• 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

    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.

  2. Nina runs a burger bar. She puts up a sign in the window saying ...

    As such, from this part of the definition, there could be two crimes; one count of fraud towards Prafal, and one towards Nina. Whilst the fraud with Nina has a definite duty, Prafal suffers no loss and is affected in no way.

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

    He claimed he had been sleepwalking. At his trial, the judge left automatism to the jury, who acquitted him. The Supreme Court of Canada upheld these acquittals. The leading judge said that ?accepting the medical evidence, the respondent?s mind was and its functioning must have been impaired at the relevant time but sleepwalking did not impair it.

  2. The History and Main Features of Criminal Law in the USA.

    Statutes have expanded the scope of bribery to include agreements to fix sports events, shave points on ball games, and to influence members of a jury or witnesses. Conspiracy is a crime that occurs in secret. The critical part of this crime is the agreement between two or more persons

  1. Critically discuss the Labour Governments record of crime control since coming to power in ...

    Commercial organisations are also excluded, due to the nature of the survey being based on private households; however, some other commercial victimisation studies have been done, including a national study in 1994, asking about crime in 1993; this showed much higher rates of victimisation, with 24% of manufacturers and 24%

  2. How Satisfactory Is The Current Law On The Deception Offences?

    Since he had not deceived, the conviction was quashed however in Lambie it was not even though after being told that the card needed to be returned he continued to use it and was convicted.

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

    On the other hand, others outside the legislation are external aids which include Historical setting, Dictionaries & textbooks, Reports, Treaties, Previous practice and Hansard ( Elliott & Quinn, 2011). Hansard[4] is a documentary record of the regular debates that happen in the parliament.

  2. Explain the meaning of Actus reus and mens rea

    In R v Cheshire it was held that medical negligence only breaks the chain of causation if the act of the doctor rendered the D?s act insignificant. A case example is R v Jordan where the doctor gave a healing patient an antibiotic which they were allergic to and this was in the patient?s notes.

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