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The Mens Rea of Murder Is In Urgent Need of Reform ”
Word Count (inclusive of footnotes but exclusive of bibliography): 5123
Murder is a relatively rare crime within this jurisdiction, with there being only 54 recorded murders in 2010.1 Its scarcity does nothing but add to its perceived heinousness and strength of social stigma which attaches this particular crime with a minimum sentence of life imprisonment. For these reasons, and others, it is simply unacceptable that the law on the mental element of murder is allowed to be even slightly, in the word of Lord Mustill “…permeated by anomaly, fiction, misnomer and obsolete reasoning.”2 This essay endeavours to critically analyse the law in relation to the mental element of murder in order to demonstrate the urgent need for change. First the law on the mental element of murder will be set out. Following this the two elements of the mental element of murder will be analysed and critiqued, namely intention to kill and intention to cause serious injury.
The Law on the Mental Element of Murder:
Until the introduction of the Criminal Justice Act 1964, the law in relation to the mens rea of murder was governed by the common law concept of ‘malice aforethought’.3 Now it is governed by section 4 of the 1964 Act, which provides: (1) - Where a person kills another unlawfully the killing shall not be murder unless the accused person intended to kill, or cause serious injury to, some person, whether the person actually killed or not. (2) - The accused person shall be presumed to have intended the natural and probable consequences of his conduct; but this presumption may be rebutted.4
http://www.cso.ie/Quicktables/GetQuickTables.aspx? FileName=cja01c1.asp&TableName=Homicide+Offences&StatisticalProduct=DB_CJ. Last accessed on the 03/03/2011.
Attorney General’s Reference No.3 of 1994 (1997) available online at http://www.publications.parliament.uk/pa/ld199798/ldjudgmt/jd970724/gneral01.htm. Last Accessed on 07/03/2011.
Hanley, An Introduction to Irish Criminal Law (Dublin, 2nd ed., 2006) at 211. http://www.irishstatutebook.ie/1964/en/act/pub/0005/sec0004.html Last accessed on
Section 4(1) clearly requires proof of intention before a defendant can be convicted of murder. It provides that where the defendant intended to kill or seriously injure any individual, he is guilty of murder. It is irrelevant whether or not the victim was the intended target. Also, section 4(1) provides that an intention to cause serious injury is sufficient to ground a murder conviction. Section 4(2) is described by Hanley as the codification of the common law rule that people are presumed to intend the natural and probable results of their.5 This presumption was applied in People (DPP) v Hull6 From a practical perspective, section 4(2) applies particularly to cases of ‘oblique intention’.7 This is the law as it stands, in relation to the mental element in murder.
The Need for Change:
The first aspect of the mens rea of murder that is need of change is the area surrounding the meaning of ‘intention’ under Irish law. Clearly, proof an intention to kill or cause serious injury is required to ground a murder conviction. However, the legislators of the time unknowingly planted the seeds of confusion when they decided not to provide a definition of this fundamental element of murder within the statute. As Coffey points out, it is for this reason that its meaning of intention has to be “distilled” from the jurisprudence of the judiciary.8 It is clear from the relevant case law that two forms of intention are recognised by Irish law, direct and oblique. Direct intention encompasses the majority of murder cases and was defined, although in the context of capital murder, by Walsh J. in The People (DPP) v Murray9:
Hanley, An Introduction to Irish Criminal Law (Dublin, 2nd ed., 2006) at 212. (Unreported, Court of Criminal Appeal, 18 July, 1996).
Bacik, ““If it Ain’t Broke” – A Critical View of the Law Reform Commission Consultation Paper on Homicide: The Mental Element in Murder, ” (2002) 12(1) Irish Criminal Law Journal 6 at 6.
Coffey, “Codifying the Meaning of ‘Intention’ in the Criminal Law,” (2009) 73 Journal of Criminal Law 394 at 395.
