The Mens Rea for Murder

The law of murder is a very complex area which goes back to the XI century when the criminal and civil law was distinguished for the first time. Those convicted of murder are subject to an automatic life sentence. This does not mean that they spend the rest of their lives in prison, but serve a ‘minimum term’ (which starts at 15 years for adults), after which they can be released (on ‘licence’). The licence is conditional and lasts up until the offender’s death.

It is the most serious offence of homicide. Present common law definition of murder is “unlawfully killing of a human being under the Queen’s peace with malice aforethought”. This definition includes two parts: first the objective element of crime called actus reus and second the mental element called mens rea. Actus reus is a guilty act meaning unlawful killing, the second element involves however more complex and ambiguous area of law. The term mens rea comes from Latin and means ‘guilty mind’. It is to ensure that only blameworthy defendants are punished for their crimes. There are different forms of mens rea depending on a particular crime. According to the Homicide Act 1957 (s1) mens rea for murder is ‘malice aforethought’ which was interpreted by the courts as an intention to kill or to cause gbh. Nevertheless murder is a common law offence so its elements were further developed in case law. The facts of these cases provide startling and vivid examples of “malice aforethought”.

Going back to late 1950s it can be seen that the law on murder was pretty straight forward as the mental element was based only on direct intent which covered intention to kill called express malice or intention to cause grievous bodily harm also called implied malice.

Despite the simplicity of the law there were issues with cases where the defendant did not intend to kill or seriously injure the victim but he knew that his act would be likely to bring this result about. In the following cases courts developed oblique intent which helped to cover mentioned situations but it was very difficult to apply in practice.

In Hyam the judges took different view to the previous judgements. The court reversed its position arguing that a desire should not be confused with intention which could also be established if the defendant knew that there was a serious risk that death or grievous bodily harm would ensue from his acts. It was also argued that if the result of defendant’s actions were seen by him as highly probable to happen then it meant that it had been intended. This view contradicted with s8 of Criminal Justice Act 1967 which required that “a jury shall not be bound to infer whether a defendant intended or foresaw a result of actions by reason only of its being a natural and probable consequence but shall decide by reference to all the evidence”. This has been interpreted as requiring a jury to consider not only the subjective state of mind of the accused but also to look at the circumstances of the case. This new subjective test for mens rea raised concerns within society as a lot more people could be convicted of murder which carries mandatory sentence of life imprisonment. The decisions in Hyam were not consistent, some judges were worried that depending on foresight of probable consequences would blur the distinction between murder and manslaughter. One of the dissenting views was the one of Lord Hailsham’s who despite dismissing the appeal stated “I do not believe that knowledge or any degree of foresight is enough.” From the inconsistent judgements in this case it can clearly be seen that the questioned point of law was not fully resolved and was still in need of further reforms. In later cases courts were trying to address three main issues, firstly whether subjective or objective test should be used to identify intention. Secondly, what degree of probability of foresight is needed to proof someone intended the result of his act. Thirdly, whether the degree of probability should be equal to intention or whether it is evidence from which the jury may infer intention.

Oblique intent was not applicable in every case. The test for mens rea was still problematic especially for the jury that in Moloney found the defendant guilty of murder for the act committed with no malice. It could be argued that this showed that either the test for mens rea was unclear or the lay element in a criminal trial was illusory. The case reached House of Lords’ decision which showed that the test for mens rea narrows as the level of foresight required increased. This judgement reconfirmed s8 Criminal Justice Act (1967), by severing the direct link between foresight of consequences and intent instead leaving it to the jury to decide. Furthermore, Lord Bridge gave guidance that was to be followed when deciding whether the defendant had required intention: “First, was death or really serious injury in a murder case (…) a natural consequence of the defendant’s voluntary act? Secondly, did the defendant foresee that consequence as being a natural consequence of his act? The jury should then be told that if they answer yes to both questions it is a proper inference for them to draw that he intended that consequence”. Natural consequences narrowed the test for intention, and as Mr Moloney did not foresee that his act would cause death as a natural consequence he was acquitted of murder and convicted of manslaughter. If the judges followed Hyam the result would most likely have been different. Nevertheless, Lord Bridge made it clear that foresight was not intention in law and he drew a distinction between intention and recklessness. He said that while foresight can amount to recklessness in law, in murder cases foresight was only evidence of intention.

