When Law Gets In The Way Of Justice: A Historical

Analysis of Whether the Mens Rea for Murder is

Defensible

160364752
May 1, 2018

DISSERTATION (LA3200)
Undergraduate Laws, University of London

1
 Abstract

The concept of intention has long been a matter of judicial debate. Some would mockingly
go as far as to say the current predicament of the law on intention is a work of art1 while
others have questioned whether it is even possible to come to a comprehensive definition
or is it a Chimera that can only be conceived but not actualized.2 This dissertation, by
tracking the historical origins of the notion of intention in English Law, aims to address
these concerns in light of the overarching question of whether the mens rea for murder is
defensible with regards to the punishment that accompanies it.

The methodology being employed in the following dissertation will be an amalgamation of

black-letter/doctrinal and socio-legal research. Primary research will include an overview
of any parliamentary statutes that are relevant to the law of intention as well as how they
were interpreted by the different judges over time. Case law development ranging from
those in the 20th century up to contemporary case law and Law Commission Reform
proposals will be chronologically arranged and assessed. The first two chapters will
therefore be framed from an ‘internal’3 point of view whereas the third chapter, which will
analyze existing suggestions for reform, will derive its content from ‘external’ socio-legal
resources as well.4

Word Count: 10000

1 WW Wilson , Criminal Law (5th edition, Pearson Education Limited c2014) 366
2 Nicola Lacey, 'A Clear Concept of Intention: Elusive or Illusory?' [1993] 56(5) The Modern Law Review
3 Beverly Brown, Dissertation (University of London c2017) 69

4 Ibid 70

2
 Acknowledgements

I would like to give special mention to the following people,

My Criminal Law teacher, Ms. Abira Ashfaq, whose unwavering dedication to the subject
inspired me to undertake this dissertation.

The Dean and Directors of Denning Law School, Sir Huzaifa Muqadam and Sir Abdul Qadir,
whose tireless efforts are the reason I was able to manage my workload along with my
research.

My good friends Abdullah Sandeelo, Sana Baig, Yashma Naufal Hasan, Muhammad Zafar
Saigal and Maham Tariq for not only lessening my academic burden but also serving to be a
source of critique and motivation throughout this process.

And lastly, My mother, Shazia Wasif, for encouraging me to complete my work against all
odds.

3
 Table of Contents

Table of Cases ............................................................................................................................................... 5

Table of Legislation ....................................................................................................................................... 5
Chapter One Introduction ............................................................................................................................. 6
The Elements of Murder ............................................................................................................................... 6
The Mens Rea of Murder; Subjective or Objective? ..................................................................................... 7
‘Aiming at’ hypothesis and the terrorist debate ........................................................................................... 9
Murder and the Correspondence Principle ................................................................................................ 10
The Contentious Case of Oblique Intention and the Development of the Modern Day Test for it ........... 13
Chapter Two Introduction........................................................................................................................... 17
The Determinant of Culpability - Judge or Jury?......................................................................................... 17
Recklessness and Intention - Is There an Overlap or Are They Mutually Exclusive .................................... 18
The Rationale behind Conviction and Representative Labeling ................................................................. 19
The Historical Disquiet of Oblique Intention and Its Violation of the Rule of Law ..................................... 21
Chapter Two Conclusion ............................................................................................................................. 23
Chapter Three Introduction ........................................................................................................................ 24
Explicitly Acknowledge Motive as a Legal Principle .................................................................................... 24
Development of Defences .......................................................................................................................... 25
Modification of the Model Direction for Oblique Intention ....................................................................... 26
The Law of Homicide in other Civil Law and Common Law Jurisdictions ................................................... 27
Chapter Three Conclusion........................................................................................................................... 28
Dissertation Conclusion .............................................................................................................................. 29
Bibliography ................................................................................................................................................ 30

4
Table of Cases

A-G Ref. No. 3 OF 1994 [1997] 3 All ER 936

Broome v Perkins [1987] 85 Cr App R 321

DPP v Smith [1961] AC 290 [HL]

Frankland and Moore [1987] AC 576, PC

Gillick v West Norfolk & Wisbeck Area Health Authority [1986] AC 112 House of Lords

Mohan [1976] QB 1; [1975] 2 All ER 193

Re A (conjoined twins) [2001] 2 WLR 480

R v Cunningham [1982] AC 566

R v Hancock and Shankland [1986] 1 A11 ER 641
R v Hyam [1975] AC 55 House of Lords
R v Inglis [2011] 1 WLR 1110 Court of Appeal
R v Janjua [1998] All ER (D) 172
R v Matthews and Alleyne [2003]
R v Moloney [1985] AC 905 House of Lords
R v Nedrick [1986] 1 WLR 1025 Court of Appeal
R v Powell and English [1997] 3 WLR 959;
R v Steane 1947 KB 997
R v Stringer - [2008] All ER (D) 102 (Jun)

R v Vickers [1957] 2 QB 664

R v Woollin [1999] AC 82 House of Lords

Winterbottom v Wright [1842] 10 M & W 109

Table of Legislation

Criminal Justice Act 1967

Lord Ellenborough’s Act of 1803

Offences Against Persons Act 1861

The Homicide Act 1957

5
Chapter One Introduction

This first chapter aims to track the historical origins of the term ‘intention’ in the criminal
law. Since there is no parliamentary statute defining intention and it is a product of the
common law it is no surprise that there has been a lot of uncertainty surrounding the
nebulous concept of what constitutes as ‘intending an outcome’. From the bifurcation of
intention into direct and oblique, to the ongoing debate of whether intention to cause
grievous bodily harm can be sufficient to ground a conviction for murder, English judges
have found ingenious ways to both expand and constrict the doctrine according to their
notion of justice. Contradictory case law and certain hypothetical examples will be
propounded to highlight the uncertain and dubious nature of the law over the years and
how it continues to be a focal point of academic debate up to this day.

The Elements of Murder

Although to a layman it might seem redundant to explore law that has already been
overruled but as a lawyer one understands the significance of understanding the rationale
even behind unconventional decisions. ‘Hard cases make bad law’5 after all and it is the aim
of my dissertation to delve into the penumbra of cases that impacted the conversation of
what we understand intention to be as of today.

The traditional definition of murder, modified slightly to suit modern day language, has
been derived from a book written by the notable academic Coke in the seventeenth
century.6 In simple terms murder would be defined as the ‘intentional killing of another
human being with malice aforethought’7. Whilst there is plenty of conjecture surrounding
what constitutes as ‘human being’ and is killing the same as to ‘cause death’, my main point
of contention is the internal element or the mens rea of the crime, viz, malice aforethought.

Malice aforethought in itself gives us a very inaccurate idea of what essentially would count
as relevant mens rea for murder. The language gives us the illusion that pre-meditation or
ill-will might be a necessary component but it has been since stated that there is no such
requirement and as long as it ‘not be an afterthought’8 the accused will still be guilty. The
requirement of malice also does not need to be wicked rather motive is something that is
expressly negated but nevertheless judges have tried to bend the law by introducing terms

5 Winterbottom v Wright (1842) 10 M & W 109

6 Smith and Hogan, Criminal Law (10th edition, Oxford 1965) 613
7 Wilson (n 1) 360

8 Broome v Perkins (1987) 85 Cr App R 321

6
like ‘innocent intent and criminal intent’9. The judiciary however, still maintains its staunch
claim that one’s reasons for acting are immaterial to the finding of intention.

