The Need for Caution in Reforming the Law Relating to Murder
| DOI | 10.1177/0032258X9606900409 |
| Author | G.J. Durston |
| Published date | 01 October 1996 |
| Date | 01 October 1996 |
| Subject Matter | Article |
G.J. DURSTON, MA, Dip.L, LLM
Barrister;Associate Professor
of
Law, University
of
Niigata, Japan;
Senior Lecturer in Law, Kingston University,
UK
THE NEED FOR CAUTION IN
REFORMING THE LAW
RELATING TO MURDER
Introduction
There has recently been a strong campaign for amending the law relating
to murder in England and Wales. Some proposals are clearly sensible,
such as abolishing the centuries old "year and a day" rule to take account
of the huge changes in medical technology in the last few decades, with
the attendant possibility of prolonged survival after massive injury.
Others are worth serious consideration, such as the suggestion that there
should be the creation of a new statutory offence of causing death by
the use of excessive force for a legal end (ie, a situation where some
force might be justified), to catch those difficult cases that stray
fractionally to the wrong side of the boundary of reasonableness, such
as the Clegg' case (and open to policemen, soldiers and civilians alike).
Further suggestions are more controversial, striking at the existing
concept of murder, including current notions of premeditation as part of
the mens rea of the offence. These proposals usually take the form of
suggesting an expansion or widening in interpretation of the statutory
provisions dealing with intentional manslaughter, that is the special
defence of provocation and diminished responsibility, currently provided
for by ss.2 and 3 of the 1957 Homicide Act. In particular, the Thornton
and Ahluwalia cases' have raised the suggestion that the partial defence
of provocation should not be confined to a sudden and temporary loss
of control, but should also, in some situations, be open to people who
have had a "cooling down" period and might no longer be acting in "hot
blood". Additionally, there has been a strong campaign to abolish the
mandatory life sentence for murder.
The above suggestions often appear plausible and very attractive, and
have gained many distinguished supporters. With regard to the abolition
of the mandatory life sentence this has included support from both the
recently retired Lord Chief Justice, Lord Taylor and, previously, Lord
Lane. Some recent decisions have suggested that there is also a greater
judicial willingness to entertain such defences in this type of case
(provocation and diminished responsibility), as in the substituting of a
manslaughter verdict for a murder conviction in the case of Emma
Humphreys on July 7, 1995 by the Court of Appeal. Indeed it has been
asserted that it is now common for murder charges not to be attempted
in the case of battered defendants, though the more radical suggestions
hinted at in Ahluwalia have yet to be confirmed by an appellate court.'
October 1996 The Police Journal 339
To continue reading
Request your trial