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The Law Commission (LC) has described the law of murder as a "rickety structure built on shaky foundations", thus one can discern from this that the current offense of murder is unstable and in need of reform. The origins of the offense can be traced back to 1613 whereby Lord Coke articulated the definition as " the unlawful killing of a reasonable creature in being under the king's peace with malice aforethought". Since 1613 there has been little attempt to elaborate the meaning of this definition, save for the Homicide Act 1957, making it archaic and out of touch with modern society. Therefore, I shall aim to explain the inherent issues with this definition and why it needs updating. Furthermore, the law of murder has been seen to be in breach of the contemporaneity rule - a fundamental underpinning of criminal law. Decades of case law has seen the development of a mismatch of common law rulings reducing the mens rea required for that of murder. Many academics have noted that this seems odd considering murder is the most serious offence in the land. Thus I shall propose that murder be codified into statute, firstly to modernise the law and secondly to uphold the core principle of Parliamentary supremacy.
Although, it may not seem of much importance, definitions of offences are of paramount importance within the criminal law. When scrutinising Lord Coke's original definition, the word malicious automatically incites feelings of anger and wickedness which is not required for the law of murder. This definition would contravene cases of murder where the victim seeks to kill themselves but is physically incapable and requires the assistance of another. This is pertinent in cases of euthanasia whereby the victim is disabled and seeks the assistance of a loved one to end their life. A case example would be that of R v Pretty where Diane Pretty wanted her husband to end her life without being charged with murder. Therefore, Lord Coke's definition does not account for cases of murder out of love or compassion. However, this is not the most damning piece of Coke's definition, the term 'aforethought' suggest planning or premeditation which is not a prerequisite for a murder charge; though this is generally thought correct. The offence of murder requires no planning and in most cases happens in a split-second reaction. The 1613 definition is thus inaccurate and misleading and is in need of reform in order to align with and reflect modern society but also to esnure the general public have access to understandable law.
Although the definition of murder creates adverse problems for lay persons attempting to understand it, there is a more worrying problem inherent in the law of murder. The mens rea is currently recognised as an 'intention to kill or intent to cause really serious harm resulting in death'. Therefore, to be found liable for murder, a defendant may not need to intend to kill their victim but merely cause them really serious harm which results in death. This is otherwise known as the implied malice rule, first introduced by Lord Goddard in R v Vickers . The rule has been crticised since its introduction and has remained controversial ever since with Lord Edmund Davies commenting that its inclusion is tantamount in making murder a crime of constructive liability. It was condemned by the Law Commission in the very same year as the precedent in Vickers was passed. The LC claimed that it contravened Parliaments intentions when they passed the Homicide Act 1957 which stated a defendant should only be liable for murder when they intended to kill. Clearly this ruling puts parliament at odds with the judiciary and breached Parliamentary supremacy, in effecting judicial legislation. Perhaps one must ask themselves why this ruling has been so widely criticised. If D intends to cause serious harm by breaking V’s arm but V dies from his injuries, D will be convicted of murder. This seems harsh given that murder is deemed to be the most serious offence in the land.
This provides a basis for the second reason for reform, If D is convicted of murder through implied malice then in the eyes of the law he is convicted of the same crime as those with express malice (intention to kill). D will receive the same sentence as those who intend to kill their victim, this is mandatory life with a minimum tariff of 15 years. Not only does the implied malice rule mean those who have no intention to kill will see themselves landed with a life sentence but the ruling also impedes the principle of fair labelling. This is the idea that the name given to the defendant matches up to their crime. For instance, a criminal who commits kidnap will be known as a kidnapper. However, those convicted through the implied malice rule must be tainted with the label of a murderer which seems unfair given they never intended to kill.
The Law Commission aims to rectify the sentencing issue by proposing a two-tier system, similar to that of the American criminal justice system. This would split murder into two with first degree murder and second degree, with the former compromising those who intend to kill and those who intend to cause really serous harm but also realise a risk of death. The latter would class those who intend to cause really serious harm but do not foresee the death of their victim. A first degree murder charge would see those convicted facing a mandatory life sentence whilst those convicted under second degree would be subject to judicial discretion. This would solve the problem of sentencing and reflect the level of blameworthiness of the defendant but would still see a second degree murderer termed a 'murderer'.
The last reason for reform of the law of murder comes from one of the fundamental foundations of the criminal justice system, the contemporaneity rule. Everyone who has ever stood outside of a criminal court has seen a set of scales forming a statue atop a court. These refer to the contemporaneity rule which is the concept that the actus reus and the mens rea must coincide in wight to produce a fair sentence. The law of murder conforms to this when a defendant has fulfills the actus reus by killing this equals the mens rea or intent for that killing resulting is mandatory life. However, when considering implied malice, the defendant will kill but will not intend to, meaning the actus reus and mens rea do not match up resulting in a sentence that is disproportionate and not reflective of the defendants blameworthiness. In effect it makes the offense of murder one of constructive liability as aforementioned. This will see the defendant guilty of a much more serious crime than they intended to commit.
In conclusion, it can be shown that the law of murder is unsatisfactory. Its archaic origins have resulted in an out-of-touch definition that is ill-suited to modern society. Its uncodified nature has seen the judiciary step in and make an error in law which has left the Law Commission in disbelief it has taken nearly 70 years to be brought to their attention. Compile these with the issues of sentencing and social stigma it is clear the law of murer is verging on bringing the criminal law into disrepute. Therefore, it is time Parliament codify the law and take on board the Law Commission's recommendations.see more