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A plea for rationality in the law of murder*

Published online by Cambridge University Press:  02 January 2018

William Wilson
William Wilson*
Affiliation:
Brunel University
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Extract

It is generally agreed that the law of murder is in need of reform. The scope of the reform necessary has however become the subject of increasingly robust debate. The retreat from Hyam, it has been argued, leaves us with a law of murder which is both too wide and too narrow to justify the continued bifurcation of murder and manslaughter. believe this objection to be justified but consider equally that the substantive aims of a two-tiered law of homicide are not, as some believe, incompatible with doctrinal rationality. The task of criminal lawyers therefore must be to attempt to effect the necessary reconciliation of substance with form. I shall argue that central to this enterprise is the maintenance of the dividing line between intentional and reckless killings but that a definition of intention must be adopted which incorporates certain categories of risk-taking. As the definition now stands, the wrong categories are incorporated at the expense of the right ones.

Type
Research Article
Information
Legal Studies , Volume 10 , Issue 3 , December 1990 , pp. 307 - 324
Copyright
Copyright © Society of Legal Scholars 1990

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References

1 Lord Goff, ‘The Mental Element in Murder’ (1988) 104 LQR 30 (hereafter Goff); Glanville Williams, ‘The Mens Rea for Murder; Leave it Alone’ (1989) 105 LQR 397.

2 [1975) AC 55.

3 Goff, p 30.

4 See Alan, Norrie, ‘Oblique Intention and Legal Politics’ (1989) Crim LR 793.Google Scholar

5 Andrew Ashworth, ‘Reforming the Law of Murder’ (1990) Grim LR 75; House of Lords, Report of the Select Committee on Murder and Life Imprisonment (Session 1988–89, HL, paper 78).

6 Hyam v Dpp (1975) AC 55.

7 R v Moloney (1985) 1 AC 905; R v Hancock and Shankland (1986) 1 AC 455.Google Scholar

8 Glanville Williams, op cit, n 1, p 388, italics added.

9 Law Com No 177, Draft Bill, clause 18. The qualification is the insertion of‘in the ordinary course of events’.

10 Cf, Goff supra, n 1, also Duff ‘Mens Rea and the Law Commission Report’ (1980) Crim LR 147; Smith, ‘A Note on Intention’ (1990) Crim LR 85.Google Scholar

11 cf Glanville Williams, op cit, at p 388.

12 Hyams v DPP, supra, n 6 at p 77.

13 Dpp v Morgan (1976) AC 182 at 214. Google ScholarPubMed

14 R v Steane (1947) KB 957.Google Scholar

15 Glanville Williams, The Mental Element in Crime; of Denning, Responsibility before the Law (1961) p 27.

16 Glanville, Williams, ‘The Mental Element in Crime; Leave it Alone’ (1989) 104 LQR, at p 389. Google Scholar

17 Glanville Williams, Criminal Law: The General Part (2nd edn, 1961).

18 Duff, ‘Intention, Mens Rea and the Law Commission Report’ (1980) Crim LR 147.

19 Alan Norrie, op cit, 806. Norrie's view appears to be that doctrinal contradictions are ineradicable due to the inevitable and ongoing tension between formal and substantive rationality. This appears a trifle defeatist and ignores the capacity for contradictions to act as signposts for doctrinal development.

20 See for example R v Bourne (1939) 1 KB, Coincidentally the duress case of the same name (1952) 36 Cr App Rep found Goddard LCJ suggesting definitional parameters for the development of the defence based upon the accused's intent. See also the movement of self defence and consent out of the category of special defence, back into the definitional elements; R v Kimber (1983) 1 WLR 1118; R v Gladstone William (1984) 78 Cr App Rep 276; DPP v Morgan; R v Steane, supra. Cf DPP for Northern Ireland v Lynch (1975) AC 653.

21 Supra.

22 Dudley, R v and Stephens, (1884) 14 QBD 373.Google Scholar

23 Criminal Law: The General Part, (2nd edn, 1961).

24 For a contrary view see Goff, , op cit and note 26. These two positions can be reconciled by distinguishing between intended consequences and intentionally caused consequences, Duff supra, n 18 and Glanville Williams, Oblique Intent (1987) CLJ 417.Google Scholar

25 Ashworth, , ‘Reforming the Criminal Law’ (1990) Crim LR 75.Google Scholar

26 Goff op cit, at p 54.

27 Ibid, p 57.

28 [1975) AC at 86.

29 Goff op cit, at p 47.

30 [1975) AC at 76.

31 Rupert Cross, ‘Reports of the Criminal Law Commissioners …” in Reshaping the Criminal Law, ed Glazebrook. For simplicity's sake I have changed the nature of the ‘game’ to a nearer approximation of Russian roulette, with one gun and a variable number of bullets.

32 This is not to ignore the fact that the latter specifically desires the death of his enemy but rather to remove this desire from the field of relevance. For example it is submitted that if the incompetent marksman had no committed desire to kill his victim but nevertheless aimed at him happy in the knowledge that, kill him or not, he would enjoy the thrill of exposing him to the risk, the relevant attitude is identical. The House of Lords Select Committee's proposal to remove the mandatory life sentence might make this suggestion more politically acceptable. Report para 119.

33 Cunliffe, v Goodman, (1950) 2 KB 237 at 253.Google Scholar

34 Smith, Dpp (1961) AC 290.Google Scholar

35 Spencer, , ‘Motor Vehicles as Weapons of Offence’ (1985) Crim LR 29.Google Scholar

36 Cunningham, R v (1982) AC 566.Google Scholar

37 Their method of expressing this does differ significantly, however, as previously mentioned.

38 CLRC 14th Report, Offences against the Person, Cmnd 7844 (1980), para 17–31.

39 Clause 56

40 Earl, Ferrers; HL Deb vol 512.Google Scholar

41 I am indebted to John Andrews for this point.

42 Smith, J. C, ‘A Note on Intention’ (1990) Grim LR 85.Google Scholar

43 Supra, n 10.

44 Smith, op cit, n 42.