 111 I.L.T.R 65.
“To intend to murder or to cause serious injury to a Civic Guard in the course of his duty is to have in mind a fixed purpose to reach that desired objective. Therefore the state of mind of the accused person must have been not only that he foresaw but also willed the possible consequences of his conduct.”10 Kugler defined direct intention as the situation where the accused acted with the intention of causing the proscribed result.11 It is clear from this that a direct intention involves having a sense of purpose as to a particular future action. This is relatively unproblematic when compared to the far more arcane matter of oblique intention. This form of intention arises in the situation where the actions of the accused are deliberate but a result, other than the one desired, comes about. It is argued here that it is this form of intention which most clearly exposes Irelands need for a statutory definition of intention. One of the antecedent cases on the subject of oblique intention is the English case of Hyam v DPP12. In this case the accused set fire to a property using petrol with the objective of frightening the occupants. As a result of this fire, two of the occupant’s daughters died. The trial judge convicted Hyam of murder and this conviction was upheld by the House of Lords by a majority of three to two. It stated that “…a person who, without intending to endanger life, did an act knowing that it was probable that grievous, in the sense of serious, bodily harm would result was guilty of murder if death resulted.”13 The test provided by the decision in Hyam effectively assimilated foresight of consequences with intention, but failed to outline any clear guidelines for trial judges when instructing juries on the meaning of intention with respect to the offence of murder. As well as this there was a distinct diversity in the terminology used in the judges reasoning, varying from a
The People (DPP) v Murray  111 I.L.T.R 65 at 84. A similar definition was given in The People (DPP) v. Douglas & Hayes (1985).
Kugler, Direct and Oblique Intention in the Criminal Law (Aldershot, 2002) at 4.  1 A.C. 55. Ibid, at 55.
foresight of ‘serious risk’14 to a foresight of ‘high probability’15. Coffey argues that it is for these reasons that the decision was subject to “severe criticism”16. As Hanley notes, this decision is important from an Irish perspective because despite its criticism, it strongly influenced the only reported Irish decision on oblique intent, which is the following case.17 In the case of The People (DPP) v Douglas & Hayes18 the applicants were convicted of shooting with intent to commit murder under section 14 of the Offences Against the Person Act, 1861. Here, the Court of Criminal Appeal followed the decision of the House of Lords in Hyam and held that where evidence existed that a reasonable man would have foreseen that the natural and probable consequences of the defendants’ conduct was that death would result and that where it could be established that the defendants had acted recklessly, the jury was entitled to infer from that that the defendants had intended to cause death by their actions.19 Both of these factors of course subject to the requirement that they be established beyond a reasonable doubt. This being the last reported case on oblique intention, it would seem that foresight of a death resulting as a natural and probable consequence of one’s actions is not the same as intention but may be used as evidence from which intention can be inferred. However, due to the level of development in England in this area of law over the past 25 years, it is hard to ascertain whether the Irish position on intention is Douglas & Hayes or in line with the English authority. The decision in Hyam effectively blurred the distinction between the mens rea of murder and that of manslaughter and as Coffey pointed out, it left the law on intention in England in a “… considerable state of uncertainty”.20 It is this blurring effect that caused the judiciary in England to
Ibid, at 65. Ibid, at 59.
Coffey, “Codifying the Meaning of ‘Intention’ in the Criminal Law,” (2009) 73 Journal of Criminal Law 394 at 398.
Hanley, An Introduction to Irish Criminal Law (Dublin, 2nd ed., 2006) at 78.  I.L.R.M. 25. Ibid, at 28. Coffey, “Codifying the Meaning of ‘Intention’ in the Criminal Law,” (2009) 73 Journal
reconstruct the level of foresight of repercussions needed to support the jury inferring intention. This reconstruction came in 1985, in the decision of R. v Moloney21. In this case a man shot his stepfather at point blank range with a shotgun after a drinking session. Lord Bridge in his judgement refused to follow the line of authority stemming from the decision in Hyam, stating that intention and foresight of consequence are not analogous and stated that where a direction should be given to a jury, it should comprise of two questions: 1) Was death or really serious injury a natural consequence of the defendant's voluntary act? 2) Did the defendant foresee that consequence as being a natural consequence of his act? 22 Lord Bridge went on to say that the jury should then be informed that if they answer positively to the two questions then intention may be inferred.23 The ‘Moloney guidelines’ suffered from a lack of a reference to probability and overly ambiguous terminology24 and so were applied and clarified a year later in the decision of R v Hancock and Shankland25. In this case two miners on strike pushed a concrete slab from a bridge onto a highway, killing a taxi driver who was transporting a fellow miner to work. Lord Scarman believed the principles set out in Moloney were defective due to the omission of a reference to probability.26 So in response to this, the House of Lords held that the judge should refer to probability and explain to the jury that the greater
the probability of the consequence the more likely it was that the consequence was foreseen and that if it was foreseen the more likely it was that it was intended.27 of Criminal Law 394 at 398.
