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 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.
[...] As we have seen, French law does not have a mandatory life sentence for murder; instead it specifies maximum penalties which it is for the Judge to make using his discretionary power according to the level of culpability in each case. It is simply this regime which we have put the case for—the removal of the mandatory nature of the life sentence is primarily logical and practical, it gives power to the Judge and clearly recognizes that it is purely a judicial decision. [...]
[...] However, after the enactment of the Homicide Act 1957, in Vickers[18], the same Lord Chief Justice held that murder is committed when the defendant intended grievous bodily harm, even in the absence of knowledge or belief that the victim's life would be endangered. This put the Lord Chief Justice and the Royal Commission at odds with each other. This misunderstanding can be likened to a controversial piece of judicial law making in Coke's day. In his Institutes, Coke stated that killing in the course of any unlawful act was murder; this was followed as precedent and led to the execution of hundreds of people who should have been convicted of manslaughter. [...]
[...] We intend to keep the mandatory life sentence for murder . The Government is 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. [...]
[...] 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. 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 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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