However, Moloney left a problem with regards to the degree of probability required. This was considered in Hancock and Shankland. I this case Lord Scarman touched on these issues and argued that level of probability is very important element in determining the intention and was missed out by the judges in Moloney. He also said that the guidelines from Moloney were unsafe and misleading and that there should be a reference to probability itself. He stated that the judges should have explained that the greater the probability of a consequence was the more likely that the consequence has been foreseen and that if it has, it was more likely that the consequence has also been intended.

The degree of probability was still causing problems and the cases of Moloney and Hancock and Shankland were reviewed by the Court of Appeal in Nedrick which reformulated the test. This is a leading case where judges decided to narrow down the test even more as people who should not be brought within the net of murder law were found in it. For instance, if this case was applied to Hyam which had similar facts, it would be likely that the conviction would was for manslaughter. Lord Lane CJ in Nedrick argued that the jury are not entitled to infer intention unless they are sure that “serious bodily harm was a virtual certainty as a result of the defendant’s actions and that the defendant appreciated that such was the case.”

The final case in this area is Woollin, possibly the most important, as the judgement from it contains the current law with regards to foresight of consequences and intent. Nevertheless, the Crown Court decision in that case was not pleasing as the judge told the jurors that they might infer intention “if they were satisfied that when the defendant threw the child he appreciated that there was a substantial risk that he would cause serious harm to it”. Court of Appeal disagreed that there was any misdirection so the case reached the House of Lords where the Court of Appeal’s decision was overruled and Woollin’s conviction was reduced from murder to manslaughter due to misdirection given by the judge who mentioned ‘substantial risk’. It was held that this could have confused the jury and substantial risk was not enough to infer intention. Judges in this case both approved the guidelines from Nedrick and changed the word ‘infer’ to ‘find’ in the new guidelines for mens rea for murder. Intention could only be found if the result of defendant’s action was virtually certain and that he was also aware of that fact. It also could be seen that the application of the word ‘find’ rather than ‘infer’ could be subject to interpretations. First on is that it could potentially make it harder to convict a person if they say they did not foresee the consequences of their actions which is good as people who killed someone incidentally should not be judges the same way as those who killed with premeditation. Second argument would be that it would be allowing too many defendants to escape conviction.

Concluding this chapter it can be seen that the issues of mens rea meaning foresight of consequence and intention have changed and developed much over the last forty years. The first case of DPP v Smith (1961) established a direct link between foresight of consequences and intent, based on a subjective test, even if the event was only likely to occur and also defined ‘grievous bodily harm’ as very serious. It could be argued that Section 8 of Criminal Justice Act 1967 was passed in order to separate foresight of consequences and intent and to make a distinction between the two. Nevertheless, the law has become clouded again in Hyam where it was decided that foresight of consequences could be the same as intent if the chances were highly probable. The following case of Moloney brought the link between foresight of consequences and intent back. The judgement in in this case established directions to be given to the jury known as the Moloney Guidelines, which were criticised in the later case of Hancock and Shankland despite the judges in this case refused to put forward a new guidelines. The guidelines established in Nedrick are still valid which means that intent can only be inferred if the consequences of defendant’s actions were ‘virtually certain’. Major change in Woollin was replacing the word ‘infer’ with the word ‘find’ what as mentioned earlier could be interpreted as being more discretionary for the jury to make a decision.

The questions that should be answered in that case are ‘What killing should be classified as murder?’ Shall it be classified as far as recklessness? Shall the mens rea for murder go beyond direct intention and if so where the line should be drawn between murder and manslaughter? These issues will be further discussed in next chapters.

The Law Commission in 2006 stated that foresight of a virtual certainty should amount to intention. This would mean that foresight would again be part of the substantive law, not merely part of the evidence. At present, a person who kills foreseeing death or grievous bodily harm as virtually certain may be convicted of murder. The House of Lords judgment in Woollin goes towards achieving the reform where the defendant not only may be but will be convicted of murder as for now the jury is only ‘entitled’ to find intention and it is still the matter of all the evidence.