(1985) 1 A.C. 905. Ibid, at 907. Ibid, at 907. Ibid, at 910. “natural and probable consequences”. (1986) 2 W.L.R. 357. Ibid, at 362. Ibid, at 357.
The next decision in a series of cases on intention in English criminal law was R v Nedrick28, which is factually similar to Hyam. In the Court of Appeals decision, Lord lane CJ was of the opinion that where a simple direction as to the meaning of intention is not enough, the jury should be directed that they “…are not entitled to infer the necessary intention, unless they feel sure that death or serious bodily harm was a virtual certainty (barring some unforeseen intervention) as a result of the defendant's actions and that the defendant appreciated that such was the case.”29 The meaning of intention was subsequently clarified by the decision in R v Woollin30. In this case the appellant got angry and threw his three month old son on to a hard surface, killing him. Woollin was convicted of murder and his appeal to the Court of Appeal dismissed. On appeal to the House of Lords quashed his conviction holding that a jury was “…not entitled to find the necessary intention for a conviction of murder unless they felt sure that death or serious bodily harm had been a virtual certainty (barring some unforeseen intervention) as a result of the defendant's actions and that the defendant had appreciated that such was the case, the decision being one for them to be reached on a consideration of all the evidence.”31 This decision altered the Nedrick test very slightly, simply substituting the word ‘find’ for ‘infer’. As Hanley noted, this was done as a matter of simplicity for the jury.32 As the Law Reform Commissions consultation paper on ‘Homicide: The Mental Element in Murder’ points out, it is difficult to determine whether or not the Irish definition of intention is that of Woollin.33 For the ‘virtual certainty’ test to be applicable in this jurisdiction it would either have to be codified in statute or created through a judicial decision, so despite the advancements in England it more likely that Douglas &
Hayes still holds sway. It is unlikely that the Irish law followed English law and did not anybody about it. It is argued here that it is not necessarily a bad thing that Ireland’s definition of intention
(1986) 1 W.L.R. 1025. Ibid, at 1028. (1998) 3 W.L.R. 382. Ibid, at 382. Hanley, An Introduction to Irish Criminal Law (Dublin, 2nd ed., 2006) at 78.
Law Reform Commission, Consultation Paper on Homicide: The Mental Element in Murder, LRC CP17 – 2001 (Dublin, 2001) at 43 paragraph 4.005.
does not line up to that of Woollin. The ‘virtual certainty’ test established by Woollin is overly restrictive in nature. The Law Reform Commission put forward the argument that this test has the potential to allow morally culpable acts to fall outside the scope of murder. In its consultation paper the commission expresses the view that the fault element for murder should be subject to expansion.34 The reasoning behind this recommendation is founded on the possibility that confining the mental element of murder to the fault element of intention may “…exclude from the definition of murder many killings which ought to be properly punishable as murder.”35 In order to demonstrate this, the commission uses a variation of the vintage ‘terrorist example’. An early note of the terrorist example was propounded by Williams.36 In his example a villain of the deepest dye places an insured parcel on an aeroplane that is set to explode in order that the plane will be brought down and insurance money collected. If the terrorist’s objective was simply to claim insurance money but nevertheless he perceived a high probability of death arising, he would not be guilty of murder under the English ‘virtual certainty’ test. This in the commission’s opinion is an “unsatisfactory” result.37 The over restrictive nature of this test is arguably apparent in the decision of Woollin itself. Here, the jury was entitled to find the requisite intention if serious injury was a ‘virtual certainty’. As Woollin was convicted of manslaughter, common sense dictates that either it was wrongly decided in that the jury was overly lenient38 or that a three month old baby being thrown to the ground with enough force to fracture his skull does not have serious injury on the part of the baby as a virtual certainty. This is an incredibly high standard. Take for example one individual shooting another in the head at point blank range. In this scenario, death is not a ‘virtual
Ibid, at 62 paragraph 4.075. Ibid, at 44 paragraph 4.006. Williams, Textbook of Criminal Law (London, 2nd ed., 1983) at 85.