The Mens Rea of Murder; Subjective or Objective?

Ever since the Royal Commission on Capital Punishment (RCCP) (Cmd 8932) in 1953
recommended the sphere of murder be designed to exclude the doctrine of ‘constructive
murder’10 Parliament started debating on a way to enact such reforms and eventually did
so under the Homicide Act 1957.11 The case of Smith12 thus, is a good starting point to see
the circuitous route taken by the judiciary in interpreting a relatively straightforward piece
of legislation. Glanville Williams, who is considered one the pioneers of English criminal
law, said in his commentary of Smith13 that he had never seen a Statute of parliament being
treated with as much disdain as the 1957 Homicide Act, in particular s.1(1)14 as was in
Smith.

The judgment of the case follows that upon acquittal by the Court of Criminal Appeal, the
Crown appealed to the House of Lords and the honourable Viscount Kilmuir LC restored
the conviction of Smith albeit without executing the death sentence which had not been
abolished up to this point.15 The reasons for arriving at such an outcome though were
fallacious. Their Lordships did not display a holistic understanding of the political nuance
which led to the abolition of the felony-murder rule or pay due diligence to the academic
criticism16 of the decisions in Vickers [1957] and Ward [1956] which they cited as
precedent for murder being committed via an intention to cause Grievous Bodily Harm.
The Court goes on to make odious claims of how the question of a person foreseeing the
natural and probable result of his actions was one that should be addressed objectively and
how the presumption of him intending such a result could only be rebutted by evidence of

9 R v Steane 1947 KB 997

10 Smith and Hogan (n 6) 621
11 The Homicide Act 1957

12 DPP v Smith [1961] AC 290 [HL]

13 Glanville Williams, 'Criminal Law—Murder—Presumption of Intent' [1960] 18(2) Cambridge Law

Review 140
14 Abolition of “constructive malice”-(1)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.
15 Murder(Abolition of Death Penalty)Act 1965 s 1(1)

16 In Oxford, Dr. Goodhart referred to Ward as "that unfortunate case" (72 L.Q.R. 166); Mr. Turner delivered a

broadside against Vickers in [1958] C.L.R. 15; and a number of other academic pronouncements to the same
effect could be cited

7
intoxication. Therefore, the only valuable addition the decision makes to the law is its
clarification on the term grievous bodily harm needing to be ‘really serious’ and not just
merely serious17 even though Janjua18 later held the word “really” is not required in judicial
directions. However, even this qualification did not require the so called ‘reasonable man’
to foresee a danger to life as a concomitant to his intention of causing grievous bodily harm
and was thus the subject of a wave of criticism in later cases.

Smith was not formally overruled in Hyam19 but Lord Diplock did remark that it was
wrongly decided and Lord Scarman in Hancock20 stated that by laying down an objective
test it misrepresented the common law test for murder. Lord Hailsham in Hyam, who gave
the leading judgment, assumed it need not be overruled since s.8 of the Criminal Justice Act
196721 effectively did so - although such was not the case since s.8, on proper construction,
was a test of how intention must be proved as opposed to when it must be proved. The
Privy Council case of Frankland and Moore22 on the Isle of Man gave the five Law Lords to
rule on the authority of Smith and they unanimously declared that it was a gross
misstatement of the law and ought not to be followed. Thus concluding, the test for
determining intention always was and will remain to be a subjective one.

Drawing the Subtle Line between Murder and Manslaughter

Next in line of contentious cases was the ruling of Hyam. Stephen in his book ‘The History
of The Criminal Law of England’ said he was uncertain that no distinction would be drawn
in law between a person whose aim and desire is to bring about a particular event and
those who were aware that their conduct was likely to produce such a result yet decided to
take the risk anyway to achieve some other purpose which served as motive for their
actions. The matter was addressed head on in Hyam and the court concluded that both
these categories of people were ‘morally indistinguishable’23 in the eyes of the law.

"Is malice aforethought in the crime of murder established by proof beyond reasonable
doubt that when doing the act which led to the death of another the accused knew that it

17 Williams (n 13 ) 142
18 R v Janjua [1998] All ER (D) 172
19 R v Hyam [1975] AC 55 House of Lords

20 R v Hancock and Shankland [1986] 1 A11 ER 641

21 Criminal Justice Act 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

22 Frankland and Moore [1987] AC 576, PC
23 Smith and Hogan (n 6) 623

8
was highly probable that that act would result in death or serious bodily harm?"24 was the
question at hand in Hyam and it is interesting to see the depth of analysis carried forth by
Lord Hailsham(leading judgment) and Lord Diplock(dissenting judgment) in arriving to
their conclusions and the reasons given by them. While Lord Hailsham LC rejected the
claim that foreseeing a consequence as highly probable is the same as intending it he
continued on to say that it could be an alternative type of malice aforethought equally
effective as intention. Ackner J(trial judge) was according to him correct in his direction via
Stephens digest and Viscount Dilhorne agreed with his analysis saying whether or not it
amounted as intention(he was inclined to think it was) it was still established for at least
100 years that this knowledge was equivalent to malice aforethought.25 Lord Cross agreed
on the pretense of Vickers being rightly decided whilst Lord Diplock and Kilbrandon
dissented saying intention to cause serious bodily harm was not enough and must be
accompanied by an intention to do an act likely to endanger life.26 Thus, the appeal by Mrs.
Hyam was dismissed after the CoA had also initially dismissed it but ‘not without some
reluctance’.

‘Aiming at’ hypothesis and the terrorist debate

Perhaps more interesting was the fact that Lord Hailsham introduced the element of
‘aiming at someone’ for the risk-taking to amount to murder. Interestingly enough neither
of the other two majority Lords used such terminology. Criticism of such a view can be
expounded upon by the hypothetical terrorist example used often in English law. Glanville
Williams raises such a point by arguing what would be the verdict of the man who plants a
bomb in a public place but gives them a warning to escape within an ample amount of time.
Such a person surely did not ‘aim at’ any individual in particular nor did he plan on causing
death or grievous bodily harm, he merely meant to cause panic.27 So if some individual was
impervious to his surroundings and ended up dying as a result of the explosion then under
the law decided in Hyam the terrorist would escape the conviction of murder.

A similar concern was raised by Lord Bridge in the case of Moloney28 where he says that
such wording that was introduced in Smith to differentiate between murder and
manslaughter inadvertently ended up exonerating the above mentioned terrorist. The
terrorist, despite giving a timely warning, put members of the bomb disposal squad at risk

24 Glanville Williams, 'Criminal Law—The Mental Element In Murder' [1974] 33(2) Cambridge Law
Review 200
25 Smith and Hogan (n 6) 623

26 Ibid

27 Williams (n 24) 201

28 R v Moloney [1985] AC 905 House of Lords

9
whilst not ‘aiming at’ them. He sighed that in modern day times such an example was not
far from reality and safeguards must be introduced to ensure a murder conviction for such
a person. Thus, he rejected the proposition of Smith and Hyam and preferred the exposition
of intention by Lord Goddard in Steane.29 The report of the criminal law revision committee
later too vindicated his viewpoint by suggesting an amendment in the law to make the
hypothetical terrorist Lord Bridge spoke about guilty of murder.

