Formative Assessment

Criminal law Answer and Feedback

Indicative Classification: Third

STUDENT ANSWER
Murder was first defined by lord Cork as the ‘unlawful killing of a reasonable person with malice
aforethought’. Murder is a relatively complex offence. There are two elements involved in murder
namely actual reus and mens rea. We will first examine the actus reus of murder. Furthermore, we
will go ahead and critically analyse the mental or internal element of murder.
The actus reus of murder is rather simple, the unlawful killing of a reasonable person. The actus
reus of killing can be done by an act or omission and this must result to death. We look at the case
of Gibbins and proctor, the defendant starved his child and she died. This is an omission as he
failed to feed her which resulted to her death. Because murder is a resolute crime and there must
be a chain of causation. The two test for causation are in play. The ‘but for’ test with the support
case of R v White and the operating and substantial test supporting case of R v Smith.
The men’s rea of murder which is malice aforethought is simply a form of words. The mens rea for
murder is intention to kill ( express malice) or intention to cause grievous bodily harm (implied
malice) in R v Vickers, D was intended to cause grievous bodily harm to the victim and the victim
died as a result.
The test for direct intent in murder is rather simple. In the popular case of R v Mohan it was
decided that ‘a decision by the defendant to bring about so far as within his power, a particular
consequence’.
When looking at intention, it is important that the defendant has contemplated that an injury or
death will occur. The development of law on oblique intent started with the case of DDP v Smith-
D tried to resist arrest by driving off with policeman clinging to his car, the policeman died. D was
convicted of murder. The jury was directed on the basis of the objective ‘reasonable man’ test. The
case was heavily criticised and suggested that intention should be a subjective test which the
direction of the jury should focus more on what in D’s mind rather than what a reasonable person
thinks. Under section 8 of the criminal justice act which will be an important guide to the jury
when deciding upon the fact of a particular case, has led to the conclusion that mens rea for
murder should be a subjective test rather than objective. The case of Hyam it was established that
D pouring petrol through the mail box and setting it alight, which resulted to a death. It was held
that D knew that it was highly probable that this would cause (death) or serious bodily harm…
then the necessary intent for murder is established.
Furthermore, an illustration of intent can be seen in the case of R v Nedrick- D poured paraffin oil
through the letterbox, against whose owner he had a grudge. The house set alight and a child
died. The jury was directed to consider two questions where oblique intent is involved.

i. Was the victim’s death or grievous bodily harm virtually certain?

ii. Did the defendant realise that the victim’s death or grievous bodily harm was
virtually certain?

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If the answer to both is yes, then the jury is entitled to find intention. The case of R v Woolin is the
modern day authority that also support the test set out in Nedrick, the difference is in woolin the
word ‘find’ replaces ‘infer’.

Problems in understanding oblique intent in relation to foresight of consequence. Baffling cases

like woolin and the attempt by court to clarify the law like Nedrick and Maloney. It causes
uncertainty and it causes a lack of clarity in the law with the dissatisfaction of the law relating to
murder the law commission suggested that these should be a good enough reason why the law
on murder will be worth having a good look at again. The first disagreement is related to intention.
Us intention to cause GBH sufficient for murder? This applies to implied malice aforethought. The
disagreement is whether somebody should be guilty of murder when they don’t actually
deliberately go out to kill the victim, so if they going out to cause hard, be it a serious harm which
is covered by the non- fatal offences against the person and they end up killing them, then should
that be murder or manslaughter. It like somebody whose sort to cause serious hard but ends up
killing someone, basically has the same level of guilt as somebody who gone out to kill and
succeeded. Indeed this has been highly criticised and in the case of Cunningham, a critical of the
fact that a person was considered the same way as a someone who sort to kill.
The other major problem which the commission sort to look at is the mandatory life sentence. It is
highly unfair for a person who is merely sort to protect themselves or their loved ones receives the
same sentencing as a person who intended to kill. In the case if Martin who shot an alleged burglar
had a life sentence, eventually his case was changed by the court. The commission believed that in
those cases it not a particular sensible law, and having mandatory sentence for murder doesn’t
necessarily take into account the difference circumstances that murder cases often contains. So a
new reform was proposed, on the law of murder sentences. Where you will have a first degree
murder it will be for those who have intended to kill so express malice aforethought is present and
where defendant intended to do serious harm but resulted to death will come under second
degree murder.

STUDENT MARK: 48%

EXAMINER FEEDBACK
Strengths
The answer you present suggests you can present a reasonably coherent argument and you are
able to demonstrate some basic understanding of this area of criminal law. Your response
generates some general discussion about the principles of criminal law, and you are able to
explore the key principles, which emerge, from some of the cases often referred to. You provide an
introductory section on how criminal liability is constructed which is interesting, and you then go
through the model direction as presented by Nedrick (1986).

Areas for improvement

Overall this is a solid effort but the analysis needs to be much more detailed to lift the level of
analysis and subsequently the overall mark. You really need to construct your argument around
‘too broad and too narrow’ and there needs to be a clearer commitment to task from the outset. It
is always useful to commit to a line of argument at the beginning.

You also need to ensure Woollin (1999) is discussed in more detail. Given this is the last key case on
oblique intention. You mention the shift from ‘infer’ to ‘find’ but what does this mean in this
context? The resulting discussion tends to result in the reader asking ‘and so?’ at the end of each

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paragraph or ‘why is this paragraph relevant to task?’. A number of the concerns relate to the
mandatory life sentence for murder, which you do mention but be more specific about the
laddered approach, as recommended by the Law Commission in 2006, as this would arguably
resolve these problems although it is not without its criticisms. There is also a current concern
around the place for good motives as demonstrated by the case of Inglis (2010). It would also be
useful to look at the academic commentary in more detail here so you can show the concerns
around the current boundaries. It is also useful to read over your responses for stylistic errors
before submission.

Other comments
You are able to secure a solid pass mark because you do explore some of the key cases with
interest and your final paragraph offers some useful insight.The focus is not always as detailed or
integrated as it could be, and this inevitably means there are gaps of analysis. A tighter level of
planning should assist you moving forward. Also remember to not get distracted by random cases
(why discuss Martin here?). That said it was an interesting read.

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