Law Reform Commission, Consultation Paper on Homicide: The Mental Element in Murder, LRC CP17 – 2001 (Dublin, 2001) at 44 paragraph 4.006.
Pedain, “Intention and the Terrorist Example,” (2003) Criminal Law Review 579 at 583 and 584. Here Antje Pedain suggests that few would doubt that the result in Woollin was correct simply because “…we feel convinced that death or serious injury was the very last thing that the defendant wanted to ensue from his actions, not only after he had calmed down again but also at the very moment he performed them.”
certainty’, as the Paraguay footballer Salvador Cabañas would strongly argue.39 Clearly, in the unlikely event that Irish law has adopted the English position, change is would be appropriate. For now, it is presumed that Douglas and Hayes is the law in Ireland. As the English authorities convincingly argue, a test based on rather ambiguous and potentially overly embracing terminology such as foresight of ‘natural’ and ‘probable’ consequences of ones actions is not appropriate for an offence such as murder. Murder carries with it a mandatory life sentence and so it naturally follows that it should be reserved for the most culpable of crimes. This standard is too low of a threshold and so it has the effect of blurring the line between murder and manslaughter. This is especially serious considering the fact that murder has a mandatory life sentence.40 It is obvious that the law in relation to intention within the context of murder is in need of change. But what degree of change is suitable? The ‘natural and probable’ test currently employed by Irish law makes murder an over-inclusive offence whereas the ‘virtual certainty’ applied in England is under-inclusive. It would seem that an appropriate balance has been struck by the Law Reform Commission. The highly respected Law Reform Commission41 has put forward numerous recommendations on the matter of intention which seem to resonate with reason. First, the Commission recommends that intention be defined by statute in order to provide for more “clarity and certainty” in this particular area of law.42 A definition embracing foresight of a ‘virtual certainty’ is suggested as being the most suitable.43 This adaptation on its own would bring Irish law into an unsatisfactory condition, for the
http://www.guardian.co.uk/football/2010/jan/25/salvador-cabanas-paraguay-shot He was shot in the head at point blank range and survived. Last accessed on 20/03/2011.
Section 2 Criminal justice act 1990 http://www.irishstatutebook.ie/1990/en/act/pub/0016/sec0002.html#sec2 Last accessed on 14/03/2010.
http://www.lawreform.ie/. 70% of the Law Reform Commission’s recommendations have led to alteration of the law. Last accessed on 14/03/2011.
Law Reform Commission, Consultation Paper on Homicide: The Mental Element in Murder, LRC CP17 – 2001 (Dublin, 2001) at 76 paragraph 5.03.
Law Reform Commission, Consultation Paper on Homicide: The Mental Element in Murder, LRC CP17 – 2001 (Dublin, 2001) at 78 paragraph 5.15.
numerous reasons discussed above. However, in order to overcome the troublesome oblique intention issue and the over restrictive nature of the ‘virtual certainty’ test the commission recommends that Irish law adopt a formulation of the American Model Penal Code concept of “reckless killings manifesting an extreme indifference to the value of human life”.44 Section 210.2.1(b) of the Model Penal Code provides that criminal homicide constitutes murder when “…it is committed recklessly under circumstances manifesting extreme indifference to the value of human life.”45 Section 202.2c provides that a person acts recklessly when he “…consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct.”46 This code reflects the belief enunciated by the commission that at some stage an individual’s willingness to run a known risk of causing death is culpable enough to be regarded as equivalent to that of an intended killing.47 As the Commission points out, the adoption of such a provision would have numerous advantages. First, it would encapsulate within its definition the kind of morally culpable reckless killings which have led to the development of the rather troubling line of authority on oblique intention, for example the hypothetical terrorist scenario. Secondly, the terminology used in the Model Penal Code (“substantial and unjustifiable risk”) allows the jury to make an enquiry into the moral culpability of a defendant which in turn would naturally allow for just decisions. Thirdly, the language used allows for an investigation into a defendants moral culpability which circumscribes the onerous problems created by the dependency on mathematical percentages of chance which other routes to reform entail.48 The arbitrariness of such a dependency is made evident by the
Ibid, at 62 paragraph 4.075.