More recently this issue was considered by A. Pedain30 and he introduced the concept of a
risky alternative and a safe alternative to explain the situation of both Hyam and the
hypothetical terrorist. He argues that while both of them in the ideal scenario would not
have wanted anyone to get hurt, ‘creation of risk was a necessary means to an end’ for
them and by consciously shunning the ‘safe alternative’ of placing a hoax bomb or just
shouting fire and instead opting for the risky alternative of creating a ‘real risk of harm’
accruing from their actions their disappointment as to the outcome is immaterial in
ascertaining their guilt. He claims such a person has achieved ‘too much’ rather than
‘something different’ and should therefore be held as liable for their actions.

Thus while Hyam was convicted in 1975, it would be correct to say if such a case came in
modern day courts it would have a different outcome. Nevertheless the case did stimulate
some academic discussion and to date is talked about as an example of the obscurity
between murder and reckless manslaughter.

Murder and the Correspondence Principle

Murder is a crime of specific intent and not general intent. This translates to mere
recklessness not being sufficient ground for conviction and intention needing to be a
prerequisite of any finding of guilt.31 Kugler has referred to such crimes as intention crimes
since nothing less than intention would suffice as mens rea in front of a jury, though some
would disagree with such a stringent formulation and such alternatives will also be
considered. As of now however, English law has categorically stated that given the grave
nature of the crime, the accused must in the least be consciously aware of his voluntary
actions in order to be found guilty of murder.

Based on the gravity of the label of murderer and the punishment accompanying it, one
would assume that only people who were truly guilty of wanting to kill another would be

29 ( n 9 ) (Lord Goddard CJ) p 1004

30 Antje Pedain, 'Intention and the Terrorist Example', Criminal Law Review, (2003) 579
31 Itzhak Kugler, 'The Definition of Oblique Intention' [2004] 68(1) The Criminal Law Review 1-2

10
convicted. However the curious case of Vickers32 introduced an area in the law which
raised quite a few eyebrows particularly from purists who believed constructive crime was
an abhorrence of the law. It is essential to understand the background of the case as right
before its ruling the Homicide Act’57 was enacted and the Court of Criminal Appeal under
Lord Goddard had to interpret S.1(1) which spoke about the ‘abolition of constructive
malice’.

The court ruled that implied malice was something different to constructive malice and
only the latter had been abolished by the Statute. Implied malice was always a category of
intention by virtue of the maxim malum in se(wrong in itself) in the old cases.33 Where
there is a killing in the furtherance of another offence that offence must be ignored and the
killing be assessed independently on whether it is killing with express or implied malice. In
the aforementioned case the burglar attacking the house-holder to prevent recognition,
with the intention to cause grievous bodily harm, would be considered guilty both before
and after the ‘57 Act. Thus, affirming the trial judge Hinchcliffe J’s direction and dismissing
the appeal in favour of the doctrine of implied malice.

It is essential to understand the Court’s judgment in Vickers is premised on the analysis of

implied malice being a separate category of intention than constructive malice. J.W.C
Turner34 has argued that such is a misunderstanding of where the doctrine has originated
from. He claims since s.18 of OAPA 186135 constitutes grievous bodily harm with intent as a
felony it should be assumed that it was abolished by s 1(1)36 since it fell within the ambit of
felony-murder.

Lord Diplock in Hyam was critical of Vickers for more or less the same reason. He believed
mere foresight of grievous bodily harm was insufficient mens rea to grant a conviction for
murder. The roots of the doctrine according to his analysis could be traced back to Lord
Ellenborough’s Act of 180337 which made it a felony to do grievous bodily harm. He
admitted that while judges in the past were also willing to convict where the Defendant
intended to cause a harm less than death but their condition was that the defendant must
at least foresee his harm created a risk of death. Thus, with the advancements of medicine,
harm that might have once constituted as creating a risk of death might not be considered
to do so now.38

32 R v Vickers [1957] 2 QB 664

33 Smith and Hogan (n 6) 627
34 Ibid. 628

35 S 18 OAPA 1861

36 Wilson (n 1) 366

37 Smith and Hogan (n 6) 628

38 Ibid

11
One of the major criticisms of the doctrine of implied malice is its clear violation of the
correspondence principle. Barry Mitchell, a proponent of such a viewpoint, has argued on
the orthodox subjectivist approach for culpability with choice and belief being the
cornerstones for assigning responsibility. A distinction is drawn here between questions of
blame against questions of responsibility as the former is a more rudimentary approach
while the latter takes a more nuanced stance by including the element of moral autonomy
and exercising will-power to bring about a particular consequence.39 Therefore, the claim
any legal system makes to have authority over its subjects should be founded in adherence
to rule-of-law principles in its criminal law, by ‘ensuring fair warning, maximum certainty
of definition and subjective requirements for criminal liability’40.

There has however been a school of thought called as ‘moderate constructivism’ pioneered
by John Gardner who says that by changing one’s ‘normative position’41 we have willfully
exposed ourselves to be criminally liable for a more serious harm than was foreseen. The
arguments made by him were assessed critically by Ashworth42 who says that the Unlawful
Act Theory is used in the extension of criminal liability. If the moral and criminal threshold
is crossed by the defendant to harm another then by placing himself on the ‘wrong side’ of
the criminal law he must accept the label that signifies the harm caused. This of course
must be supplemented with a measure of proportionality to ensure there is not a great
‘moral distance’ between the harm intended and the harm for which the person is held
liable. This would justify an intention to cause grievous bodily harm as sufficient mens rea
for murder. Jeremy Horder is another vocal advocate against a strict interpretation of the
correspondence principle as he believes it undermines other fundamental elements of the
criminal law such as ‘take your victims as you find them’ and his debate with Mitchell gives
valuable insight into the law.

However, in the midst of all the academic debate it is key not to forget how judges perceive
the matter and what is the current stance of the law on it. Lord Hailsham LC and Viscount
Dilhorne disagreed with Lord Diplock and Kilbrandon in Hyam and said Vickers had been
rightly decided. As per Lord Mustill the argument of implied malice being abolished was
‘dismissed out of hand’43 in Vickers. The House of Lords case of Cunningham44 furthermore
went onto confirm that Vickers was rightly decided. Lord Hailsham addressed the appeal
that was raised on the basis of the speeches of the dissenting Lords in Hyam. He stated that
Lord Diplock had misunderstood the origins of the doctrine and pointed to there being no

39 Barry Mitchell, 'The Minimum Culpability For Criminal Homicide' [2001] 9(3) European Journal of
Crime 13
40 Andrew Ashworth, 'A Change Of Normative Position' [2008] 11(2) New Criminal Law Review 237

41 John Gardner, ‘Rationality and the Rule of Law in Offences against the Person’ [1994] 53 C.L.J. 502

42 Ashworth (n 40) 233

43 Smith and Hogan (n 6) 628

44 R v Cunningham [1982] AC 566

12
historical discontinuity before and after the Act of 180345 nor there being any citation to it
in case law, as reasons for his conclusion.

