In this essay it is my intention to evaluate by means of a critical analysis the mens rae of murder.

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In this essay it is my intention to evaluate by means of a critical analysis the mens rae of murder. In order to try and do this one has to explain what murder and mens rae are and how they work in a criminal context.


Back in the 1800’s Lord Chief Justice Cockburn, described mens rae and intention, - If a man did an act, more especially if that were an illegal act, although its immediate purpose might not be to take life, yet if it were such that life was necessarily endangered by it, - if a man did such an act, not with the purpose of taking life, but with the knowledge or belief that life was likely to be sacrificed by it, that was not only murder by the law of England, but by the law of probably every other country. Lord Cook’s classic definition states: "Murder is when a man of sound memory and of the age of discretion, unlawfully killeth within any county of the realm any reasonable creature in rerum natura under the king's peace, with malice aforethought, either expressed by the party or implied by law. Previously the victim had to die a year and a day from the date of the offence, but relatively recent legislation has now changed that.  The difference between murder and manslaughter is the state of the persons mind and their intention to kill or cause grievous bodily harm at the time of the alleged offence. A person cannot be convicted of murder through negligence or recklessness and may only be found guilty of murder if the mens rae of their act (actus rae) relates to intention. This makes intention a very important and hotly debated subject. Malice aforethought is not a term widely used in the courts these days but essentially it is the intention to cause death or serious injury, either in a direct or oblique form. Direct intention is where you actually intend to carry out the specific act of killing for example you go and source a gun, load it and shoot a person deliberately and they die. Oblique intention is where you do not necessarily intend to carry out a particular act or you do not intend a particular result as a consequence of your actions, but if you have the required foresight of consequences and death occurs, you may well be found guilty.  The case that established a ruling on foresight of consequence was Hyam, here the trial judge Ackner J, directed the jury in the following terms: "If you are satisfied that when the accused set fire to the house she knew that it was highly probable that this would cause (death or) serious bodily harm then the prosecution will have established the necessary intent." The case was subsequently appealed and the House of Lords upheld the decision, with Lord Hailsham dissented, saying: “I do not believe that knowledge or any degree of foresight is enough. Knowledge or foresight is at the best material, which entitles or compels a jury to draw the necessary inference as to intention”.  In Hancock it was stated: “the greater the probability of a consequence the more likely it is that the consequence was foreseen and that if that consequence was foreseen the greater the probability is that that consequence was also intended”. As one can see, we have Law Lords disagreeing on the interpretation of oblique intention in mens rae. In the case of Moloney, Lord Bridge set out his guidance on how to test for oblique intent:  "In the rare cases in which it is necessary to direct a jury by reference to foresight of consequences, I do not believe it is necessary for the judge to do more than invite the jury to consider two questions. First, was death or really serious injury in a murder case (or whatever relevant consequence must be proved to have been intended in any other case) a natural consequence of the defendant's voluntary act? Secondly, did the defendant foresee that consequence as being a natural consequence of his act? The jury should then be told that if they answer yes to both questions it is a proper inference for them to draw that he intended that consequence." Case law has further defined how the courts may perceive intention. In Woollin, the jury was directed that the defendant’s intention to murder or commit grievous bodily harm on a child could be inferred, only if the jury was convinced that the defendant had realised that there was a substantive risk of harm to the child as a result of his actions. Consequently Woollin was convicted of murder. However this was in direct contradiction to the direction of Lord Lane who stated in the case of Nedrick:  “the Jury should be directed that they are not entitled to infer the necessary intention, unless they feel sure that death or serious bodily harm was a virtual certainty (barring some unforeseen intervention) as a result of the defendant's actions and that the defendant appreciated that such was the case”.  When one considers Woollin it appears their Lordships felt the term ‘substantial risk’ could not be seen to mean the same as ‘virtual certainty’ as the term ‘substantial risk’ had now changed the way mens rae could be interpreted which was wrong in the eyes of the courts. When a defendant only foresees death as a possible event and not a virtual certainty of his / her actions it cannot be said to show any intention to murder. In Woollin the appeal was allowed and a conviction of manslaughter was substituted in this case. When we take a look at Smith, there was no evidence that Smith intended to kill the police officer, but through his actions it was clear that he had intended at the very least, to cause grievous bodily harm which means no more and no less than really serious injury, thus fulfilling the criteria for the charge of murder against Smith. For the offence of murder to be complete, intention does not require premeditation or ill will, as all that has to be proved is either an intention to kill or an intention to cause grievous bodily harm. Although a motive may well be relevant in cases of murder, it does not prove intention. Nedrick and Woollen are the most relevant precedents on the subject of mens rae in murder. In Nedrick, D set a house alight, resulting in the death of a child. As the question of his intention was paramount to the case, the question was asked, was death or serious bodily harm a virtual certainty (barring some unforeseen intervention) and did the defendant realise that such was the case?  As this is such an important factor in the case it is left for the jury decide. Lord Lane CJ stated “Where a man realises that it is for all practical purposes inevitable that his actions will result in death or serious harm, the inference may be irresistible that he intended that result, however little he may have desired or wished it to happen. The decision is one for the jury, to be reached on consideration of all the evidence.”  The Nedrick test was questioned in Woollin and largely upheld with addition of the term “virtual certainty” being inserted now the ruling states:  "Where the charge is murder and in the rare cases where the simple direction is not enough, the jury should be directed that they are not entitled to find the necessary intention, unless they feel sure that death or serious bodily harm was a virtual certainty (barring some unforeseen intervention) as a result of the defendant's actions and that the defendant appreciated that such was the case." Again this test is for the jury to decide upon a consideration of all the evidence.  As you can see, there have been a number of decisions on the subject of intention and how it is to be interpreted. Each time a case is considered there have been arguments (dissents) as to how to proceed, which has led to confusion. The Law Commission has raised some concerns and have suggested a way forward: 

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“We recommend that the existing law governing the meaning of intention is codified as follows: (1) A person should be taken to intend a result if he or she acts in order to bring it about. (2) In cases where the judge believes that justice may not be done unless an expanded understanding of intention is given, the jury should be directed as follows: an intention to bring about a result may be found if it is shown that the defendant thought that the result was a virtually certain consequence of his or her action”.

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