aqa law module 4 murder mens rea

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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.  In the later case of r v Cunningham in a dissenting judgement lord Edmund Davis argued against intention to commit GBH being part of murder mens rea, this was also discussed in the most resent case of smith- v – Barkshire  (2007) but the similar principles of Vickers was held. lord Edmund Davis stated “ I find it passing strange that a person can be convicted of murder if death results from his intentional breaking of another’s arm which would in most cases is unlikely to kill”. He also observed that for the less crime of attempted murder which can be reduced to manslaughter, “nothing less than intention will suffice”. Then a further cogent critic of malice aforethought is the issue provided by lord steyn in r-v-powell when he said of this rue was turned “murder into constructive murder resulting in defendants being classified as murders who are not in truth murders”.

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        Constructive liability exists where the mens rea of a lesser offence is constructed into the mens rea of more serious offence such as strict liability. 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 ...

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