Mens Rea for Murder - Lecture notes 9-10 PDF

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Lecture 9 Mens rea for murder - ‘intention to kill or cause really serious ‘grievous’ bodily harm’ - A short measure of mens rea is enough for the actus reus of a more serious result. - The modern translation of ‘malice aforethought’ equates it to intention, and this is used by judges when directing juries. - Recklessness does not suffice for murder 1. What does the defendant have to intend to do? -Homicide Act 1957 s.1: Abolition of ‘constructive malice’/felony murder rule; where a person kills another in the course or furtherance of some other offence, the killing shall not amount to murder unless done with the same malice aforethought (express or implied) as is required for a killing to amount to murder when not done in the course or furtherance of another offence. Constructive malice - Beard [1920] Defendant unintentionally suffocated a young girl in the course of a rape. Under the law in 1920, when the felony murder rule was in force, all the prosecution had to prove was that Beard intended to rape. Express malice - retained by the 1957 Act means an intent to kill. Implied malice - also retained, intent to do grievous bodily harm Vickers [1957]. If Beard were to occur today, the prosecution would have to prove that he had the intent to cause grievous bodily harm. Cunningham [1981]: Defendant hit the victim over the head with a chair 5 times. With this level of injury it becomes morally questionable to separate the intent from the consequences. ‘the outcome of intentionally inflicting serious harm can be so unpredictable that anyone prepared to act so wickedly has little cause for complaint if, where death results, he is convicted and punished as severely as someone who intended to kill’ Possible in law for a defendant to be guilty of intending really serious injury if he intends only to break the arm of his victim and no more than that → Question of whether the harm was really serious is left to the jury. Law Commission 304 (Murder, Manslaughter and Infanticide, 2006) ‘First-degree’ murder - with the intention to kill or cause serious injury with awareness of serious risk that death might result (mandatory life sentence) ‘Second-degree’ murder - with intent (i) to cause serious injury or (ii) to cause some injury/fear/risk of injury (if aware of serious risk of causing death) or (iii) with a partial defence) (discretionary life sentence) Grievous bodily harm rule was criticised in passing in A-G’s Reference (no 3 of 1994) [1997]: The defendant stabbed the pregnant woman and the baby died. Powell[1997]: common law rule is that secondary parties to murder are guilty of murder; dealing with the mens rea of a secondary party to murder → Lord Steyn really unhappy with this as it ‘results in defendants being classified as murderers who are not in truth murderers… It results in the imposition of mandatory life sentences when neither justice nor the needs of society require this…’ i.e. not that the jury gets it wrong but that the law is wrong. Lord Steyn’s solution is that intent to cause grievous bodily harm should be murder only if the defendant is aware that he might cause death. Rahman [2008]: ‘its a matter for the legislature, not the courts, to decide whether to change this or any other, aspect of the law relating to murder or accessories…’ per Lord Neuberger.

Paul Smith [2016]: the defendant, aged 16, attacked an older man, aged 34. He later pleaded guilty to causing grievous bodily harm with intent. In 2003, he was jailed for 7 years. After his release the defendant turned his life around, gaining work as a head chef in Leicester hotel, marrying and becoming a father.’ In 2014 the victim died of his injuries. The defendant was prosecuted for the victim’s murder and it was decided that he had no defence. He was convicted and sentenced to life imprisonment. 2. Who does the intention have to be directed towards? The defendant must intend to kill a reasonable creature (a living human being) and not e.g. an animal or corpse. -Mistake as to the identity or attributes of the victim does not eliminate mens rea. Doctrine of Transferred Malice: where the defendant intends to kill or cause grievous bodily harm to A but misses and strikes B instead. The intent is said to be transferred so D murders B (even if injury to B is not contemplated or foreseeable.) Gore [1611]: Defendant, Agnes Gore intending to kill her husband A, went to an apothecary and the apothecary, B, supplied the medicine. The wife put poison in the medicine and gave it to A, her husband. He took the medicine which made him ill but he did not die. This made him angry with the apothecary so he summoned the apothecary, B, and said that the medicine was not good. The apothecary said that to prove that there was nothing in it that he wouldn’t himself ingest, he drank the medicine and died. Agnes was convicted of murdering the apothecary. (similar to take your victim as you find them) *Principle also applies to non-fatal offences Latimer [1886-90]: defendant lost a fight against A in a pub. He lashed out at A with his belt which had a heavy buckle on it intending to wound A. He missed A and cut the face of B, a woman who was talking to A. It was held that Latimer had maliciously wounded woman B. Grant[2014]: the defendant chased A into a shop, intending to kill him. Fired 2 shots, one shot hit B1, a fiveyear-old girl - paralysing her. The second hit, B2 - a customer in the shop, seriously injuring him. The prosecution were allowed to prosecute Grant both for the attempted murder of A, grievous bodily harm with intent by transferred malice of both B1 and B2. Lecture 10 Intention/Limitations on Transferred Malice Only works when the actus reus the defendant commits is the same as the actus reus that he intends Limitations of the doctrine of transferred malice: 1. Pembliton [1874-80]: Defendant threw a stone at his intended victim, missed A and broke a window belonging to B. No transfer of malice because the two objects are different - one is a person, the other is the property 2. A-G’s Reference (No3 of 1994) [1997] - cannot have a ‘double transfer’ of intent from mother to foetus to child born alive so as to make the defendant guilty of murder. It is too remote and ‘strains the idea of transferred malice’ Gnango [2011] - Gnango had a shootout with his rival. The rival was never caught. P fired at G and missed but hit V. P was never caught so what about the liability of G? Supreme Court held that G was jointly liable with P for the shots that had been fired and was, therefore, a party to the murder of the ultimate victim. Where two people fight a duel, they are both behaving unlawfully. What does intention mean? Intent is an ordinary English word that juries are supposed to understand. -’Golden rule’ when directing a jury upon intent is that it is best to avoid any elaboration or paraphrase of what is meant by intent (Compendium)