Denno, “Selected Model Penal Code Provisions,” (2009) at 41. Document available at http://law.fordham.edu/assets/Faculty/model_penal_code_selected_sections(1).pdf. Last accessed on 12/03/2011.
Ibid, at 7.
Law Reform Commission, Consultation Paper on Homicide: The Mental Element in Murder, LRC CP17 – 2001 (Dublin, 2001) at 44 paragraph 4.008.
Law Reform Commission, Consultation Paper on Homicide: The Mental Element in Murder, LRC CP17 – 2001 (Dublin, 2001) at 45 to 51.
Pennsylvanian case of Commonwealth v Malone.49 In this case, Malone found a gun, put a bullet in one of the chambers and asked his friend Long to play Russian roulette. Malone pulled the trigger 3 times, killing long on the third shot. A 60% chance the gun would fire was sufficient to ground a murder conviction. However, in the hypothetical yet morally indistinguishable situation of the gun firing on the first shot the chance percentage would only be 20% and this may not have been seen by the Supreme Court in this case as being sufficient to ground a murder conviction. Despite the fact that the Model Penal Code formulation appears to have the potential to side step many of the problems ordinarily present, it of course is subject to numerous criticisms. First off, many academic commentators are of the opinion that the tests “inherently flexible subjective nature”50 has the potential to lead to inconsistent or unjust decisions and that it may allow juries to ground decisions on irrelevant or discriminatory factors. Although this criticism carries some weight, it is simply not strong enough to remove the Model Penal Code formulation as a possible candidate for reform. As the commission points out the possibility that juries may be influenced by irrelevant background factors is present in every area of law.51 More importantly, it cannot be overlooked that it is the collective common sense of twelve citizens sitting as a jury that is the foundation of modern criminal law. Another possible criticism would be that incorporating recklessness into the mens rea for murder blurs the distinction between murder and manslaughter.52 It is worth noting here that the Commission did not suggest the fault element of murder be expanded to embrace recklessness as to serious injury.53 Bacik’s primary concern with the ‘recklessness’ concept being added to the definition of murder is that it would become substantially harder to justify the distinction between
354 Pa. 180, 47 A.2d 445 (1946).
Law Reform Commission, Consultation Paper on Homicide: The Mental Element in Murder, LRC CP17 – 2001 (Dublin, 2001) at 53 paragraph 4.036.
Ibid, at 53 paragraph 4.037.
Coffey, “Codifying the Meaning of ‘Intention’ in the Criminal Law,” (2009) 73 Journal of Criminal Law 394 at 412.
Law Reform Commission, Consultation Paper on Homicide: The Mental Element in Murder, LRC CP17 – 2001 (Dublin, 2001) at 73 paragraph 4.109.
murder and manslaughter as murder would have an “absurdly broad” definition.54 This is a strong argument but again it is not strong enough to make the Model Penal Code formulation an inappropriate route to reform. The test would be designed to encapsulate only the most heinous killings55, ones that would be viewed by the people as being morally worthy of a murder conviction. As well as this, if the mandatory life sentence for a conviction of murder was removed, as both Bacik56 and the Law Reform Commission57 have suggested it should be, then this argument is severely weakened because the impact of the difference between murder and manslaughter would be reduced. Finally, Bacik holds the opinion that if the unique social stigma attached to murder was attached to reckless killings manifesting an extreme indifference to human life, it would become less unique. This is not necessarily the case. As noted above the ‘extreme recklessness’ test would be designed to embrace killings which it is argued are morally worthy of a murder conviction. This fact, along with an abolition of the mandatory life sentence for murder, severely weakens this particular argument as well.
Under section 4 of the Criminal Justice Act, 1964, an intention to cause ‘serious injury’ is sufficient to ground a murder conviction. This rule has been subject to severe criticism from academics and practitioners both in this jurisdiction and abroad. This is primarily because it seems unjust that, as Lord Mustill pointed out, it is possible to commit murder without wishing death or without the least thought that it might be the result of inflicting serious bodily harm.58 Mustill himself described this
Bacik, ““If it Ain’t Broke” – A Critical View of the Law Reform Commission Consultation Paper on Homicide: The Mental Element in Murder, ” (2002) 12(1) Irish Criminal Law Journal 6 at 6.