This does not mean the doctrine of implied malice is free from any criticism. Lord Goff had
conceded the law was settled but ‘only for the time being’46 and Lord Mustill called the law
on murder a ‘conspicuous anomaly’47. Even Lord Edmund-Davies who did not dissent in
Cunningham gave his ‘support with reluctance’48. Perhaps the most vocal against such a
doctrine has been Lord Steyn who said with vehemence in Powells and Daniels49 and later
Woollin that ‘a defendant may be convicted of murder who is no ordinary sense a
murderer’50. I believe that given the recent debate surrounding oblique intention and how
on an intersectionality of the two concepts of oblique intention and implied malice it is
possible if one foresees with virtual certainty that their actions would result in grievous
bodily harm (despite possibly not wishing them to) to be adequate grounds for murder the
law is far from clear on the matter and needs revisiting. Possible reforms will be considered
in the following chapters.

The Contentious Case of Oblique Intention and the Development of the

Modern Day Test for it

Ever since the enactment of the’57 Act it was the opinion of the courts that murder could
be done with an intention to kill (express malice) or cause grievous bodily harm (implied
malice). However, a further sub-species of intention called direct and indirect intention has
muddled the waters in recent years. Direct intention has been defined by Ashworth who
says ‘The core of “intention” is surely aim, objective, or purpose; whatever else “intention”
may mean, a person surely acts with intention to kill if killing is the aim, objective, or
purpose of the conduct that causes death.’51 This might be a good starting point to build
from when it comes to understanding the breadth of the concept of intention. The case of
Mohan52 further went onto elaborate on this by excluding desire from the definition
‘insofar as the acts committed were within the accused’s power’53. Before delving into the
case law it is essential to reiterate that there is no such requirement of premeditation in

45 Lord Ellenborough’s Act of 1803

46 Lord Goff, 'The Mental Element in the Crime of Murder' [1998] 104 Law Quarterly Review 30
47 A-G Ref No. 3 OF 1994 [ 1997 ] 3 All ER 936

48 He was of the opinion that Parliament should intervene and amend the law

49 R v Powell [1997]

50 Lord Steyn made the claim in his judgment

51
Andrew Ashworth, Principles of Criminal Law (6th edition, Oxford University Press 2009) 171
52 Mohan [1976] QB 1; [1975] 2 All ER 193

53 Gerard Coffey, 'Codifying the Meaning of ‘Intention’ in the Criminal Law' [2009] 73(5) The Journal of

Criminal Law 397

13
English Law and having the specified intention at the time of the crime is all that will be of
material importance.

The cases of Smith and Hyam have been discussed earlier and now the decisions reached in
them will be juxtaposed with those of cases that followed. Moloney54 is one such peculiar
example of how the House of Lords had to redefine the term oblique intention and address
the question of the direction lower courts were to give to juries.

Lord Bridge gave the leading judgment and the rest of their Lordships agreed with his
analysis. Starting off by considering the validity of Smith v DPP and later Hyam, in that they
required the offence to be ‘aimed at’ someone for it to be intended , the court rejected such
a test. Lord Bridge admitted that whilst it is necessary to differentiate intention from
motive before the jury, trial judge Stephen Brown J was wrong in defining intention by
using words synonymous to it. Intention should be left to the ‘good sense of the jury’ in that
they take the word to mean what it would in the ordinary usage of language.

Then the pertinent question of whether foresight of an event occurring beyond a certain
probability would be an alternative or equivalent to intention was considered. It was
categorically answered in the negative. The knowledge of such probability was to be
merely taken as a rule of evidence and not one of substance as the case of Smith made it
into. The origins of such a rule were traced back to the maxim of ‘a man is presumed to
intend the natural and probable consequences of his acts’. Lord Bridge considered the word
probable to be subsumed within natural so his formulation of the test for oblique intention
was based on the maxim minus the word probable. He drew further legitimacy from Lord
Goddard’s speech in Steane55 and thus concluded that foreseeing consequences as natural
set up a rebuttable presumption and the jury would have to decide based on all the
evidence.

The ‘natural consequence’ test of Moloney was questioned before the House of Lords just a
year later in Hancock and Shankland. This case is a classic example of jury inequity as they
convicted at first instance mistaking the phrase ‘natural consequence’ as a causal
requirement as opposed to one of high probability. The trial judge Mann J’s direction was
correct in that it precisely stated the Moloney guidelines however the Court of Appeal
overturned the conviction on grounds of the test being ‘unsafe and misleading’56.

54 R v Moloney [1985] AC 905 House of Lords

55 Smith and Hogan (n 6) 122
56 Ibid 125

14
The House of Lords judgment, delivered by Lord Scarman, acknowledged that Lord Bridge
used the phrase ‘natural consequence’ as meaning the probability to be ‘little short of
overwhelming’ and thus it was not a digression from but rather an elaboration of his
analysis to include a degree of probability into the model direction. The word ‘probable’
was taken not to be otiose, as Lord Bridge claimed, since despite being used with natural it
aided the jury. Therefore the law was, it could be said, returned back to what it was in
Hyam in essence, since ‘high probability’ and ‘probability little short of overwhelming’ are
not distinguishable in a legal sense.

The case of Nedrick57 was similar in facts to the case of Hyam thus it gave the court an
opportunity to display how the law had progressed since Hyam. The trial judgment was
given before the ruling of Moloney and the defendant was convicted. The Court of Criminal
Appeal, under Lord Lane, attempting to clarify the direction given by the lower courts took
into account the criticism of Lord Scarman of ‘natural consequence’ and replaced that with
the ‘virtual certainty’ test.

Applying this new test meant the defendant was not guilty and thus the courts were able to
manipulate legal jargon into serving their purpose once more by beating around the bush
of what intention is not rather than actually speaking about what intention is. The
outcomes in Hyam and Nedrick might have been different but the state of the law was very
much the same.

After a period of nearly 12 years came the case of Woollin58. Many of the proponents of the
‘virtual certainty’ test pointed to this fact as a success of the Court to formulate clear
guidelines however the scenario in Woollin highlighted the deficiencies of the test and its
need for further amendment. The case was one of oblique intention to cause grievous
bodily harm being sufficient for a murder conviction and therefore the Law Lords had to
consider all the previous case law on implied malice and indirect intention.

The leading judgment was given by Lord Steyn who had to tackle the direct attack by the
Crown on the validity of Nedrick; claiming it violated s.8 (b) of CJA 1967 by not allowing
the jury to consider all the evidence. Lord Steyn however dispelled off such a claim by
referring to the last line of the judgment in Nedrick and stating Nedrick merely laid down a
test for what state of mind in the absence of direct intention would constitute as sufficient
for murder. The second claim of Nedrick going against Hancock was also negated as
nowhere in Hancock was it stated that appellant courts could not formulate guidelines for
the assistance of the lower courts.

