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"The law relating to the mens rea of murder in England and Wales has now become settled through a series of judicial decisions, which together, have made it unnecessary for Parliament to legislate on the matter" - Critically consider.

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Introduction

"The law relating to the mens rea of murder in England and Wales has now become settled through a series of judicial decisions, which together, have made it unnecessary for Parliament to legislate on the matter." Critically consider the truth of this statement. Except for strict liability offences, in order for the accused to be found guilty of the criminal offence, the prosecution must prove the accused committed the actus reus of the offence with the appropriate mens rea. "Mens rea" is the Latin for "guilty mind" and refers to the state of mind of the accused. The required mens rea varies depending on the offence, but there are 3 states of mind, which constitute the necessary mens rea of a criminal offence. These are intention, cunningham recklessness and caldwell recklessness. When discussing mens rea, the objective and subjective tests are talked about. A subjective test involves looking at what the defendant was actually thinking. Whereas an objective test considers what a reasonable person would have thought in the defendant's position. The mens rea for murder is "malice aforethought", which can be one of two things; intention to kill or intention to cause serious bodily harm (SBH). ...read more.

Middle

Foresight is merely evidence from which intention can be found. Before Moloney in the case of Hyam v DPP (1975) it had looked as though foresight was actually intention, though the judgement in that case was not very clear. The court held that the defendant must have foreseen death or GBH were highly likely to result from his or her actions, and this was sufficient mens rea for murder. However, in Moloney the HL claimed that Hyam had been wrongly decided, and that nothing less than intention to kill or cause GBH would constitute malice aforethought; merely foreseeing the victims death as probable was not intent, though it could be evidence of it. The guidance for juries proved to be problematic in R v Hancock and Shankland (1986), the trial judge recited the Moloney guidelines to the jury and the defendants were convicted of murder. The CA quashed the conviction and this was confirmed by the HL. Lord Scarman agreed with the CA saying the Moloney guidelines were deficient, and stated they were "unsafe and misleading" and the jurors should decide whether intention to kill existed, based on all the evidence from the case. In Nedrick (1986), a case similar to Hyam, the jury convicted the defendant of murder. ...read more.

Conclusion

There has been a lengthy campaign to reduce the forms of malice aforethought to one, the intention to kill, on the grounds that the term murder should be reserved for the most blameworthy type of behaviour. A HL select committee recommended replacing intent to cause GBH/SBH with intent to cause serious personal harm, being aware that death may result from that harm. This is contained in the Draft Criminal Code. "Being aware" would imply subjective knowledge; it would not be sufficient that a reasonable person would have known if the accused did not. Clause 18 (b) of the Criminal Code Bill (1989) defines intention by stating that "a person acts . . . (b) intentionally with respect to . . . (ii) a result when he acts either in order to bring it about or being aware that it will occur in the ordinary course of events." In the commentary on the draft code the Law Commission states: A definition of intention for criminal law purposes must refer. . . to "the means as well the end and the inseparable consequences of the end as well as the means" . . . A persons awareness of any degree of probability (short of virtual certainty) that a particular result will follow from his acts ought not, we believe, to be classed as intention to cause that result. ...read more.

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