NCJ Number
184701
Date Published
1997
Length
327 pages
Annotation
This book examines the laws of England, Australia, and India regarding the fault elements (degree of criminal intent) required for the crimes of murder and involuntary manslaughter.
Abstract
It assesses these laws against the hypothesis that the fault elements for murder and manslaughter cannot be defined with maximum certainty nor can they be fairly applied to offenders unless lawmakers invoke a schematic approach when defining these elements. The scheme to be applied requires lawmakers to first decide on what other types of fault elements, besides the paradigm fault element of an intention to kill, are deserving of the "murder" label. Only when this decision is made should they proceed to determine what constitutes the appropriate fault elements for manslaughter. Justice and elementary logic dictate that the fault elements for manslaughter should fall one level in degree of moral culpability below the fault elements prescribed for murder. The schematic approach to the fault elements for murder and manslaughter is rarely applied by English judges. They have instead dealt with the fault elements for the two offenses as distinct entities. The schematic approach is more evident among Australian judges, with the result that the Australian law is more coherent, precise, predictable, and fair; however, even Australian judges have been sporadic in their application of the approach. Although the Indian provisions are superior to the English and Australian laws, they do contain certain ambiguities and weakness, many of which have been clarified and addressed by Indian courts. The book concludes with a set of draft provisions that improve upon the Indian provisions and could act as a viable model for reform in English and Australian laws as well. A 186-item questionnaire and a subject index