57 R v Nedrick [1986] 1 WLR 1025 Court of Appeal

58 R v Woollin [1999] AC 82 House of Lords

15
Lord Steyn therefore concluded Nedrick was sound law and it was further established that
the trial judge had the discretion of when to give the ‘virtual certainty’ test direction based
on the facts. However, some modification to the model direction was needed. Paragraph A
of it was cut out as it caused unnecessary confusion59, the first sentence of paragraph C was
omitted as it was superfluous but the most crucial change was in paragraph B where the
words ‘may infer’ were changed to ‘may find’.60 Such a change was not merely one of
semantics but rather a restatement of the test for oblique intention being one of evidence
and not belonging to substantive law.

Amidst all these changes the broader question was still left unanswered. The question was
whether the court has defined intention as a matter of law or merely provided guidance on
what was sufficient evidence from which to infer/find intention? The indiscernible line
between interchangeable words the court has been drawing upon to reiterate that
foresight is not equivalent to intention is being somewhat negated in their own judgments.
As we will see in the following chapter how this argument is raised again by counsel in
Matthews and Alleyne61, highlighting how the court has still not dealt with the matter
comprehensively.

On that rather uncertain predicament of the law I conclude my first chapter. The reasons
for ending it here are to showcase how, up to the 21st century, the common law was
deficient in defining one of the fundamental states of mind. Despite multiple requests,
Parliament, not taking substantial steps to intervene showcased the matter to be more
deep-seeded than initially thought to be.62 Since the current chapter has brought to light
how the law came to be the way it is by focusing on primary research of case law and
statutes the following chapter will be more leaning towards secondary sources of academia
the explain the underlying theories of why the state of the law has taken a certain form in
England and Wales.

59 Ibid [Lord Hope]

60 Smith and Hogan (n 6) 129
61 R v Matthews and Alleyne [2003]

62 Wilson (n 1) 373

16
Chapter Two Introduction

The following chapter will critically analyze the competing theories that have influenced
the decisions of judges and law-makers alike. The lacuna in the meaning of intention in the
ordinary sense and the legal sense will be explored as well as the contention of motive
being used to bridge the gap. Criticism of the current law in light of representative labeling
and the rule of law will be considered. The research in this chapter will be primarily
focused on secondary sources of academic debates and case law or legislation will be used
to supplement those arguments.

The Determinant of Culpability - Judge or Jury?

For the purposes of continuity the first article that I will include is that of A. Norrie, “After
Woollin”63. In his work the author alleges that whilst Hyam has been overruled its spirit has
still skulked outside the reasoning given in cases involving oblique intention. Lord Bridge
tried to distinguish between recklessness and indirect intention by claiming ‘to intend and
foresee connote two different states of mind’64. This resulted in the ambiguity of a certain
gap originating between the finding of knowledge of moral certainty and a finding of
indirect intention.

Professor Smith has advocated against such a position as taken in Woollin and the counsel
for the Crown in Matthews and Alleyne used this argument to advocate for a move towards
a rule of substance. The argument hinges on the statement of Lord Steyn in Nedrick, ‘A
result foreseen as virtually certain is an intended result’ and Lord Lane’s debate in the
House of Lord’s Select Committee on Murder, which supported clause 18(b)65 of the Draft
Code Law Consultation No.177(1989).

The state of the current law by framing the model direction in the negative, i.e. ‘not entitled
to find unless’ and using the words ‘may find’ gives the jury the ‘moral elbow-room’ to
convict or acquit. However the question must be asked, if they are exercising their
discretion based on all the facts then are they not taking into account the purpose of the
defendant, something which the law is vehemently against. The ‘ineffable, indefinable,

63 Alan Norrie, 'After Woollin' [1999] Criminal Law Review 532

64 Smith and Hogan (n 6) 121
65 A person acts intentionally with respect to a result when he acts either in order to bring it about or being

aware that it will occur in the ordinary course of events

17
notion of intent, locked in the breasts of the jurors’66 is surely a failure of the legal system
to ensure standardization in conviction for the same crimes.

On the role juries play in a criminal trial there have been conflicting opinions of authors.
Some like Lacey believe they are merely a red herring to distract one from the reality that
the criminal law is a set of meanings imposed upon us by a hierarchical body of power.
Others like Horder are not so pessimistic and believe juries practice the ‘subtle legitimating
effect’ by virtue of them being representatives of society. He argues that ‘a direction on the
law's understanding of intention is meant to be a guiding beacon, and not a dazzling
headlight’67 and the juries are not coerced to succumb to any beliefs rather just focus on the
right questions.

Therefore, despite reductive skeptics doubting the inclusiveness of the Criminal Justice
System I am inclined to be for the idea that juries do have a say in convictions. Whether
they base that on a legal framework or a moral judgment is something that will be
considered further in this chapter.

Recklessness and Intention - Is There an Overlap or Are They Mutually

Exclusive

It is considered that the prime difference between intention and recklessness is that of
culpability. Although both belong to the class of subjective states of mind, in the former the
subject is aware of the outcome and acting to cause it while in the latter he/she is
committing a ‘vice’ unreasonably.68 Thus, according to Gardner to put them in the same
category would be an error in understanding.

Many in the past however have considered them to be of the same species of mens rea.
Lord Denning in his principal thesis argued for a broader meaning of intention which
would include recklessness unless a statutory provision specified otherwise.69 However,
even he found it difficult to defend his viewpoint in a case like Steane where he thought one
cannot be thought of ‘intending to assist the enemy’ unless he had the aim or desire to do
so.

66 Smith and Hogan (n 6) 131

67 Jeremy Horder, 'Intention in the Criminal Law - A Rejoinder' [c1995] 58(5) The Modern Law Review 689
68 John Gardner, 'Making Sense of Mens Rea: Antony Duff's Account' [1991] 11 Oxford Journal of Legal

Studies 574
69 Smith and Hogan (n 6) 136

18
Anthony Duff raised the piercing question of why mere foresight of a virtual certainty of
grievous bodily harm was sufficient to convict for murder but the case of the reckless
driver is not. The latter is surely exposing people to a substantial risk of death but his case
is treated as that of manslaughter. He differentiates between the two by the concept of
‘intended and intentional agency’. In the first instance it was intended to put the victims life
at risk as a necessary concomitant to the defendant’s actions and not doing so would have
made the defendant feel like a failure. In the case of reckless driving however it is very rare
that the driver intends to put the pedestrian at risk to incite fear and that his actions are
structured around threatening another’s physical security. Therefore, despite ‘exposing
him to that risk intentionally, [the defendant] does not act with the intention of exposing
him to it’70.

It is therefore my understanding that recklessness does not have a place in the law of
homicide unless it is of a nature that the accused intended to threaten another’s physical
security. The argument revolving around Value-deficit indifference71 in particular, states
that a subjectively reckless killer might have an objectively higher probability of killing
someone than they anticipated whilst a person who is a bad shot and aims to shoot
someone at a distance with an intention to kill might have a lower objective probability so
then why only convict the latter of murder.

