Date 12 February 2022 Murder Mens Rea Learning

Date: 12 February 2022 Murder – Mens Rea Learning Objectives Define the mens rea of murder Explain the chronology of the law on oblique intent Apply the law on murder to a number of given scenarios. 1) Sophie is unable to tolerate her unhappy marriage to Matthew any longer. After Harry has gone to bed she takes a knife and stabs him. Unknown to her, the equally desperate Harry was already dead having taken a large overdose of drugs half an hour earlier. 2) Peter is attacked by Andrew and suffers serious though not fatal injuries. On its way to take Peter to hospital the ambulance is involved in a high speed car crash in which the driver of the ambulance and Peter is killed. 3) Rosie is on a fairground ride, during the course of which the person next to her attempts to indecently assault her. Desperate to get away she jumps out and being hit by the following car is fatally injured.

Answer 1 • Sophie – Not guilty of murder (fails ‘but for’ test) R v White (1910) 2

Answer 2 • Andrew is guilty of murder – legal causation as this is still a substantial cause of Mahmoud’s death R v Smith (no novus interveniens) (but not responsible for the death of the ambulance driver (no operating cause)) 3

Answer 3 • Rosie – D guilty chain not broken as this was an acceptable level of escape R v Roberts 4

Malice Aforethought • Defined by Coke as the Mens Rea of murder • Case law has extended this definition • No ‘malice’ required (take mercy killings) (Gray (1965) where parent gives a fatal dose of drugs to terminally ill child) • ‘Aforethought’ does not mean any prior thought is required as long as the thought is not after the act • Mens Rea is now an ‘intention to kill or cause GBH’ • This is the case even when D does not intend to kill but only to cause really serious harm • See R v Vickers [1957] confirmed in Cunningham [1982] 5

Vickers, R v (1957) CA Murder - intention – constructive malice During D’s burglary of V’s (an old lady) shop, V discovered D whereupon D struck V with several blows by punching and kicking her in the head. V eventually died from shock due to general injuries. Held – Lord Goddard CJ ‘because he has killed a person with the necessary malice aforethought being implied from the fact that he intended to do grievous bodily harm. . . in considering the construction of s 1(1) [Homicide Act 1957], it is impossible to say that the doing of grievous bodily harm is the other offence which is referred to in the first line and a half of the subsection [i. e. which abolishes constructive malice]. It must be shown that independently of the fact that the accused is committing another offence, that the act which caused the death was done with malice aforethought as implied by law’. In other words the court held that an intention to inflict GBH resulting in the death of the victim was enough to imply the necessary intention or murder. D guilty of murder 6

Foresight of consequence – Oblique Intent • The key problem in this area is demonstrated by this question: • How far can intention to kill or cause serious bodily harm be inferred from the defendant’s foreseeing the consequences of his actions? • Take the terrorist vs the insurance fraudster • The key cases in this area of law are Hyam [1975], Moloney [1985]. Hancock and Shankland [1986] Nedrick [1986] Woollin [1999] • Very complex and contradictory – See lesson on Mens Rea 7

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Foresight of consequence • Further considered in Mathew and Alleyne [2003]. Although this case has some technical difficulties it further supports the decisions in Nedrick and Woollin. 9

R v Matthews and Alleyne (2003) Murder - intention – foresight of consequence The D’s threw V from a bridge into a river knowing he could not swim. They left the scene before he could reach safety and V drowned. The D’s argued on appeal that the direction given at their trial suggested that foresight of consequences was the same as intention. Held – The Court of Appeal regarded foresight of consequence being the same as intention to be more as a rule of evidence. A jury in such a case is entitled to find the existence of intention but does not necessarily have to. Despite what the Court of Appeal may have considered to be a technical misdirection it decided that it would not have made any difference to the jury’s decision. D’s convictions were upheld - guilty of murder 10

Conclusion • The best way of expressing the present position is as follows: • A person commits murder when he kills with the necessary intent. • Intention for murder is nothing less than the intention to kill or cause some serious bodily harm. The defendant’s foresight of the consequences of his actions is no more than evidence from which the jury may infer intent. 11

Activity • Using only the material you have read so far in this chapter, do you think that there is liability for murder present in the following cases? Give reasons for your opinions. • Peter is in severe financial trouble. He places some bogus cargo in a freight plane, primed with a bomb and timed to explode in mid-air. In this way he hopes to claim insurance on the phoney goods. The plane is destroyed at 30, 000 feet and all the crew are killed as a result. • Quin interferes with the power steering of his girlfriend Rosie’s car with the intention of stopping her from meeting a secret lover. On leaving her drive, Rosie turns into the road but cannot avoid an approaching vehicle. The oncoming car crashes into her and she is killed immediately. • Tracey a member of an extreme terrorist group enters a pub carrying a holdall containing a bomb. She shouts a warning and immediately runs out. Very shortly afterwards the bomb explodes killing three people who were unable to get out in time. 12

Answers • Peter – Classic direction as originating in Hyam but confirmed ultimately in Woollin as this is a virtual certainty that the D would have a foresight of the consequences of his actions • Quin – Not so clear this time. Would the steering constitute a virtual certainty as per Woollin? He does not have a direct intention and this would be a clear case of inference on behalf of the jury. • Tracey – Direct intention to kill or cause really serious harm (Vickers) Mohan. The length of time on the warning would intimate a direct intent if the fuse was longer then would have to refer to Woollin again 13

Actus Reus 1) Act (or omission if duty) 2) Kills a reasonable creature in being 3) Unlawful (within Queen’s peace, not medical treatment, sport in which consented to GBH) 4) Chain of causation (factual cause – but for, legal cause – more than slight or trifling link, thin skull rule, no intervening acts (medical treatment, victim’s own act) Mens Rea 1) Express or Implied malice aforethought 2) Could be direct or oblique intent (foresight of consequences can be evidence of intention) 3) Could be transferred malice Coincidence of AR & MR Write this out in full, including key authority