Evaluation of Murder Essays

Decent Essays

Evaluation of Murder

A good law should be clear so both the judge and jury can apply it in a reasonable way, this makes it easier for the jury to follow and provides a consistent outcome. It should be consistent, if not one person could do exactly the same crime as another and they could have completely different sentences. Consistency makes the law fair which is another important element of a good law. The law should reflect the degree of fault and punish the defendant in a suitable way; this also provides justice for the family within the law. It should also provide a defence this also makes the law fair and also provides justice for the defendant as it will reflect the degree of fault. A good …show more content…

In Omissions the duty in certain relationships is solely case law, this means you must wait for a case to happen before you can know whether a duty exists. This means the law might be flexible but it is not consistent. A possible reform would be to pass legislation setting out the situation where a duty exists. However, it would be difficult to come up with a definitive list. The law commission report in 1993 suggests only omissions would count in serious offences against a person.

For the mens rea there is a problem with the wording, "malice aforethought either expressed or implied". Lord Gibbord 1988 said "malice aforethought" was misleading as you don't need to have malice (i.e. spite) or aforethought (i.e. planned or premeditated). The Mens Rea for murder is interpreted as an intention to kill or cause GBH. This is a common law definition and is subject to change, making it flexible but also causing uncertainty.

There are problems with intention also because it has never properly been defined and cases like Moloney and Hyam only set out guidelines and judges tend to alter between the two. This causes confusion and uncertainty and leads to jury's verdicts being unfair and inconsistent. It also means that the decision is opened up and leads to members of the jury being influenced by personal prejudices.

The mens rea of implied malice means a defendant can be convicted

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