A person intends if he acts in order to bring about a result - immaterial that the defendant’s chances of success are limited. **If the intent is direct, no need for virtual certainty. Direct intent → ordinary meaning of intent Cunningham (House of Lords): An intention to cause grievous bodily harm is enough mens rea for murder. Moloney: Defendant shot his stepfather at a very close range but said he did not realise the gun was pointing at him. They were both drunk. MD[2004]: mother gave her child medication hoping it would kill him. CA held that it doesn’t matter if it was a long shot/low probability that she would succeed. Oblique intent → probability driven/chances of achieving results and links to a sense of morality. Nedrick [1986]: the defendant set fire to a house, to frighten the woman who lived there and one of her children, V, was killed. The correct direction on oblique intent was said to be that the jury cannot infer that the defendant acted with the intention for murder unless (a) death or serious harm was virtually certain (barring some unforeseen intervention) to result from the defendant’s act, and he appreciated that this was so. Woollin [1999]: the defendant caused the death of his son by throwing him onto a hard surface. It was accepted that he did not act in order to kill or cause grievous bodily harm → Oblique Intent case *Jury was misdirected by the judge. a.

b. c.

If the jury finds that the defendant acted with direct intent (in order to kill/cause grievous bodily harm) then that = intention. But if they find that he appreciates that the result will occur as a virtual certainty, then under the Nedrick/Woollin test then that is evidence from which they may (not must) find intention → at the jury’s discretion. When might the jury find (or infer) that a person who appreciates that death/grievous bodily harm is a virtual certainty does not have the necessary intention (Re A(Children)(Conjoined twins) [2000] Is there any logic in requiring that the outcome be virtual certainty? Stringer [2008]: house fire case, most of the family escaped save one boy who was wearing headphones.

Not enough for oblique intent for murder: 1. Defendant does not see death/serious injury as a virtually certain but a reasonable man would DPP v Smith [1961]: the defendant trying to make a getaway with stolen goods in his car shook a police officer off the bonnet of the car, into the path of another vehicle where he was run over and killed. House of Lords held that a person should be assumed to intend the natural and probable consequences of what they did. Therefore, if a reasonable person would have seen the consequence coming, the defendant would have been deemed to have intended it → no longer the law but might still be if the prosecution could prove oblique intent (virtually certain). 2. Defendant sees death/serious injury as a natural or probable consequence but not virtually certain (despite support in Moloney [1985]). Woollin negates this/raises the bar. The terrorist bomber who gives a warning: ‘It is true that [the Nedrick/Woollin direction] may exclude a conviction of murder in the often-cited terrorist example where a member of the bomb disposal team is killed. In such a case it may realistically be said that the terrorist did not foresee the killing of a member of the bomb disposal team as a virtual certainty. That may be a consequence of not framing the principle in terms of risktaking. Such cases ought to case no substantial difficulty since immediately below murder there is available a verdict of manslaughter which may attract in the discretion of the court a life sentence’ per Lord Steyn in Woollin. Defendant sees death/serious injury as a highly probable but not virtually certain consequence Hyam v DPP [1975] The intent in murder is subjective 3.

Criminal Justice Act 1967 s.8

A court or jury, in determining whether a person has committed an offence a. Shall not be bound in law to infer that he intended or foresaw a result of his actions by reason only of its being natural by reason only of its being a natural and probable consequences of those actions; but b.

Shall decide whether he did intend or foresee that result by reference to all the evidence, drawing such inferences from the evidence as appear proper in the circumstances.

(A statement of the blindingly obvious, but necessary to reverse DPP v Smith [1961] AC 290)...