A line nevertheless needs to be drawn between ordinary recklessness and ‘wicked

recklessness’72. The concept advocated by Lord Goff, though rejected by the House of Lords
Committee has its merits in Scotland. It is also interesting to note how English law has
incorporated indifference in other crimes against persons belonging to the substantive
criminal law, namely reckless rape and indecent assault so at present one does not see any
plausible reason to exclude such a definition for murder. After all it would even account for
the much debated hypothetical terrorist or strategic bomber and since the law reform
commission is in favour of convicting them as murderers73 it might be well-suited to revisit
this concept.

The Rationale behind Conviction and Representative Labeling

The current law of homicide revolves around arguments of sanctity of life, difficulty in
overcoming the evidential burden and to act as a social deterrent. However, there have

70 David Dolinko, 'Intention, Agency and Criminal Liability R.A Duff' [1991] 102(1) Ethics 173
71 Mitchell ( n 39 ) 208- value deficit means that the defendant would not have altered his/her behaviour even
with advance knowledge of the outcome and thus bears the same moral blame as the intentional killer
72 Glenys William, 'Inferring Intention' [2004] 55 Northern Ireland Legal Quarterly 69-70

73 Smith and Hogan (n 6) 632

19
been continuous holes poked even in these ideals and the means used to aspire to them.
The general idea that crimes against persons are more serious than crimes against
property can be echoed through the harm principle.74 The principle dictates there must be
a combination of culpability and consequence in order to convict under the criminal law.
However culpability must not be confused with objective moral wrongdoing. One might be
culpable for an act that is malum prohibitum despite it not promoting bad consequences,
like the argument for euthanasia. Therefore, it is advised to consider both ordinal
proportionality (result in similar cases) and cardinal proportionality (objective gravity of
the offense) when determining one’s guilt before the law.75

Overcoming the evidential burden has proved to be a tough job for the prosecution since
they need to prove both the actus reus and the mens rea beyond reasonable doubt as
established in Woolmington(1935). The system has over the years aimed to make their job
easier through mechanisms such as the doctrine of implied malice and the Woollin
direction which was to be given in exceptional circumstances, confirmed in MvD (2004).
Thus, it is no surprise that in some jurisdictions a manslaughter conviction is viewed as a
consolation prize for the prosecution if they fail to establish a case for murder. It is
essential however to note the rampant criticism of such an approach diminishing the
burden of proof on the prosecution and thus being a violation of the defendants
presumption of innocence under Article 6(2) of the European Convention of Human Rights.

Conviction and punishment being used as a preventative measure does not seem too
onerous a belief. It is essential however not to sacrifice an unfortunate few on the altar of
justice just to set an example for the rest. Thus, representative labeling plays an important
role for two reasons- description and differentiation.76 The term ‘fair labeling’77 was
introduced by Glanville Williams who thought the word ‘representative’ was misleading.
Ashworth notes that according to this principle ‘offences are subdivided and labeled so as
to represent fairly the nature and magnitude of the law-breaking’78. Since judges in England
and Wales are statutorily bound to take into account convicted persons previous criminal
history it is even more imperative that the label is accurate.

No doubt in recent years with the Law Reform Commission in 2006 suggesting the three-
tier breakdown of murder, it shows that the trend is steadily moving towards a more
descriptive approach. The categorization of people killing under provocation or diminished

74 Dennis Baker, 'Constitutionalizing the Harm Principle' [2008] 27(2) Criminal Justice Ethics 4
75 Ibid 21
76 James Chalmers and Fiona Leverick, 'Fair Labelling in Criminal Law' [2008] 71(2) The Modern Law Review

217
77 Ibid 219

78 Ibid

20
responsibility as second-degree murderers as opposed to manslaughter was
overwhelmingly welcomed by victim’s families.79

However, conviction must not only be fair to society but also fair to the victim and thus it is
necessary that the two different groups, viz, the judiciary and the public, both get an
accurate idea of the crime committed. The way of doing this would be to ensure the former
gets a differentiated label while the latter gets a descriptive one. This way a man who kills
another to save him from pain as in Inglis [2011] or through implied malice as in Stringer
[2008] will not be viewed as heinously as one who kills another in cold-blood.

The Historical Disquiet of Oblique Intention and Its Violation of the Rule
of Law

The concept of intention has far too often been left to the jurist’s imagination and not dealt
with solemnly enough by Parliament. This, as discussed earlier, has led to nebulous
concepts that have been a product of the common law, such as implied malice and
moreover oblique intention. Whilst there may be arguments to persist with these doctrines
they are nevertheless in need of refinement if they are to be consistent with other
fundamentals of the criminal law.

The formulation of the oblique intention test is a rather straightforward one (virtual
certainty test) and so is the rationale behind it. It is said that a person who chooses to cause
a result certainly intends it (direct intention) and a person who foresees as a virtual
certainty that his actions will cause a result also chooses to cause it (oblique intention).
Since there is an increase in moral culpability proportional to an increase in probability of
the end result, there is taken to be no material difference in the culpability of the two in the
eyes of the law.80

The black and white simplicity of such an analysis is much of the reason behind its
complication from a philosophical standpoint. The cumbrous situation of one whose aim,
purpose and desire is to bring about a certain outcome is being equated to one who did not
but rather merely saw it as a side-effect to his ulterior motive. As earlier stated, value-
deficit indifference is different from knowledge-deficit indifference and thus a person who
would have changed his course of conduct had he known the end-result should not as per

79 Ibid 238
80 William ( n 72) 71

21
common sense be deemed guilty. If such was the law, cases like Woollin would have been
far more straightforward.

The Law Commission was initially of the opinion that desire should have no outcome on
the state of affairs (1989) but after criticism by Sir John Smith over the logical
inconsistencies of such a deduction the Commission amended its proposal in 1993. Such a
change was similar to what Duff argued for as well. Saying a person intended something
they were clearly trying to avoid would be odious to say the least but although this seems
to acquit the father who throws his child out of the window during a fire it does not come
without its own plethora of problems.

The notable academic Kugler gives compelling examples to doubt such a reform in the law
being an accurate measure of culpability. His arguments against such a proposal are
summarized as; anyway the definition of oblique intention is inherently convergent but not
parallel to the ordinary meaning of intending something, then why is there a reluctance to
extend it to cases where there was no intention in the ordinary sense of the word - there
are also numerous instances where legal definitions have differed from the generic
definitions so to claim a contradiction there is nothing more than a semantic argument.

One obvious concern about such comments would be that Lord Bridge in Moloney wanted
intention to be left to the ‘ordinary, everyday meaning of the word’ as per the jurors and he
differentiated it from motive using his passenger example. In the example, it is contended,
he proceeds to contradict himself by implying one would think boarding a plan to go to
Manchester and appreciating the moral certainty of the outcome is the same as intending it.
Duff suggests, according to the ordinary meaning taken of intention, a man should only be
deemed to intend actions he acts to bring about and Gardner and Jung agree with his
analysis. A purely cognitive state, in his opinion, is insufficient to ascribe intention.

The ‘golden rule’ of Moloney and the paradoxical foundations it has laid down has created a
lacuna through which the legal system can circumvent the requirement of motive being
irrelevant to intention. Such a digression under the garb of legal jargon is a violation of the
Rule of Law.81 It has not only led to an ever-growing list of contradictory case law based on
individual judges notions of justice but also been an abhorrent infringement of their right
to a fair trial.

