• Join over 1.2 million students every month
  • Accelerate your learning by 29%
  • Unlimited access from just £6.99 per month

aqa law module 4 murder mens rea

Extracts from this document...

Introduction

Q) ANALYSE THE CURRENT LAW ON MALICE AFORETHOUGHT (module 4) The mens rea of murder is defined as intent to kill or to commit grievous bodily harm (gbh) the former is referred as expressed malice, the later as implied malice The first point of criticism is that both these mens rea elements are not defined in any statutory form. This includes the non-fatal offences which are s47 actual bodily harm (s46), wounding or committing grievous bodily harm without intent. Also wounding or committing grievous bodily harm with intent which is obviously s18 the most serious offence, this is above assault and battery. Another point to consider is that the words malice aforethought themselves are very extremely unhelpful, as murder requires neither malice nor any degree of premeditation, indeed the greater majority of murders are actually committed in hot rather than cold blood. The existence of implied malice (intent to commit GBH) was confirmed Lords Goddard in Vickers and this has attracted considerable criticism in the law profession. ...read more.

Middle

This is at odds with the basic priciples of criminal liability, the principles of correspondence whereby the fault element (mens rea) of a crime should relate to the actus reus (guilty mind) and the level of punishment that crime may impose in the case of murder, the mandatory life sentence. It can be further argued that as manslaughter has a maximum sentence a discretionary sentence, there is no need for the possible inclusion of malice in murder. Therefore the defendant who decides to kill while actually intending to commit GBH from either s18 or s20 would always be guilty of manslaughter and could if the crime justifies it receive the same as the murderer, which may seem unfair and unjust. One further major criticism is the definition of oblique intent which has no clarity. Oblique intent arises in a situation where the defendant has undoubtedly caused the unlawful killing, but has done so in the circumstances where he or she argues that the killing was not desired and this result was neither probable nor foreseen. ...read more.

Conclusion

This means that the jury could decide that a defendant charged with the offence of murder did foresee death or GBH as virtually certain, but still decides that the defendant did not intend to kill or commit GBH. This position would be unsatisfactory in relation to any offence, for murder, with its own unique mandatory life sentence, it is far more objectionable. Finally given the judicial decisions in r-v-savage s.47 and r-v mowatt s.20, it is clear that these two offences now involve constrictive liablility for the mens rea of murder malice forethought. For neither of theses offences does the crown prosecution have to prove intention or recklessness as to the actus reus of the offence of murder. This seem illogical and needs to be reformed, and this was looked at in 1994 law commission recommendation for murder. Furthermore although these recommendations have been accepted by all subsequently governments, no action has been taken to incorporate them in any of the major criminal justice acts passed since 1994. ...read more.

The above preview is unformatted text

This student written piece of work is one of many that can be found in our AS and A Level Criminal Law section.

Found what you're looking for?

  • Start learning 29% faster today
  • 150,000+ documents available
  • Just £6.99 a month

Not the one? Search for your essay title...
  • Join over 1.2 million students every month
  • Accelerate your learning by 29%
  • Unlimited access from just £6.99 per month

See related essaysSee related essays

Related AS and A Level Criminal Law essays

  1. Marked by a teacher

    Is the current law on the non-fatal offences against the person satisfactory?

    4 star(s)

    In Mowatt, it was said that the inclusion of "maliciously" in section 18 was superfluous, as the mens rea was provided by the words "with intent". The lack of clarity has led judges to interpret the wording of the offences as widely as possible to incorporate situations that could not have been envisaged at the time of the Act's passing.

  2. Marked by a teacher

    Critical evaluation of murder for A2 law unit 4

    3 star(s)

    a sentence of murder the Defendant must only have the intention for murder. However he thought that it must be changed by parliament, rather than changing the law through decisions on cases. This is a good point to stress the fact that Murder is a common law offence - which means it has been defined by cases.

  1. Looking at the offences of Assault, Battery, Actual bodily harm and Grievous really serious ...

    This was seen in the case of Thomas (1985). To determine the mens rea for a Battery, all the defendant needs to have is the intention. I am now going to look at whether Ann, should be guilty of ABH or GBH for the injuries to Ben. Ben was hit in the face by Ann, whilst she was holding a glass.

  2. Critically evaluate the law on intention as part of mens rea

    Intention can be oblique or direct. Direct intent is where the defendant actually desires the consequences of their actions. Oblique intention gives the concept of intent a wider meaning; the consequence wasn't the defendant's aim but was 'virtually certain' to occur as a result of their actions.

  1. Law A2 unit 4 murder problem answer plan

    he made the decision to jump in to the river to avoid this from occurring - even though he knew that he could not swim and drowned as a result of those actions. In Church (1965) the CA laid down an objective test for dangerousness for a verdict of manslaughter

  2. Explain the meaning of Actus reus and mens rea

    reus of a crime but the result is slightly different to that planned then the mens rea is transferred to the actual result. For example if A wants to kill B and shoots but misses and kills C then A is still liable for murder as his malice (intent)

  1. Sources of the English Legal System and the Relationship between Legislation and Judicial ...

    This method of aid of interpretation was banned because it caused by confusion and dispute than clarity and was an unreliable method. Fortunately, it was allowed officially in the Pepper v Hart case. (Boylan-Kemp, 2008). An example of a case that used in Hansard is Pepper (Inspector of Taxes)

  2. List and explain the six most important cases for the law on insanity, explaining ...

    In T, it could have been decided by the judges that post-traumatic stress was a disease of the mind, and so the appropriate defence is insanity. Because of the decision in Quick, she was able to rely on the defence of automatism.

  • Over 160,000 pieces
    of student written work
  • Annotated by
    experienced teachers
  • Ideas and feedback to
    improve your own work