On Homicide (Part 2).

So in part one, we reviewed the different types of homicide and the difference between factual and legal causation.

In part two, we will focus on the Mens Rea of murder or, in other words, the guilty mind aspect of murder. Let me remind you that the Mens Rea is the only difference between the various types of homicide.

In Part One, I mentioned Edward Coke’s definition of murder which includes the phrase “malice afterthought”. This old-fashioned expression means having the purpose to harm or kill someone beforehand. Proving premeditation or malice is not required for a murder conviction.

To reiterate, the Actus Reus is the guilty act. In the case of murder, it is causing the unlawful death of a human being. The Mens Rea is the state of mind in which the perpetrator acted. In this case, the perpetrator had the intention to kill or cause grievous bodily harm (GBH).

A defendant can be found guilty of murder, even if they did not intend to kill the victim. They might not have been aware that their actions could lead to death. If they only intended to seriously injure the victim and caused death by mistake, it is still considered murder.

The extended Mens Rea rule exists to ensure that those who deliberately cause severe harm face the full repercussions of their actions, even if those repercussions were not anticipated. It is difficult to prove that the accused only meant to injure, not kill. If we did not have this extended Mens Rea, this would provide a way for defendants to avoid being convicted of murder.

Murder is defined by intentional killing or grievous bodily harm. However, “intention” has a different meaning in the law than it does in language. To determine intention, two tests exist: direct intention and oblique intention.

Direct intention is similar to the usual meaning of intention. It is about the goal or purpose of the defendant. For example, if someone stabs someone else in the neck with the aim of killing them, they have a direct intention to kill. It is important to remember that intention is not about how probable the result is. Even if a terrorist is a bad bomb maker and is unlikely to make a bomb that explodes and kills people, they still have a direct intention to kill.

Oblique intention is a complex concept. We can see it as an intermediate result on the way to a final result.
For instance, if you want to kill someone by shooting them through a window, your direct intention is to kill the person. Your oblique intention is to break the window. To enter the room and kill the person, the bullet must break the window. Therefore, you have the oblique intention to commit criminal damage by breaking the window.

The Court of Appeal case of R v Nedrick established a two-part legal test for oblique intention, which was later approved by the House of Lords in R v Woollin.

  1. Was the result a virtually certain consequence of the defendant’s conduct?
  2. Did the defendant foresee that the result was a virtually certain consequence of their conduct?

If the answer to both questions is yes, then the defendant has oblique intention. In law, they intended the result of their conduct.

In homicide cases, courts have differentiated between intention and recklessness to capture those cases which lie between direct intention and recklessness. The court in Nedrick has stated that for Mens Reato be considered intentional, the result must be “virtually certain”. This means that the result is sure to occur unless something unexpected happens and is “inevitable for all practical purposes”.

Oblique intention may be defined as a grey area, widening the scope of liability and labelling as ‘intentional’ a state of mind that does not ordinarily constitute intention.

The Hierarchy of Mens Rea for Homicide.

We can consider Mens Rea as a hierarchy from most serious to least serious. At the moment, we have only considered the most severe form, which is direct intention and sits at the top of the hierarchy. This is why murder is punished most severely, as mentioned in part one — murder carries a mandatory life sentence. Oblique intention is just below it because the defendant is still intending to commit a severe crime and injure an individual and then murder them, whether by accident or not.

Below this there is intention with recklessness, followed by gross negligence, then negligence and finally, strict liability.

We can consider a logical flow of questions that will help to identify the level of intention of a defendant. The first question to ask is, was death or GBH the aim or purpose of the defendant’s actions? If yes, then we are dealing with direct intention. If not, we can move on to the next question.

What is death or GBH a virtually certain result of the defendant’s actions, and did the defendant realize this? If yes, we are dealing with oblique intention. If not, then this means that the defendant is not liable for murder and that we will be dealing with some manslaughter.

In summary, homicide involves crimes that result in a person’s death. Murder is the most serious type of homicide because it involves the deliberate or indirect intention to kill someone. It can be challenging to distinguish between different levels of intention when deciding how a defendant should be charged.

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