81Benjamin Xie, 'Utterly at Odds: Criminal Intention, Motive, and the Rule of Law' [2014] 80 Oxford Union
Undergraduate Law Journal 80-82

22
Chapter Two Conclusion

Thus, it has been established that the current state of the law with regards to the internal
element of homicide is in shambles not just in relation to the perpetrator but the victims as
well in terms of fair labeling. The merits of various criticisms has been talked about and
other principles intertwined with the mens rea have been debated at length to show it is
not a recent debate but one which has continued on for decades. It is unfortunate that there
is still much I cannot cover due to the obvious limitations of the scope of my dissertation
such as the difference in mental elements of the actual crime and the attempt of that
crime.82 Now that I have established the law in terms of what it is and why it is argued to be
that way or another, I will move on to my next stage of considering the law in other
jurisdictions to draw certain comparisons and suggest any possible reforms that might be
practically workable in England and Wales.

82Jeremy Horder, 'Varieties of Intention, Criminal Attempts and Endangerment' [1994] 14(3) Legal
Studies 340

23
Chapter Three Introduction

This Chapter will be intrinsically linked to the barrage of criticisms hurled at the law in
Chapter Two as it will aim to purport some plausible amendments to counteract those
lambasting assessments from academics and judges alike.83 Mere sophistry will be
distinguished from practically workable reforms and examples from other jurisdictions and
case law will be used to some extent to determine that. It will be followed by a conclusion
of what I have come to believe about my research question and how far my initial
hypothesis of the law of intention being an obstruction to justice was accurate.

Explicitly Acknowledge Motive as a Legal Principle

Since the previous chapter ended on concerns of motive being latently used to ascertain the
presence of oblique intention it is only fair to address that point first. The attack on the
current law here is not that that it is merely ambiguous but rather that it is hypocritical and
people are being retrospectively judged on their guilt. Motive is already playing a
substantial role in criminal proceedings be it in sentencing, jury nullification, executive
clemency, prosecutorial discretion or as evidence to prove intention.84
The introduction of an ‘utterly at odds’ test85 would be a helpful guide to exonerate the
morally deserving. The test would be different from Duff’s test, spoken about and critiqued
earlier, as it would be possible to possess a motive utterly at odds with the intention
without working to specifically avoid that intention, as in the case of Steane.
Opponents who might argue that motive is an abstract state of mind that would be
impossible to determine with certainty need only be referred to intention providing similar
problems. Thus, if it is the prosecutions job to prove intention beyond reasonable doubt the
onus should be on the defendant to come up with evidence on a balance of probabilities of
his good motive to convince the jury of his innocence. Such a measure might still leave the
door ajar for ingenious legal arguments but surely it must be preferred over hypocritical
rigidity. Even the recent Law Commission Reforms (2006) seemed to be inclined towards
such a move.
Another hindrance before changing the law on intention is that it might have substantial
effects on other controversial areas such as euthanasia. To address such an argument one
might refer to the rather misunderstood doctrine of double effect. Ward LJ in ReA86 holding
that the doctrine could not benefit the doctors since the action must be to produce a good
83 Smith and Hogan (n 6) 613
84 Xie ( n 81 ) 87
85 Ibid 89

86 Re A (conjoined twins) [2001] 2 WLR 480

24
effect and the bad effect is then morally permissible must be understood in light of the facts
of the case; since here the action is the killing of one twin it cannot be claimed to be good.
The doctrine however does not justify killing (even if it is one man’s life for a thousand) but
rather allows the weighing up of consequences if the bad effects are not intended but
merely foreseen. On such a reading one can say that cases such as the hypothetical father
throwing his son from the window of a fire-laden building or the doctor using high doses of
drugs to alleviate pain might rightly be acquitted of murder.
The static nature of the law regarding motive is doing it more harm than good. It is a
tradition amongst English judges to cite decisions without considering the criticisms
surrounding them87 and such is the case with keeping intention and motive as two
mutually exclusive terms. As far as medical cases go the US Supreme Court has also
accepted in Vacco v Quill (1997) the malleability of intention that is entwined with good
motive and it is high time for the English Courts to respond to changing social opinions as
well- As per ‘The Times, 24 January 2007’ report that said 80 percent of people in UK were
for euthanasia to be legalized.

Development of Defences

Since the previous section deals with a substantive change in the law it is essential to
consider the proposition of leaving the definition of intention as it is but forming a better
framework of defences so that judges don’t have to stretch the law beyond its permissible
ambit as Lord Goddard did by including the term innocent intention in Steane.

One such case where the defence of necessity was considered was re A and the judges after
some hesitance and through different reasoning eventually accepted it. A more
adventurous approach was promulgated in the Draft Criminal Law Bill of 199388 which
allowed the defence of duress of circumstances for all crimes including murder. However it
would be up to the defendant to establish it on a balance of probabilities before a jury. With
the current climate of terrorism on the rise one must consider the hypothetical example of
a person coming across a terrorist in a hotel room about to blow up an adjacent market-
place nearby and there is not enough time to call the authorities. If such a person proceeds
to stop the terrorist and ends up killing him surely they should not be left to the mercy of
prosecutorial discretion. The oblique intention direction would probably not apply since he
intended to kill and self-defence would not be appropriate since his own life was not in
danger. Therefore, I believe the judiciary should provide room for such moral altruism in
legal proceedings.
87 Williams ( n 24)
88 Law Commission (No.218) cl.26

25
Modification of the Model Direction for Oblique Intention

The moral-elbow room accorded to juries has been established as an inherently biased
measure since jury inequity is not an uncommon occurrence. This is akin to Selden’s
famous criticism of ‘equity varying like the Chancellor’s foot’89. To avoid such a state of
affairs one can simply give a clearer judicial direction as to what constitutes intention in
different scenarios and then make it a rule of substantive law, something which Professor
Smith has rallied quite ardently argue for. Lord Fraser attempted to do so in Gillick90 and
his is a fine example of what is being advocated for in this work.

One interesting way of framing the direction for oblique intention whilst staying true to
Lord Moloney’s rule of using words in their ordinary usage of language would be to ask the
jury whether the defendant ‘consented’ to the outcome which he/she achieved. That way if
an event(p) occurs and another(q) is an ‘inevitable adjunct’ of bringing about p then
intention could be distributive. This concept by Chisholm was termed as the ‘diffusiveness
of intention’.

However, Duff is rather skeptical of such an approach as he still believes taking one to
intend an outcome he ‘acts despite of’ is not a fair assessment of the law- Since that reason
was not just a side-effect the defendant was choosing to ignore but rather the very reason
against his behavior. So to say a father threw his son out of a burning building should not
say a father viewed death as a conjunctive of him throwing out his son yet he still continued
regardless. Rather it should be said that he threw his son out of the building to specifically
avoid him from dying. Such an approach resonates with one’s common sense as well.

