Sir Edward Coke stated in the Third Part of his Institutes that "of all felonies, murder is the most heinous". As such, murder has always received the most severe punishment the law could give; a law of King Canute stated that Aberemord 'caedes manifestae' was punishable by death without fine or commutation. This was re-enacted in King Henry I's Charter of Liberties in 1100. A 1531 Statute of King Henry VIII enacted that any person found guilty of willful murder with "malice prepense" was to be excluded from the benefit of clergy. This prevented any leniency towards the offence. A 1752 Act of King George II "for the betting preventing the horrid crime of murder" prescribed aggravated forms of the death penalty and further demonstrated the law's attitude to the punishment of murder. Indeed, this was the foundation of the law's attitude to punishment of murder until the enactment of the Homicide Act 1957. Section 5 of this Act, for the first time, distinguished between murders that would receive capital punishment and those that would not. This was a step forward for the law of murder and was the result of much needed reform. It was the first time some murders would not receive the most severe punishment the law could give. However, the most severe punishment the law could give was changed with the abolition of the death penalty by section 1(1) of the Murder (Abolition of the Death Penalty) Act 1965. This created the mandatory life sentence for murder; the sentence being fixed by law. It was seen by the Government as the only "appropriate punishment" to replace the death penalty and a compromise to facilitate the transition from capital punishment. This may have been so, but it was also the platform for a war between the Judiciary and the Government which has been waged ever since.
[...] The Law Reform Committee Essay: Murder (Rethinking the Mandatory Life Sentence) Sir Edward Coke stated in the Third Part of his Institutes that . of all felonies, murder is the most hainous”[1]. As such, murder has always received the most severe punishment the law could give; a law of King Canute[2] stated that Aberemord—caedes manifestae—was punishable by death without fine or commutation, this was re-enacted in King Henry I's Charter of Liberties in 1100[3]. A 1531 Statute of King Henry VIII[4] enacted that any person found guilty of willful murder with “malice prepense” was to be excluded from benefit of clergy, this prevented any leniency towards the offence. [...]
[...] Marylebone in R v Howe[12], and Lord Irvine of Lairg, who stated that: . it is beyond argument that murder embraces such a multitude of diverse sins that the single mandatory life sentence must be inappropriate”[13] This is certainly true. One only has to look at horrific cases like the “Moors Murderers” or the despicable murder of the 2 year old James Bulger on one end of the culpability scale to cases like Clegg[14] to see how greatly culpability can differ and, accordingly, the need for sentencing to reflect this. [...]
[...] c.1 An Acte that no pson commyttyng Pety Treason Murder or Felony shalbe admytted to his Clergye under Subdeacon. 25 Geo c.37 [2002] UKHL 46 Ibid, at para Mandatory life sentence gets in way of justice, say judges , www.timesonline.co.uk: accessed 7th September 2009 A History of English Criminal Law, L. Radzinowicz, Stevens and Sons Ltd Adapted from Utopia by Sir Thomas More, cited in A History of English Criminal Law, L. Radzinowicz, Stevens and Sons Ltd pp.259-260 Royal Commission on Capital Punishment, Royal Commission on Capital Punishment 1949-1954: Report (1953) Cmnd 8932, p.6, para.2 [1987] AC 417 House of Lords Hansard November 1989, col [1995] 1 AC 482 Ibid Law Commission Consultation Paper No Royal Commission on Capital Punishment, Royal Commission on Capital Punishment 1949-1954: Report (1953) Cmnd 8932, para [1957] 2 QB 664 This can be translated as has as his work the law and he is to find a punishment applicable to the offence, His duty is to pronounce this punishment” Article 5 of the Code Civil expressly prohibits a Judge from doing anything other than applying the law. [...]
[...] The contention of the Government that the mandatory life sentence should be maintained because it is the most serious punishment is countered by this. The expounding by More of the “weal public” would seem to address the Government's argument of public confidence; the mandatory nature of the punishment is empty and meaningless. It would appear that the only purpose the mandatory nature of the life sentence serves is to make it look to the public as if something were being done by the Government in the prevention of crime. [...]
[...] It is wrong that a person who did not intend to kill should be charged with murder and that, further still, this person should then receive a mandatory life sentence—it is an anomaly which must be remedied. Having established both the arguments of the Government and the Judiciary with regards to the mandatory life sentence for murder, it may aid us to look across the Channel and see how the French deal with the matter and see if this brings us a solution. [...]
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