David Bourget (Western Ontario)
David Chalmers (ANU, NYU)
Rafael De Clercq
Jack Alan Reynolds
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Criminal Law and Philosophy 1 (2):157-177 (2007)
In a rational system defences should interlock with the elements of the offence to ensure that conviction labels are differentiated according to the defendantâs degree of wrongdoing and culpability. The overall grading structure of criminal homicide, as represented in contemporary doctrine, goes some way to reflect this ethic. But the substance lacks precision and, in some key details, moral coherence. The recent Law Commission Consultation Paper, in a pragmatic and sensible attempt to rid the law and procedure of murder of the malign influence of the mandatory sentence, has unnecessarily compromised such structural coherence as it currently enjoys and which could properly form a satisfactory basis for reform already precise and morally coherent. This is evident both in relation to the abandonment of the attack based template for the fault element in murder, and also in the unwillingness to view the partial defences as affecting the wrong in homicide as opposed to the grade.
|Keywords||Murder Structure of homicide Manslaughter Mandatory sentence Murder by attack Reckless indifference Intention Partial defences Murder by omission|
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