The Mens Rea for murder is defined as malice aforethought, which has come to mean either an intention to kill (express malice) or an intention to cause grievous bodily harm (implied malice.) Malice aforethought is an outdated description which is misleading because one does not need to have any malice towards their victim: they could be a virtual stranger, as is the case with the relationship between Alice and Briony with David. Nor does the plan have to be pre-meditated (aforethought.) However, as one can see, the defendants’ plan to set off a bomb in a busy shopping mall was pre-meditated but in order for them to be charged with murder, the defence would need to prove beyond reasonable doubt that they intended to kill or cause GBH.
In R v Saunders 1985, the term GBH meant that one meant to cause death or serious injury. In R v Cunningham 1982, the House of Lords made it clear that the intention to cause serious harm was sufficient for murder. There was no need to prove an intention to kill, so Alice and Briony could well be convicted or murder if it was proved that they only meant to cause serious harm with the bomb rather than murder anyone.
Intention is a purely subjective test-what the defendant foresaw and intended. It can be direct/express or oblique/indirect.
The definition of death, intention to cause GBH (Grievous Bodily Harm) and the definition of intention itself can all be criticised. The rule that an intention to cause GBH can cause one to be convicted of murder has been questioned by several judges, for example by the judge in Hyam v DPP 1975. (The majority of Judges were of the opinion that foresight of a high probability of GBH or death occurring was sufficient evidence for the MR of murder) However R v Moloney 1985 confirmed this rule. The draft criminal code suggests that GBH be replaced with intent to cause serious personal harm and being aware that death may arise from that harm. One might also criticise the law because it does not define intent, it only provides guidelines on how a jury may decide when it is present. Hence, different juries, deciding upon the same facts may come to different conclusions of guilty or not guilty, leading some to say that the law is unjust because all individuals are not treated equally. Smith and Hogan argue that the requirement that the consequence of ones actions should be virtually certain to the defendants (a subjective test,) is illogical, as the person who wrongly thinks that death is likely to result, is as morally guilty as those who are correct in their thinking.
There have also been various reforms made to the law on murder. These include foresight to harm to equal intention. Also the concept of conditional intent has been proposed by Smith and Hogan, where defendants can argue that they had to take steps that they did not want to take in order to achieve a certain purpose. which were necessary to take in the circumstances. If this law was put into place, Alice and Briony could well claim that they were not liable for murder because setting off a bomb in the doorway of one of Eurodrug’s main shops in a large shopping mall would stop them from testing products on animals, and the bomb would provide the right scare tactics to do this successfully. This would then cause legal disputes as it would have to be decided whether this would be tested subjectively (from Alice’s and Briony’s point of view) or objectively (the reasonable person’s.) The argument might then arise as to what steps would be considered reasonable to achieve what particular purpose. In this case this could mean justifying the murder of David to make a point about animal testing being cruel.
Lord Goff has even suggested that the courts start using the definition of murder which includes:
“Such wicked recklessness, as to imply a disposition depraved enough to be regardless of the consequences.” This would be difficult for some members of juries (who are “ordinary people”) to understand. Also, the use of the word recklessness here would confuse the meaning of oblique intent and recklessness as a partial defence to murder.
In the USA and Canada, murder is divided into 1st and 2nd degree murder, by the presence of pre-meditation, deliberation and wilfulness. An intentional, spontaneous killing is 2nd degree murder. In the USA the majority of states have the death penalty for 1st degree murder, so a distinction between the two is fundamental. In England, any intentional killing carries a mandatory life sentence. The trial judge will recommend a minimum period of time before the killer should be considered for parole. As a result, the distinction between a pre-meditated killing and a spontaneous one does not have to bare such weight. Hence it is not so important in terms of the sentence available to the defendants in this case that such a distinction be made.
In order to clarify the law on murder in a statute, Clause 54 of the Criminal Code Bill (1989) s. 1, states:
“A person is guilty of murder if he causes the death of another-
(a)Intending to cause death
(b)Intending to cause serious personal harm and being aware that he may cause death.”
