Moloney Murder Case

Murder is the unlawful killing of a reasonable creature in being under the Queen’s peace within any country of the realm with malice aforethought express or implied. The Law Commission Report ‘Murder, Manslaughter and Infanticide’ (2006) described the law on murder as a “rickety structure set upon shaky foundation”.
It mentions the serious harm rule which is where the defendant is liable for murder if they kill with the intention of inflicting serious harm as well as if they intend to kill. Under the present law there is a lack of distinction between intent to kill and intent to cause GBH. For example, if a person intended to cause GBH and was unaware that death would occur they would be guilty of something they didn’t foresee. This has been
criticised by the Law Commission Report and by judges. In Cunningham, Lord Davies stated that he thought the mens rea of murder should be limited to an intention to kill. However, in Vickers, Lord Goddard CJ said that “murder has always been defined as the intention to kill and intention to cause GBH”. This makes the offence of murder too wide as judges must impose a life sentence regardless of motive.
This would result in someone who believed their conduct wouldn’t result in death being placed in the same category as someone who intended to kill such as a serial killer. It also ignores the motive behind the killing. For example, a mercy killer such as Inglis has a different motive than a serial killer such as Shipman but would both be given the same sentence. (Sentencing Guidelines)
There is a problem with the bit by bit development of the law of intention.
In Hyam (1975) intention was to be distinguished from desire and foresight of probable consequences. In Moloney (1985) Lord Bridge stated that foresight of consequences isn’t intention, it’s just a rule of evidence. In Hancock and Shankland (1985) the judge said that the rule in Moloney was unsafe and requires a reference to probability. In Nedrick (1986) the jury must find that death or serious harm was virtually certain and the defendant realises this. In Woolin (1998) the meaning of intention was that the consequences must be virtually certain and the defendant must realise this. This confuses the law as it’s constantly changing and isn’t solid. It also builds on previous meaning which may make it confusing for a jury as it isn’t clear if it’s a rule of law or
evidence.
In common law self-defence requires the force to be reasonable in the circumstances with the burden of proof on the prosecution to establish if the force was excessive and therefore unlawful. There have been calls for change where self-defence fails in relation to a murder charge due to excessive force. The argument is that in such cases the jury should have the option of returning a manslaughter verdict rather than having the approach of murder or no criminal liability. This is illustrated in Clegg where the defendant was charged with murder and his appeal was rejected on the grounds that he had used excessive force. However, the Court of Appeal stated that “a conviction of manslaughter would reflect more clearly the nature of the offence”.
The defence of duress can’t be used in murder, attempted murder or by those who participate in killing. This is illustrated in Gotts when the obiter dicta from Howe was used to determine that duress was not available for attempted murder. The Law Commission proposes that duress should be a complete defence to murder but with the burden of proof on the defendant.
The Law Commission Report proposed the two tier system to reform the law on murder. This is where there are two degrees of murder: first and second. First degree murder covers killings with intent to kill and intent to cause GBH and the defendant is aware of the risk of death. Second degree murder covers killings with intent to cause GBH but the defendant was unaware of the risk of death and cases where the defendant pleads diminished responsibility. This would allow judges to differentiate between intent to kill and intent to cause GBH. It would also create distinction in relation to motive as the sentences would be different: mandatory life sentence and discretionary life sentence.
The law on voluntary manslaughter was reformed in 2009 however there are still criticisms with the defence.
A problem with the defence of diminished responsibility is that the burden of proof is on the defendant. This could be a problem as it can put them at a disadvantage because it might be breaching Article 6 (2) European Convention of Human Rights which states that everyone should be innocent until proven guilty. However, courts have stated there isn’t a breach. Developmental immaturity is not included in the defence of diminished responsibility despite the Law Commission proposing that it should be included. Parliament included learning disabilities and autism spectrum disorder because they come under the term. However, developmental immaturity is not the same as learning disability or autism spectrum
disorder.
A problem loss of control is the general structure because loss of self-control is still the heart of the defence. There is a lack of a clear definition of loss of self-control
The Coroners and Justices Act 2009 replaced the partial defence for provocation with loss of control (LOC). In terms of its effectiveness compared to the old law, some argue that LOC is wider as there is no requirement for it be a sudden loss of control, and fear of serious violence can be considered. However, it can also be seen as narrower as the defence is limited; things said or done must be ‘extremely grave’ in nature and have caused a justifiable sense of being wronged in the defendant. ‘Extremely grave’ and ‘justifiably’ are very subjective, allowing for too much leeway and variability in an unskilled jury.
In addition, sexual infidelity is no longer a sole qualifying trigger (QT) but it can be considered in conjunction with other QTs (Clinton). It has also been argued that it is unfair sexual infidelity is excluded as a qualifying trigger; it has been put forward that many people would lose control after finding out about partner having an affair. Validating it in one scenario and voiding it in another highlights the ambivalence of this area of law and it’s lack of direction. The LC’s proposed reform is the removal of loss of control in favour of manslaughter (see above). This proposition is backed by cases where, for example, the defendant is in an abusive relationship with the victim and they suffer from a loss of control, spurred by combination of circumstantial emotions, e.g. R v Ahluwalia.