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 offense. 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.
[...] Another key argument advanced by the Judiciary and the legal profession in opposition to the mandatory life sentence is the range of seriousness and culpability which the offence of murder contains. The Royal Commission on Capital Punishment (1949-1954) observed: . there is perhaps no single class of offences that varies so widely in character and in culpability as . murder”[11] Two former Lord Chancellors have made similar statements, Lord Hailsham of St. Marylebone in R v Howe[12], and Lord Irvine of Lairg, who stated that: . [...]
[...] The Government are currently legislating on some of the Law Commission's latest proposals for the reform of Homicide law but will not shift from the current policy of maintaining the mandatory life sentence. Former Lord Chief Justice and Senior Law Lord, Lord Bingham of Cornhill concluded his 1998 Newsam Memorial Lecture with the following words: very much hope that a new, open-minded administration will be willing to re-examine the merits of this important question”[22] I entirely agree, and with a General Election next year, it will be interesting to see how a new Government tackles this most pressing and sensitive of issues. [...]
[...] A further argument advanced by the Judiciary and the legal profession is that the common law definition of murder covers cases where the defendant had only an intention to do grievous bodily harm. As the Law Commission pointed out in their 2005 Consultation Paper A New Homicide Act for England and Wales?[16], this is the result of a misunderstanding between Parliament and the Judiciary which existed before the Homicide Act 1957. The then Lord Chief Justice, Lord Goddard, told the Royal Commission on Capital Punishment that: . [...]
[...] French law does not have a mandatory life sentence for murder—exactly the reform of the law for which we have put the case for. Prison perpétuelle was abolished by the Code Pénal of 1791 in response to calls for the reform of the criminal law in the Cahiers des Doléances ordered by King Louis XVI to be drawn up when he summoned the Etats Généraux in 1789. It was drafted by Louis-Michel Le Peletier, Marquis de Saint-Fargeau, who felt that punishments should be moderate. [...]
[...] 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. In Clegg, their Lordships per curiam: . [...]
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