Formative Assessment

Criminal law Answer and Feedback

Indicative Classification: Lower Second

STUDENT ANSWER
Murder maybe considered the most severe form offence of homicide. It has no statutory definition.
The present common law defines it as an ‘unlawful killing of a human being with the intention to
kill or cause grievous bodily harm’. The actus reus, the conduct element of murder is ‘the unlawful
killing of a human being.’ What isolates murder from other forms of homicide is its mental
element, the mens rea. This second element has roused a rather complex and ambiguous area of
law leading to believe as to if the mens rea of murder is too broad or too narrow.
The term mens rea originates from Latin, which translates to ‘guilty’ mind. It is the state of the
mind of the defendant at the time of the crime which ensures him guilty per crime, such as
intention or recklessness. The mens rea of murder is traditionally established to be malice
aforethought. Since murder is an offence under the common law, developed entirely by law
courts, the development of its mental element can be seen over the history of case law.
Following the Homicide Act 1957, in Vickers the courts established malice aforethought as
‘intention to kill or intention to cause grievous bodily harm, in which the defendant strikes a
number of blows at an elderly lady when he breaks into the premises to steal. In the case of
Cunningham, this was confirmed. In effect, a person who intends to perform really serious harm to
another even when is it quite apparent that death was not intended, nor foreseen. This could lead
to the criticism that the mens rea of murder seems broader than necessary when it convicts a
person who acts with the raw intention to cause death and another who acts intending serious
harm with the same degree of punishment.
Similarly, if the defendant punches the victim causing the victim to fall, hit his head and die, it is
important to question if the defendant is genuinely liable for murder when all he intended was
serious harm. Many may argue that the defendants are being convicted under a label that fails to
reflect their mens rea.
Moreover, in contrast, in cases such as Inglis, where the mother kills the son who was suffering
from persistent vegetative state by injecting heroin to end his pain, the defendant does not echo
the emotional state of a defendant who kills the victim out of malice (as in Thabo Meli v Queen). It
is important to notice that regardless of the broad spectrum of conduct, both possessed an
intention to kill, be it out of compassion or malice. The broad nature of mens rea for murder in
effect finds both the defendants guilty for the same offence although the level of culpability can
be considered nowhere near.
Furthermore oblique intention or indirect intention widens the scope of intention as now the
consequence does not need to be the defendant’s primary purpose. As Lord Brown states ‘there
are many more murderers under our law than there are than there are people who have killed
intentionally’.
On the other hand, critics may acclaim that the mens for intention is too narrow. This can be
observed in the direction of Woollin with regard to the meaning of oblique intent. Intention is
mainly direct intent where the consequence was the defendant’s primary purpose and

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oblique/indirect intent, where the consequence was not his primary purpose. The direction given
in Woollin states that foresight of anything less than virtual certainty cannot be intention. Whilst
this does help to draw a clear line between intention and recklessness, it could exclude killings so
heinous that they ought to be considered murder. Virtual certainty reflects the need for something
more than foresight. So where the defendant foresees the death of the victim, he is not considered
to have intended the death. Therefore a defendant who kills without giving it a proper thought
may escape liability. What amounts to recklessness could have been intention.
Therefore the Law Commission proposed a three-tier of homicide offences: first degree murder,
second degree murder and manslaughter, which neatly side steps the issue of mens rea of murder
being both too broad and narrow. As a result, the sentence issue may depend on the gravity of the
state of mind. First degree murder encompasses all intentional killing and killing with an intention
to cause serious injury in the awareness of serious risk of causing death. However, serious injury
itself has not been defined. This continues to carry the mandatory life sentence. On the other hand,
second degree murder includes lesser forms of mens rea such as killing with the intention to cause
serious injury, or risk of injury while being aware of the serious risk of injury. What is important is
that the mandatory life sentence will not be issued on second degree murder; a lesser form of
sentenced shall be served.
Regardless it is seemingly impossible to create a law not too narrow and not too wide, and that
would cater to each and every individual circumstance. Thus it is safe to say that the mens rea for
murder should be considered satisfactory to some extent as it has been able to promptly
recognize and convict those liable, throughout the history of common law till the present.

STUDENT MARK: 55%

EXAMINER FEEDBACK
Strengths
This was quite short and dealt with the issues rather quickly. However, it had several virtues. Firstly,
you didn't get side-tracked into long discussions of direct and indirect intention as so many others
did. Nor did you write a long introduction about the criminal law in general. Quite rightly you got
straight on with answering the question and in highlighting three important issues:
Should intent to cause GBH suffice for the mens rea. As you correctly suggested it is possible to be
convicted of murder without any foresight of the possibility of death. It would have been helpful
to have defined GBH and to have pointed out that actually quite a wide variety of harms, inflicted
for a variety of purposes can fall within the remit of GBH. Be careful with your examples - would it
be possible to prove beyond reasonable doubt that someone who punched someone intended
GBH and that therefore, if the victim fell and died from striking their head that the assailant should
be liable for murder? Beyond reasonable doubt is a high threshold for the prosecution -
constructive manslaughter much more likely. Those who intend GBH appear less culpable than
those who intend to kill but isn't there a public policy interest in making those who intend GBH
liable for the consequences of their own "bad luck"? Also, would the public accept that someone
who intended a particularly unpleasant form of GBH, say hacking off a hand, couldn't be convicted
of murder if the victim bled to death?

Using Inglis and Thabo Meli you rightly contrasted the motives of the defendant. Mercy killing is
perhaps the most troubling area of the law. With the decline of religiosity there are many who
believe that there is no moral fault at all in the case of such killings. The mandatory life sentence

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makes fair labelling particularly important in homicide. Here, unlike in most cases of homicide,
public feeling most runs alongside the perpetrator.
The oblique intention cases are also troubling - with the contention that here the mens rea may be
too narrow. Certainly those who run a high risk of causing death may be regarded by many as
more morally culpable than those who had intended GBH. Perhaps the Scots law concept of
"wicked recklessness" works to fill this gap?

Areas for improvement

All in all you were very much on the right lines. There simply needed to be rather more. You could
have made use of some of the apt citations from Hailsham, Davies and others and included
commentary from Ashworth, Norrie and others. Give the proper legal citation for cases and also for
quotations - it is one of those things that immediately signals that the candidate is likely to know
what they are doing and likely to produce something in the upper tier.
Promising though.

Other comments
Have a look at the Law Commission proposals. This was very promising. A little more direct focus
on the question would have helped but Well Done!

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