However, the problem with this statute is that it is difficult to distinguish when defendants intend to cause death or serious personal harm, as might be argued in this case. One might argue that the defendants called the police to warn them about the bomb two hours before it was set to detonate, thus indicating that they did not intend to kill or even harm anyone by giving the people in the shopping mall time to evacuate. At face value it may seem as though the defendants could then not be guilty of murder, as David’s death was not directly intended. One then has to look at the issue of oblique intent and then conclude that the defendants would be liable for David’s murder under this legal principle, where the consequence (the death of a person in the shopping mall) is foreseen by the defendant as virtually certain, although it is not desired for its own sake, and the defendant goes ahead with his actions anyway. In the case R v Nedrick (1986,) Lord Lane CJ suggested that when determining whether the defendant had the necessary intent, a jury could ask themselves two questions: (1) How probable was the consequence which resulted from the defendant's voluntary act? (2) Did he foresee that consequence? A jury might well come to the conclusion that the probability someone in the shopping mall would die was high, as a result of them planting a bomb in a carrier bad, voluntarily. The jury might then also conclude that the defendants themselves foresaw such a consequence, being of a sound mental state and grown adults. Hence, they would be entitled to use this as evidence of intent and convict the defendants of murder. It would be important for the jury to note that foresight of consequences is not the same as intention but only evidence of intention (R v Scalley, 1995.) The issue then arises as to whether the defendants’ conduct caused David’s death. When ascertaining whether the defendants are the people on whom to fix liability, the courts will have to look at two issues. These are, did the conduct of the defendants cause the death and are the defendants also liable in law? The defendants would only be criminally liable if their conduct made a significant contribution to the death. It is clear here that placing the bomb in a shopping centre would subject a bomb disposal expert to a significant risk of death. This rule was not established in R v White 1910, where the accused was not found guilty of murder, only attempted murder, no matter how much he had desired that his mother die. (It is worth pointing out here however, that David chose to do such a job, so some might be justified in saying that he put himself in harm’s way and the defendants should not be responsible for his death because he chose put himself at risk.) When deciding if a defendant’s act was the factual cause of death, the courts use the “but for” test. Applied to this case, this would mean “but for” the actions of the Alice and Briony, would David have died? The test here would be satisfied as the answer would be no. After satisfying the test for factual causation, it needs to be shown that no intervening act had broken the chain of causation. Here it is the case that the defendants could argue that an intervening act arose to break the chain of causation, leading form the defendant’s act to the victim’s actual death. One would have to look at the relatively recent case of law on this area, of R v Blaue 1975 for a recent case illustrating the point that defendants cannot escape liability for murder because the victim refuses to undergo treatment for his injuries through religious objections. The victim had been stabbed by the defendant but because of her religious beliefs as a Jehovah’ s witness, she refused to have a blood transfusion, which probably would have saved her life, in the same way which one would have saved David’s. This could be considered to be unjust because doctors are of the opinion that such a transfusion would almost certainly have saved his life. Why then should the defendant’s be liable for his death when technically, they should only be liable for causing him GBH.
In conclusion it is highly likely that Alice and Briony would be found liable for David’s death. Their actions satisfy all the elements that make up the definition of murder; first defined by Lord Chief Justice Coke in the 17th century and later modified in the common law. They also have both the Actus Reus and Mens Rea of murder. The Mens Rea for murder is defined as malice aforethought, which is an outdated description which is misleading because one does not need to have any malice towards their victim: they could be a virtual stranger, as is the case with the relationship between Alice and Briony with David. Nor does the plan have to be pre-meditated (aforethought.) However, as one can see, the defendants’ plan to set off a bomb in a busy shopping mall was pre-meditated but in order for them to be charged with murder, the defence would need to prove beyond reasonable doubt that they intended to kill or cause GBH.
One then has to look at the issue of oblique intent and then conclude that the defendants would be liable for David’s murder under this legal principle, where the consequence (the death of a person in the shopping mall) is foreseen by the defendant as virtually certain, although it is not desired for its own sake, and the defendant goes ahead with his actions anyway.
A way of escaping liability could be for the defendants to claim that an intervening act arose to break the chain of causation, leading form the defendant’s act to the victim’s actual death. However, the case of Blaue 1975 sets the precedent for this area of law and the defendants would be found guilty of murder.
There have been various reforms made to the law on murder, most of which can be criticised in some way. For example, the concept of conditional intent has been proposed by Smith and Hogan, where defendants can argue that they had to take steps that they did not want to take in order to achieve a certain purpose. However, what steps would be considered suitable to achieve what purpose. Would this law apply to legal, illegal acts or both? It might then be argued that it is best to leave the law on murder as it is, without confining it to a statue. Cases such as Nedrick 1986 have provided detailed and well thought out laws which have helped juries to find defendants such as Alice and Briony guilty of murder, providing a sense of justice being served for the victim’s family.
