Essay Plan: "How does the criminal law define murder? Is their definition satisfactory?"

Essay Plan: "How does the criminal law define murder? Is their definition satisfactory?"

Paragraph 1: Definition of Murder

• Focus: Outline the legal definition of murder, including the actus reus (AR) and mens rea (MR).

◦ Actus Reus: Unlawful killing of another person in the King’s peace.

◦ Mens Rea: Intention to kill or cause grievous bodily harm (GBH).

◦ Distinction: Differentiate between murder and manslaughter as general homicide offences.

Paragraph 2: Satisfactory Nature of GBH as Fault Element

• Focus: Evaluate whether the inclusion of GBH as part of the mens rea for murder is satisfactory.

◦ Issue of Over-breadth: The fault element (intention to cause GBH) is too broad.

◦ Case Law:

▪ R v Vickers: GBH sufficient for murder.

▪ R v Cunningham: Clarification on the intention to cause serious harm.

▪ R v Bollom: GBH context-specific and subjective.

◦ Critique:

▪ Parliamentary Intention: Argument that Parliament did not intend for GBH to be a basis for murder.

▪ Fair Labelling: Problem with categorising serious harm as equivalent to intent to kill.

▪ Overlap with Manslaughter: Challenges in distinguishing between murder and manslaughter if GBH is included in both, leading to concerns about fair labelling and legal clarity.

Paragraph 3: Uncertain Definition of Intention

• Focus: Discuss the uncertain and evolving definition of indirect intention in murder cases.

◦ Development Over Time:

▪ DPP v Smith (1961): Indirect intention judged objectively.

▪ Hyam v DPP (1974): High probability of death suffices for intent, creating overlap with recklessness.

▪ R v Moloney (1985): Introduction of the two-stage test for indirect intention.

▪ R v Hancock and Shankland (1986): Introduction of probability as evidence for intention.

▪ R v Nedrick (1986): Development of the virtual certainty test.

▪ R v Woollin (1999): Confirmation of the virtual certainty test—jury can "find" intention.

◦ Critique:

▪ Uncertainty: The shift from one test to another shows a lack of a stable principle.

▪ Flexibility: While adaptability can be seen as a strength, it also leads to legal uncertainty.

▪ Evidentiary Nature: Virtual certainty test is evidentiary, not definitional, leaving room for unpredictability.

Paragraph 4: Other Reform Efforts

• Focus: Discuss attempts at reforming the murder offence and whether they address the identified issues.

◦ Single Homicide Offence:

▪ Critique: Absence of a clear fault element in a single homicide offence is problematic.

◦ Law Commission’s Three-Tier System:

▪ Proposal: Introduction of different degrees of murder.

▪ Criticism by Victor Tadros: Challenges to the practicality and fairness of a tiered approach.

◦ Aggravated Offences: Consideration of whether an aggravated offence might better capture the seriousness of certain killings without relying on GBH intent.

Conclusion

• Summary: Recap the issues with the current definition of murder, particularly the broad inclusion of GBH and the uncertainty surrounding indirect intention.

• Evaluation: The definition is unsatisfactory due to its over-broad fault element and the evolving, inconsistent interpretation of intention.

• Reform Suggestions: A more nuanced approach is needed, whether through a redefined mens rea for murder or a more structured approach like the Law Commission's tiered system, despite its critiques.

Sample Paragraph:

The uncertain definition of indirect intention for murder is unsatisfactory which can be demonstrated through tracing its development over time. It was first held in DPP v Smith 1961 that indirect intention should be judged objectively. This was soon reversed by statute by section eight of the Criminal Justice Act 1967 making it a subjective test. The Hyam 1974 case then held that if there was a high probability that the defendant’s act will lead to the victim’s death, we can find an intention and therefore murder. This has grave implications because it blurs the line between intention and recklessness. The House of Lords judgement only held by a narrow majority of 3:2 upholding the charge of murder highlighting how the court are uncertain about finding indirect intention. The Moloney 1985 case the court moved away from Hyam where Lord Bridge proposed a two stage test for finding indirect intention: did the defendant foresee the death as a natural consequence and was death/GBH a natural consequence? Lord Scarman, in Hancock and Shankland 1986, stated that the courts failure to consider probability in Moloney was misleading and it is also taking us back to Smith which parliament had repealed. Foreseeability and intention are different states of mind and should be kept separate. In Hancock, the court said they should consider the ‘probability of a consequence’ and that the higher the probability, the more likely they intended the offence. Here, foreseeability will be treated as evidence of intention. It was only until Nedrick 1986 which called for the virtual certainty test, later confirmed in Woolin 1999 by the House of Lords which states that the jury are entitled to ‘find’ indirect intention if there was a virtual certainty that their act would result in the victim’s death. It is important in that the test is not the definition of intention but rather provides evidence where the jury can find intention. Therefore, this is uncertain and unsatisfactory because it is flexible and can be subject to change based on the context of the case. Although the Woolin rule has not been overruled since, the fact that the virtual certainty test is merely evidentiary leaves the de lege ferenda in an uncertain place; therefore it is not satisfactory.