Law Reform Commission, Consultation Paper on Homicide: The Mental Element in Murder, LRC CP17 – 2001 (Dublin, 2001) at 53 paragraph 4.040.
Bacik, ““If it Ain’t Broke” – A Critical View of the Law Reform Commission Consultation Paper on Homicide: The Mental Element in Murder, ” (2002) 12(1) Irish Criminal Law Journal 6 at 7.
Law Reform Commission, Report on Sentencing, LRC 53 – 1996 (Dublin, 1996) at 41 paragraph 5.12.
Attorney General’s Reference No.3 of 1994 (1997) available online at http://www.publications.parliament.uk/pa/ld199798/ldjudgmt/jd970724/gneral05.htm
particular anomaly as something of a relic which developed from common law rules that have long since fallen away.59 Another criticism of this rule is the fact that there is no statutory definition for the term ‘serious injury’. Distillation of judicial jurisprudence has made it clear that the term is of an objective nature. As Henchy J. said in Murray “…since the enactment of s. 4 of the Criminal Justice Act, 1964 , the offence of murder is basically one of intention which need not encompass the resulting death.”60 As well as this, Ashworth and Mitchell are of the opinion that the ‘serious injury’ rule violates the principle of correspondence.61 This is because murder involves a killing which is unlawful so the mens rea should be constructed to incorporate some form of death as a key component. Ashworth and Mitchell point out that various academics believe that the foundation for going beyond the principle of correspondence lies in the ‘notion of attack’.62 This is the concept that one who intentionally attacks another’s bodily safety should take responsibility for the consequences of that attack, even if not foreseen.63 This line of reasoning is then critiqued by Ashworth and Mitchell on the basis that it the degree of criminal liability should not be allowed to turn on the chance outcome.64 This is a relatively strong argument however one cannot ignore society’s general perceptions of moral culpability which dictate that when an individual disregards the law and uses unlawful violence he should be held responsible for his actions. After all, this is what the law is founded upon.
Last Accessed on 17/03/2011. Here, Lord Mustill said “It is, therefore, possible to commit a murder not only without wishing the death of the victim but without the least thought that this might be the result of the assault.”
Hanley, An Introduction to Irish Criminal Law (Dublin, 2nd ed., 2006) at 212.  111 I.L.T.R 65 at 96. Ashworth and Mitchell, Rethinking English Homicide Law (New York, 2000) at 12. Ibid. Ibid. Ibid at 13.
Finally, it would initially appear unjust to place the same label of moral culpability on an individual who intends to unlawfully cause death and an individual who intends to unlawfully cause serious harm. Although both are heinous crimes, a murder conviction grounded on the latter seems to have an air of inappropriateness around it, especially since there is no statutory definition of ‘serious injury’. As was the case with intention to kill, law on this area is in need of some form of alteration, but to what degree? Are the difficulties created by the ‘serious injury’ provision severe enough to merit abolition of the rule as suggested by the Law Reform Commission of Canada?65 Or is the best option simply to keep the rule but to modify it in some way? The Law Reform Commission provisionally recommends that an intention to cause serious injury should be retained as part of the mental element of murder.66 It acknowledges that for this to happen, the term ‘serious injury’ must be clarified so that it applies to injuries of a particularly grave nature only.67 This recommendation is one that is founded on both practical reality and public policy. As the commission points out, it would naturally become more difficult for a prosecution to ground a deserved murder conviction if the accused individual could claim that he simply intended to cause injury. Also, one would find it difficult to argue that the difference of moral culpability between an intention to cause serious injury resulting in death and an intention to cause serious injury is sufficient enough to merit different convictions. It would seem that although there are strong arguments in favour of complete abolition of the rule, the practical reality and moral justification behind the argument of simple clarification is the stronger.
Law Reform Commission of Canada, Recodifying Criminal Law, Report 31 (Ottawa, 1987) at 57.
Law Reform Commission, Consultation Paper on Homicide: The Mental Element in Murder, LRC CP17 – 2001 (Dublin, 2001) at 72 paragraph 4.101.
