The first criticism of the law on murder is that the law is harsh on the use of excessive force relating to an unlawful killing. This means that the D, who may have good reason to kill lawfully such as in self defence, could be found guilty of murder by being said to have used excessively. This is seen in R v Martin where the D shot blindly at an intruder; he was found guilty because, although he didn’t know this at the time, the intruder was leaving the property so excessive force is said to have been used. This is unfair because the law doesn’t protect the D who has acted this way to protect his property. However the law can be used to protect society in instances where excessive force has been used; in R v Clegg, the D fired shots after the danger had passed, therefore unnecessarily killing the V.
A second criticism is that the law on murder is overcomplicated, using outdated language and structure. This lacks clarity for judges whilst the concept of oblique intent can be complicating for juries. Whilst the CJA says that the jury must ‘infer’ an intention to kill, the case of R v Woolin in the House of Lords said that the jury should ‘find’ an intention to kill. The Woolin test now effectively ignores the intentions of Parliament which is a problem as the legislature is intended to be sovereign. The Court of Appeal case of R v Matthews + Alleyenne acknowledged this as a problem but until this precedent is repealed by Parliament or the Supreme Court, the law is open to unjust interpretation by judges and juries.
Another criticism of murder is that the only sentence the judge can pass is life imprisonment. A mandatory life sentence therefore means that the judge has no authority to distinguish between the different types of murder. Whilst a life sentence does enforce the doctrine that one life cannot be considered more important than that of another, the judge should be able to for example, distinguish between serial killings and mercy killings. For example in R v Gray, the D killed his terminally ill son out of love but was given a life sentence of a minimum of 15 years and upon release he must spend his life on license.
A final criticism of the law on murder is that the concept of malice aforethought is problematic. This is determined as meaning an intention to kill or cause GBH (implied malice). Therefore the prosecution are only required to prove that the D had the MR for the lesser offence of S18. This concept of constructive intent is grossly unfair as the D may have only had the MR for “serious harm” rather than to kill. For example, if a death arises out of a broken leg, in which the D had intent to cause serious harm, the D would still be liable. In R v Hyam two House of Lords judges wanted to completely abolish the concept of implied malice.
In 2006 the Law Commission suggested a two tiered approach to murder. The first tier would categorise crimes in which the D had only an intention to kill or if he was aware that death would result from his actions. This therefore abolishes the unfair principle of constructive intent and prevents those who have no intention to kill from being given a life sentence. The second tier would be for instances where the D kills but his intention is unclear. A discretionary life sentence would be utilised, therefore allowing flexibility for judges. Therefore mercy killers such as in R v Gray would no longer have to be subject to mandatory life sentences. However in 2008 the government rejected a two tiered approach to murder, concluding that the public didn’t want any changes.
An earlier reform was the 1989 Draft Criminal Code as suggested by the Law Commission. This would involve the codification of murder to resolve the problems of outdated language and