killer’ who commits a premeditated killing in order to gain (monetary or otherwise) and an individual who in the heat of an argument instinctively picks up a knife and mete out a wound that was not intended to be but which end up being fatal. In both cases the two individuals (the contract killer, and the ‘knife wielding person’) are guilty of murder and are subjected to the mandatory life sentence. The difference that comes with each culpability is only seen within the time each must spend in the prison before he or she can qualify for release on licence. With manslaughter there is even a more wide area on scope than on murder: It ranges in gravity from the borders of murder right down to those of accidental death.7 SAMPLE CASE: Example Scenario 1A Person Q sets a house on fire knowing that person R is inside. The house is burnt to the ground killing R. Q explains that he did that to scare and frighten R and the mindset was that R would have an escape through the fire exit at the back of the house. Person Q admits that it was a possibility that R would perish in the blaze. The jury accepts the testimony from Q that he wanted to scare off R. Example Scenario 1B Q and R are next door neighbours always in brawl about the hedge dividing their compounds. In the middle of their usual argument, one day, Q loses his temper and in the process throws a punch to R. this is a normal punch that its effect would only be just a minor bruise. However, Q’s punch makes R lose his balance and then he falls over hitting his head on the ground in the process and he dies from the injury afflicted to his skull. EXPLANATION The culpability of Q in the first example 1A can be deemed as exceeding that one of Q in the second example 1B. At the same time each of them is guilty of manslaughter. Unlike in the case of murder, admittedly the presiding trial judge can reflect upon the contrast in culpability by the means of sentences that will guarantee Q in the first example (Example 1A) will serve a longer sentence in prison than Q in the second example (Example 1B). Nevertheless, the fact that each person is convicted of manslaughter despite the disparity in their culpability is unsatisfactory. Therefore the revision of the homicide law would actually offer a different avenue like let us say the first person in 1A would be convicted of “second degree murder” instead of manslaughter. “MALICE AFORETHOUGHT” AND THE PUBLIC PERCEPTION ON MURDER: THE FLAW The malice aforethought flaws begin with the basic foundation concerning the law of murder. The offence is not an Act of Parliament instead it is a judicial description dating back in the early seventeenth century. The fundamental nature of the description is that, for an individual to be convicted of murder, he or she ought to have killed with “malice aforethought”. In the early English Law, liability for homicide was not predicted upon the defendant’s mental state. Once the law began to treat homicides in a different way, the concept of malice aforethought was developed in order to separate the excusable homicides from the ones that are felonious. Around this period malice had a meaning no more than a general criminal intent as opposed to killing committed either through accident or through other justifiable way. Through this way it meant that malice was linked to an overview sense of ill will by the defendant. By 17th Century malice was understood as the deliberate intent to kill. With time as the common law perception of murder developed, malice grew distant from the original notion of ill will8. By the Blackstone’s era malice was in its current modern form that is totally disassociated from the original common sense perception of ill will and is subdivided into express malice or implied malice9. Malice aforethought is thus already archaic and very much separated from the original intent and if the description was accurate at the time, then it is now seriously misleading. This expression erroneously continues to wield great effect over the perception form the public on murder. Majority of the people tend to believe that murder is actually deliberate or premeditated killing but in reality the range is wide. With ‘malice aforethought’ it is not necessarily have to be an intention to kill or even a premeditated intention to kill. In law a person is guilty of murder if death is resulted from an act that was intended to cause a really grievous bodily harm even if the motive was not to kill. This is so even if nobody could have foreseen that the intentionally inflicted grievous bodily harm would result in death, in a case where the victim unfortunately does not get adequate medical attention. Another issue is that the current law does not represent what the Parliament had understood about the intended law and how it was meant to be when it last revised the law on murder before enacting the Homicide 1957 (“the 1957 Act”). The 1957 Act has been heralded by the Royal Commission report on Capital Punishment 1949-1953 (“the Royal Commission”). The Lord Chief Justice, in evidence to the Royal Commission, implied that the law of England and Wales was that the persons were not guilty of murder just because they intended to cause serious harm. Persons with the intent to cause serious harm ought to know also that they were endangering life.10 As a result, the Royal Commission clearly refused to propose that the mental element of murder ought to be changed. It assumed that the view of the law as stated by Lord Chief Justice was reasonable11. The Parliament also approved the same position when it enacted the 1957 Act. Not long after the 1957 Act was passed, a decision of the Court of Criminal Appeal proved that the Parliament’s, understanding and interpretation of the law was wrong. The Court, presided over by the Lord Chief Justice, held that the law of England and Wales had always been that the persons who intended to cause serious harm without realizing that they were endangering life, were guilty of murder if the victim died. To date that continues to be the common law. In order to change the homicide law the fundamental requirement is that a new structure needs to be developed and with it clarity and promotion of certainties will be inevitable and furthermore the law should be able to gather public support mainly because of its fairness. Some of the major changes should be the homicide offences ought to be grades in such a way that it precisely reflects the different planes of criminality. In addition each of the offence should be defined clearly, apart from that, the offences, once graded the different offences will be properly and fairly labeled. The homicide laws should also have clearly defined defences of the right kind and within the right scope and in conclusion every sentences appropriate for the various levels of criminality should be made available and it should be so without at the same moment convincing the imposition of a sentence that it is not appropriate to a particular level of criminality.12 With various proposals on the homicide law overhaul; the best way would be the homicide law be split into three general categories with each supplementing a specific offence. For example: First degree murder: this will be limited to what the majority consider as some of the most serious homicide offence. Under the first degree murder, killing committed with a sole intention to kill will be under this category. The offence would be irrelevant whether the killing was premeditated. Second degree murder: this will include the serious homicides other than the ones under first degree murder like unlawful killing in the case where the offender intention was mainly to cause grievous bodily harm. Another case would be where the unlawful killings happen and the offender realized that the conduct of his or hers involved risks that are unjustified of resulting in death but the offender went ahead anyway (“reckless indifference”) and also in unlawful killings that since they are committed with an intent to kill would be murder but in its place are “second degree murder” since the offender has a partial defence mostly provocation, diminished responsibility or duress. Manslaughter: this will comprise of unlawful killing where in the case an offender kills the other person through a negligent conduct or killing the other person through an act that was intended to cause death or that might cause injury or might harm so long as the act itself comprises of a criminal offence. Other categories will include specific homicide offences that under that clause might include acts such as assisted suicide. Over the centuries and a long period of time the law governing homicide in which the law of murder is included has been developed in a topsy-turvy manner. The current law is a result of judge made law that is supplemented by the Parliament’s intermittent intervention. This has resulted to a body of law (homicide law) that is characterised by massive lack of clarity and coherence in terms of the rules made.13 A major overhaul needs to be made in order to create fairness and justice to both parties in accordance to the law. Furthermore once the grading and labelling of the offences have been made the lines will be simply drawn in the different categories as a matter of legal reasoning. In the end it will be a matter of political judgment driven by public debate. Bibliography Coke, Edward. Institute of the Laws of England: Concerning High Treason, and other Pleas of the Crown. And Criminal Clauses. London: Printed for E and R.Brooke, 1797. Great Britain. - Laws & Statutes. - VIII. Elizabeth II., and Christopher Hollis. The Homicide Act. [The 1957 Act, with an Analysis]. 1964. Horder, Jeremy. Homicide and the Politics of Law Reform. Oxford: Oxford Univ. Press, 2012 Read More