Law Reform Commission, Consultation Paper on Homicide: The Mental Element in Murder, LRC CP17 – 2001 (Dublin, 2001) at 71 paragraph 4.098.
The law in relation to intention within the context of murder is currently occupying a most unsatisfactory position. First, it is not clear whether the Irish decision of Douglas and Hayes or the English ‘virtual certainty’ test is applicable in this jurisdiction. This in itself would create a desire for reform through clarification. However, the problem is much more serious than mere uncertainty. Both positions are arguably unsatisfactory with the former being over-inclusive and the latter being under-inclusive. This fact cements the need for reform to the extent that it is undeniably obvious. The most suitable method of reform would be an adaption of the Model Penal Code formulation of an extreme recklessness manifesting an extreme indifference to the value of human life, for the reasons discussed above. The other aspect of the mens rea of murder that was discussed, the intent to cause serious injury, is also in need of change. Although there are many strong arguments in favour of radical reform such as abolition of the rule in its entirety, the practical reality dictates that redefining the meaning of the term ‘serious injury’ is the most suitable route of reform. The primary purpose of this essay was to demonstrate that the law in relation to the mens rea of murder is in urgent need of reform, this has been done. As Campbell points out, the number of firearm related homicides is on the increase68 meaning section 4 of the Criminal Justice Act, 1964, will be coming into play a lot more in the next few years. This fact highlights the urgency in the need for reform because the longer the law stays in its current ambiguous state, the odds of a morally culpable killer avoiding a deserved murder conviction increases.
Campbell, “Responding to Gun Crime in Ireland,” (2010) British Journal of Criminology 414 at 429.
Websites http://www.publications.parliament.uk/pa/ld199798/ldjudgmt/jd970724/gneral01.htm http://www.cso.ie/Quicktables/GetQuickTables.aspx? FileName=cja01c1.asp&TableName=Homicide+Offences&StatisticalProduct=DB_CJ http://www.irishstatutebook.ie/1964/en/act/pub/0005/sec0004.html http://www.guardian.co.uk/football/2010/jan/25/salvador-cabanas-paraguay-shot http://www.irishstatutebook.ie/1990/en/act/pub/0016/sec0002.html#sec2 http://www.lawreform.ie/ http://law.fordham.edu/assets/Faculty/model_penal_code_selected_sections(1).pdf http://www.publications.parliament.uk/pa/ld199798/ldjudgmt/jd970724/gneral05.htm
Cases Attorney General’s Reference No.3 of 1994 (1997)
People (DPP) v Hull (Unreported, Court of Criminal Appeal, 18 July, 1996) The People (DPP) v Murray  111 I.L.T.R 65 Hyam v DPP  1 A.C. 55 The People (DPP) v Douglas & Hayes  I.L.R.M. 25 R. v Moloney (1985) 1 A.C. 905 R v Hancock and Shankland (1986) 2 W.L.R. 357 R v Nedrick (1986) 1 W.L.R. 1025 R v Woollin (1998) 3 W.L.R. 382 Commonwealth v Malone 354 Pa. 180, 47 A.2d 445 (1946)
Books Hanley, An Introduction to Irish Criminal Law (Dublin, 2nd ed., 2006) Kugler, Direct and Oblique Intention in the Criminal Law (Aldershot, 2002) Williams, Textbook of Criminal Law (London, 2nd ed., 1983) Ashworth and Mitchell, Rethinking English Homicide Law (New York, 2000)
Articles Coffey, “Codifying the Meaning of ‘Intention’ in the Criminal Law,” (2009) 73 Journal of Criminal Law 394 Bacik, ““If it Ain’t Broke” – A Critical View of the Law Reform Commission Consultation Paper on Homicide: The Mental Element in Murder, ” (2002) 12(1) Irish Criminal Law Journal 6 Pedain, “Intention and the Terrorist Example,” (2003) Criminal Law Review 579 Denno, “Selected Model Penal Code Provisions,” (2009)
Law Reform Commission, Consultation Paper on Homicide: The Mental Element in Murder, LRC CP17 – 2001 (Dublin, 2001) Law Reform Commission, Report on Sentencing, LRC 53 – 1996 (Dublin, 1996) Law Reform Commission of Canada, Recodifying Criminal Law, Report 31 (Ottawa, 1987)
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