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The traditional definition of the mens rea for murder is that the crime must be committed with ‘malice aforethought.’ However, this is now simply regarded as referring to the mental states which are recognised by the common law as being sufficient to form the mental element required for murder.

Intention is now recognised as the general mens rea or mental element of murder. It defines the required mental state of the defendant at the time the offence is committed.

Prior to the Homicide Act, 1957, three categories of malice aforethought existed;

  1. Express Malice – where the defendant possessed an intention to cause death.
  2. Implied Malice – where the defendant possessed an intention to cause grievous bodily harm (GBH).
  3. Constructive Malice – where the defendant cause death in the process if committing or attempting to commit an offence or during the act of resisting arrest. The defendant did not need to intend to kill nor inflict GBH upon the victim.

Category 3 was abolished by Section 1 of the Homicide Act, 1957 but categories 1 and 2 remain.

A defendant now possesses the requisite mens rea for murder in the following situations

  1. Where he commits the actus reus of the murder with the intention to kill – an intent to cause death.
  2. Where he commits the actus reus of murder with the intention of causing grievous bodily harm – an intent to cause grievous bodily harm.
  3. Where he kills or causes grievous bodily harm as a means to achieve some other end.

A jury is also entitled to decided that a defendant possesses the requisite mens rea in circumstances where the actions of the defendant are virtually certain to cause death or grievous bodily harm and the defendant appreciates this virtual certainty. These cases are all examples of oblique or indirect intent.

This section will look at each of the requirements for the mens rea of murder in turn.

Cases

Express intention to kill

Although an express intention to kill is clearly sufficient to form the mens rea of murder, there has been some confusion as to the exact intention which is required.

There was originally a school of thought who argued that a malicious intention to kill is required. They argued that a benevolent intention, such as a mercy killing, was not sufficient to form the mens rea of murder. However, the courts have taken the opposite view, stating that any intention to kill is sufficient regardless of the underlying motive for this.

The majority of cases on this issue have arisen in the context of mercy killings. The following section will look at the reasons why the court have refused to exempt mercy killings from the ambit of murder.

R v Cox [1992]
An intention to kill does not require a malicious motive. A benevolent motive for causing someone’s death, such as mercy killings, is sufficient to form the intention to kill required for a murder conviction.

R v Inglis [2011]
The position in R v Cox, that a killing is a mercy killing is insufficient to provide a defence to murder, was confirmed.

Intent to cause GBH

It has always been clear that an intention to cause the victim’s death satisfies the mens rea of murder. However, a more controversial question is whether the lesser mental state of an intention to cause grievous bodily harm (GBH) can also form the mens rea of murder.

This has caused controversy with academics and judges: some view those who act with an intention to commit GBH as culpable enough to have caused the consequences of their actions, whilst others view the label of murderer as only appropriate to describe those who have acted with an intention to kill.

R v Vickers [1957]
An intention to cause grievous bodily harm is sufficient as the mens rea for murder.

R v Hyam [1975]
The House of Lords were presented with the opportunity to confirm that an intention to cause grievous bodily harm was sufficient as the mens rea for murder. However, the judgement of the Law Lords was unclear and left this area of the law unclear.

R v Cunningham [1982]
The House of Lords confirmed that the required mens rea for murder is an intention to kill or an intention to cause grievous bodily harm, resolving the ambiguity left by R v Hyam.

R v Rahman [2008]
The House of Lords confirmed the correctness of R v Cunningham, in so far as the mens rea for murder is satisfied by either an intention to kill or an intention cause grievous bodily harm.


Oblique intention

Oblique intention exists where the defendant continues on a course of conduct in order to achieve their desired result knowing the consequences of this conduct will likely bring about another result.

The quintessential example provided of oblique intention is someone who intends to blow up an airplane in an insurance fraud scheme, knowing as a consequence this will kill all the passengers on the plane.

The courts have struggled to decide on the test for oblique intent and the probability of a consequence occurring which is required before a defendant can be guilty of murder.

DPP v Smith [1961]
The Court established an objective, rather than a subjective, test for the intention.

Section 8 Criminal Justice Act 1967
The CJA 1967, section 8, cast doubt on the correctness of DPP v Smith. After coming into force, the Courts regarded the correct test for intention to be a subjective, rather than an objective, test.

R v Wallett [1968]
In R v Wallett, the Court regarded the enactment of the Criminal Justice Act 1967, s.8 as overturning the decision in DPP v Smith.

R v Woolin [1999]
In Woollin, the House of Lords confirmed that the CJA 1967, s.8 overturned the decision in DPP v Smith. The correct test for intention is one of subjective intent: the court must look at the defendant’s actual state of mind at the time of the actus reus.

Frankland v The Queen [1987]
The Privy Council stated that DPP v Smith should no longer be followed and Lord Acker stated that the objective test was incorrect.

R v Hyam [1975]
The House of Lords discussed what state of mind, apart from the case where a defendant acts with the purpose of killing or causing serious injury, may be sufficient to constitute the necessary intention required for murder. However, the Court’s judgement was unclear.

R v Moloney [1985]
The House of Lords stated that a defendant’s foresight of the natural consequences could not be equated to an intention to kill or cause grievous bodily harm – at most, it was evidence from which the requisite intention to kill or cause grievous bodily harm could be inferred by the jury.

R v Hancock and Shankland [1985]
In Hancock and Shankland, the House of Lords disapproved of the Moloney guidelines on oblique or indirect intention. The House of Lords indicated that it was not correct to simply equate foresight with intention.

R v Nedrick [1986]
In Nedrick, the Court of Appeal formulated new guidance on the direction which should be provided to a jury in cases of indirect or oblique intent.

R v Woolin [1999]
In Woollin, the House of Lords clarified the meaning of indirect or oblique intention in cases of murder. The House of Lords also confirmed the correct direction which should be given to the jury in these circumstances.

R v Matthews and Alleyne [1999]
In R v Matthews and Alleyne, the Court of Appeal endorsed the second of the two readings of R v Woollin: proof a defendant foresaw it was virtually certain they would cause death or gbh is merely evidence from which the jury can infer that the defendant intended to cause death or grievous bodily harm to the victim. Foresight of a virtual certainty does not alone constitute indirect intention for murder.

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