The introduction of the Criminal Justice Act 2003 has had the effect of rewording the legislation so that now the prosecution only has to prove that the intention of the defendant was to cause serious bodily harm. Schedule 21 of the CJA does go on to suggest that where the prosecution can only prove an intention to cause serious bodily harm rather than murder that this could be regarded as a mitigating factor when sentencing the defendant.
It has recently been proposed that there should be more leeway on charges of murder. Many believe that the courts should insist that prosecutors have to prove the direct intent element of men’s rea was in existence at the time of the killing.
In July 2005 discussions took place between the Director of Public Prosecutions and the Law Society to establish if there would be support for a review of the criminal law. The aim of the review was to create a tier system similar to that in existence in America. Under the tier system, the courts would be able to consider the actions of the defendant in relation to the degrees of murder available to the prosecution.
The present system allows the defendant to plead guilty to manslaughter where the direct intent element cannot be proven beyond a reasonable doubt. By introducing the tier system alternative charges in relation to murder would be available and the court would not be forced to accept the manslaughter plea. The main thrust of the discussion seemed to be that the new system would be welcomed as there is a lot of frustration in the present system. The prosecution sees the present system as inflexible when dealing with the criteria for murder.