Criticisms of Murder and Voluntary Mansalughter Essay
Criticisms of Murder and Voluntary Mansalughter
Murder is the most serious form of unlawful homicide. Murder is a common law offence, and has never been defined by statute. The most commonly accepted definition is the one given by the early 17th century judge, Sir Edward Coke. He defined murder as: ‘The unlawful killing of a reasonable person in being under the Queens peace with malice aforethought, express or implied. ’ The actus reus of murder is the ‘unlawful killing. ’ Some killings are recognised by the law as being justified. For example a person who kills in self-defence or in the prevention of a crime, provided that the force used was reasonable in the circumstances, will not be guilty of an unlawful killing.
However a criticism of this is that the ‘reasonable’ force used in self-defence or in the prevention of a crime is subjective to each individual and it depends on how scared each person would be in that circumstance for example a woman who is quite confident and fearless could be attacked on the street by a man and she just pushes him away and runs however a woman who is extremely terrified in the situation could react more irrationally and hit him with a weapon such as an iron bar to get him away from her because she is so terrified, therefore it is hard to dictate to some-one what reasonable force is as reasonable force to me could be completely unreasonable force to another.
A reform I would suggest for this would be to clearly set out guidelines within this as what would be considered unreasonable force so that it is not as subjective to each individual. The next part of the actus reus of murder is ‘a reasonable person in being’. A reasonable person in being is considered to be any person in being, a baby is only considered to be such when it has been fully expelled from its mothers body. A criticism I think of this is that this should be allowed.
I think after abortion is made illegal (24 weeks) because doctors considered the foetus, a baby then it should be considered a reasonable person in being, especially if the woman is visibly pregnant as after 6 months the baby has a chance of survival on its own and therefore is not wholly dependent on the mother and is a reasonable being. To reform this I would make it so that after 24 weeks pregnancy it is considered murder if you harm the mother and the baby dies as a result for example a stab wound as it is medically considered a human so it should be legally treated as a human to. The mens rea of murder is ‘malice aforethought, express or implied’. There is actually no requirement for ‘malice’ to be present.
It is possible to imagine a situation where a killing takes place from motives of love or compassion. An example, might be of a parent who gives a fatal overdose of drugs to a child suffering from an intolerably painful terminal illness such as in Gray 1965. However that parent will still be convicted of murder as would someone who killed someone out of cold blood. I think this is disgusting and I personally think euthanasia should be made legal with the permission from at least 3 different doctors after doing medical checks and mercy killers should not be given the same sentence as cold blooded murders, if a prison sentence at all. Voluntary Manslaughter
Voluntary manslaughter is the outcome of a situation where a defendant who would otherwise be guilty of murder, is able to successfully plead one of two defences: Loss of self-control or diminished responsibility. To plead loss of self-control the defendant must at the time of the offence have lost self-control resulting in his killing a person in one the three types of situations: 1. where the defendant fears serious violence. 2. When certain things have been said or done which amount to circumstances of an extremely grave character, and cause he defendant to have a justifiable sense of being seriously wronged 3. When a combination of the first two situation applies.
A criticism of this is that I believe the second point is extremely subjective to each individual as some-one calling me useless may not affect me as much as It would some-one else and although there are factors to be considered for the defence of things being said such as would another person of the same age and sex of the defendant, the same level of tolerance and self-restraint act in the same way if they was in the defendants circumstance however they are not the defendant and the defendant would have had completely different life experience to anyone else in that court room which made him so sensitive to what happened and I think everyone has their own little qualifying triggers that could potentially make you lose your self-control that no one else would understand.
As a reform to this I would suggest that the court room ask the defendant to justly preach to the court oom as to WHY he lost that self-control, WHY what the victim said to him meant so much to him and WHY he feels to act in that way, I’d also say that there could be guidelines set out as to how grave a situation has to be for it be considered ‘loss of self-control’ rather than it just being so vast because just saying someone could of said something’ is to vast because I don’t think it’s right for someone trying to justify being called an idiot and killing the victim loss of self-control however that may stand up in court due to the second point of the three qualifying triggers.
Another point to make about voluntary manslaughter is that the defendant’s loss of self-control need not now be sudden. It is possible now for there to be delay between the incident causing the loss of control and the killing however the defence revenge is not available to a defendant. This is case even where the defendant loses self-control as a result of one of the qualifying triggers.
I find this extremely confusing as if there is now allowed a period of time between the qualifying trigger and the actual killing, how can you distinguish between some-one genuinely losing their self-control and a revenge attack especially if the defendant has had time to cool off from the situation and then goes and attacks they clearly had time to think about what they had to do so how would you be able to genuinely distinguish the difference? As a reform to this I would suggest the law goes back to when it was provocation, where the loss of self-control had to be ‘sudden and temporary’ that way you can genuinely tell that no thought went into it at all and is not a revenge attack but a genuine loss of self-control.
The second defence of voluntary manslaughter is diminished responsibility which is the Abnormality of mental functioning, however in the abnormality of mental functioning a criticism I have to make is that the abnormality of mental functioning must result from a ‘recognised mental condition. ’ It does include the abnormality of mental functioning which might come from being drunk or under the influence of drugs. The criticism I have to make about this is that what if your drink involuntarily gets spiked by some-one and as a result you act completely irrationally and out of character because you start having anxiety attacks or hallucinating and seeing things etc…. that is not even your fault as you did not voluntarily take the drug therefore I think the court should take this into consideration when it comes to diminished responsibility.