A rather adventurous approach was taken by Horder when tackling the tricky question of
what to do of a person whose moral culpability is the same of a murderer but the ‘outcome-
luck intrinsic to what he does’91 does not amount to virtual certainty. Hyam has been
overruled so high probability would now amount to reckless manslaughter and it has been
argued that since a judge has the sentencing discretion he may sanction a life-sentence if he
deems fit. The issue however is with the label attached and as earlier established in this
dissertation labels do matter to the victim’s family and the system. So the representative
label of ‘unlawful and deliberate endangerment’92 should suffice for one who has taken an
unreasonable risk without lawful cause as in Smith. This way a jury ought to know it was
not merely an accidental killing but a grossly reckless one.

89 Xie (n 81 ) 90
90 Gillick v West Norfolk & Wisbeck Area Health Authority [1986] AC 112 House of Lords
91 Horder ( n 82 )343

92 Ibid 344

26
Proposals to change the current Woollin direction have been considered in abundance and
proposed by the Law Commission themselves. Here a few alternate ones, given their
pragmatic application, were considered to be hopefully included in future proposals.

The Law of Homicide in other Civil Law and Common Law Jurisdictions

It is always helpful to take a broader perspective over what the law ought to be in its
pursuit of justice. I will therefore be making a reflective analysis of other legal jurisdictions
and their current law or proposed reforms on homicide. Comparative criminal law
according to Markus should be:

thought of as a spirit, an approach, an attitude, rather than as a formal discipline or even a

serious commitment to the exploration of the details of foreign criminal law.93

The United States’ opinion on euthanasia has been mentioned above and now we will look
closely at their gradation of murder. The description of the offence is contained in Section
1111 of the Crimes and Criminal Procedure document of the American Penal Code. On first
glance only it is clear how the structure of the offence is markedly different from its UK
counterpart. There have been a certain number of base crimes which have been identified
that can lead to a finding in murder meaning the felony-murder that is so abhorred in the
UK is still intact. Instead of the miscellaneous term of manslaughter, all killings fall under
first or second degree murder. While each state in the US has its own convoluted system
there is a commonality between them in that they are incredibly detailed. The main point
hence to be derived from the US system is clarity. While some may argue such clarity is the
birthplace of rigidity and the UK system has flexibility there is no question in saying such
flexibility has come at all too high a cost.

In Germany, a civil law jurisdiction whose law has impacted many other European
countries, intention is denoted not only by knowledge or desire rather by recklessness as
well. This concept of recklessness being a part of intention is understood as dolus eventualis
in Germany and on a historical analysis it was found to consist of a cognitive element and a
volitional or dispositional element.94 The dispositional element is the one currently not
part of UK law by virtue of it being a murky area of psychology. However one might argue

93 Markus Dubber, 'Criminal Law in Comparative Context' [2006] 56(3) Association of American Law
Schools 437
94 Greg Taylor, 'Concepts of Intention in German Criminal Law' [2004] 24(1) Oxford Journal of Legal

Studies 123-127

27
that considering the intrinsic motivations of the actor that compelled him to act a certain
way might only aid us in better understanding intention.

The state of the law north of the River Tweed in Scotland is quite different with its
adaptation of the concept of ‘wicked recklessness’95. Lord Goff due to its success pushed for
it to be included in UK Law as well but the Law Commission rejected his argument in 1989.
Nevertheless, ‘indifference’ has been adopted as a mental element for other bodily crimes
such as reckless rape and indecent assault so it begs to ask the question of why the courts
are so hesitant to do so in murder.

In the State of India, Article 300 of the Indian Penal Code lays down the guidelines for
murder. Section 300(4) is the one I will take into consideration since it is a very slight yet
material change to the law in UK. In England and Wales one commits murder by killing
another with malice aforethought without having a lawful excuse. The term excuse has
been hard to establish since defences for murder are mostly limited to self-defence only. In
India however it is said the guilty must act "without excuse for incurring the risk" of
causing death. This provision exonerates the merciful doctor trying to alleviate the pain of
his patient by giving him an overdose of drugs or the passionate father trying to save his
child from the fire and thus in my opinion it is a subtle yet significant change to the law.

The following illustrations of law have not been necessarily posited as improvements by
virtue of them being foreign. Surely, it would be ignorant to assume these jurisdictions
don’t face their own troubles with the formulation of the law. They have been considered
ergo to promote the exchange of ideas in a spirit of ‘mutual curiosity’96.

Chapter Three Conclusion

At this stage of my studies my inclination is more towards analyzing the merits and
workability of existing reform suggestions as opposed to coming up with new ones. The
primacy in reform suggestions has been given to those which would intrinsically change
the system as opposed to more mundane options such as the judge having discretion to
impose a life-sentence on a manslaughter conviction. The distinction between murder and
manslaughter is not merely an arbitrary sentencing issue but rather one which strikes at
the heart of criminal law. Trials need not be reduced to mere instruments but rather
viewed as holistic determinants of one’s guilt and punishment.97 The discrepancy in the law

95 See n 72
96 Dubber ( n 93) 443
97 Victor Tadros, 'The Homicide Ladder' [2006] 69(4) The Modern Law Review 602-608

28
of offences against persons is not merely restricted to murder but rather to other
categories of bodily harm as well98 which is all the more reason for English judges to come
out of their parochial exceptionalism and ‘put their heads above the parapet’ , as Lord Steyn
suggested, to institute change.

Dissertation Conclusion

This dissertation has taken me from various epochs to numerous jurisdictions in my

research. Although I acknowledge my analysis has not been as thorough as I envisaged, I do
expect that I have raised some valid concerns and brought to light the inconsistencies of
the current law. Initially, my hypothesis of the notion of intention in homicide being an
anachronism of modern day values has been somewhat confirmed by the amount of
literature I came across in favour of judicial or parliamentary reform. It is common
knowledge the mandatory life-sentence is a staple of the murder conviction and unless the
UK legal system is willing to go through groundbreaking reforms like punitive restoration99
they need to take incremental steps to ensure the law does not become an obstruction to
justice.

Nevertheless, over the course of my research I had to trace the genesis of the law and that
exposed to me to the reasons behind its current formulation. Those reasons were not
completely fallacious in most cases and had the backing of esteemed judges and academics
alike. However, with the sheer magnitude of conflict that the law has managed to cause, one
is forced to consider not whether the current law is right or wrong but whether it is the
best way of looking at homicide. As Dworkin has said, there might always be a superior
socio-legal principle that has not yet been argued and our understanding of law might be
incomplete100. With that argumentative attitude in mind only I sought to write this
dissertation. My main contention was not to argue for one particular opinion over the other
but rather to argue for a general element of clarity within the law so it might abide with
fundamental rights and serve its true purpose of being a prospective guideline for human
behavior. On that note I would conclude that the initial question I asked, of whether the
mens rea of murder was defensible, is to be answered in the negative. The matter needs to
finally be taken out of the long-grass by the legislature and addressed as a matter of utmost
importance.

98 Smith and Hogan (n 6) 630

99 Thom Brooks, 'Punitive Restoration and Restorative Justice' [2017] 36(2) Criminal Justice Ethics 122-125
100 Guest and others, Jurisprudence and Legal Theory (University of London c2004) 146

29
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