Essay Plan: "The mental element for murder is currently too broad; but to confine it to an intent to kill would be to narrow it too far. Discuss."
Introduction
• Focus: The essay will evaluate the current breadth of the mental element (mens rea) for murder in English law, considering whether it is too broad and whether restricting it to an intent to kill would be too narrow.
• Thesis: While the current mens rea for murder, which includes an intent to cause grievous bodily harm (GBH), may be too broad, confining it solely to an intent to kill would overly restrict the scope of the offence, failing to account for the seriousness of certain harmful actions.
Paragraph 1: The Mental Element for Murder is Too Broad
• GBH as Sufficient Mens Rea:
◦ Case Law:
▪ R v Vickers (1957) and R v Cunningham (1982): Both cases established that an intention to cause GBH is sufficient for a murder conviction, even if the harm caused is not life-threatening.
▪ Expansion of GBH:
▪ R v Bollom (2003): Expanded the definition of GBH to include serious harm to vulnerable victims, further broadening the scope of murder.
◦ Issue of Fair Labelling:
▪ Critics argue that convicting someone of murder when they intended only serious harm (not death) undermines the principle of fair labelling, which aims to ensure that the label of the crime reflects the defendant's culpability.
◦ Sentencing Disparities:
▪ The broadness of the mens rea for murder can lead to unjust outcomes, such as a mandatory life sentence for someone who did not intend to kill. This may not align with the original intention of Parliament and can seem disproportionate.
▪ Suggestions for Reform:
▪ Some suggest that cases involving intent to cause GBH should be classified as manslaughter rather than murder. However, this could lead to under-punishment for serious crimes and exacerbate the issue of manslaughter already being an overly broad category.
Paragraph 2: Confined to Intent to Kill Would Be Too Narrow
• Indirect Intention and the Complexity of Mens Rea:
◦ Piecemeal Approaches:
▪ Case law has evolved to address the complexities of indirect intention.
▪ DPP v Smith (1961): Initially, foresight of death as a natural consequence was sufficient for a murder conviction.
▪ R v Hyam (1975): Foresight of a high probability of death was also considered sufficient.
▪ Movement Towards Intention:
▪ R v Moloney (1985): Shifted back, emphasising that intention should be more than mere foresight of consequences.
▪ R v Hancock & Shankland (1986) and R v Nedrick (1986): Refined the test to consider whether death was a virtual certainty and the defendant foresaw it as such, culminating in R v Woollin (1998).
◦ Moral Elbow Room:
▪ Horder’s concept of "moral elbow room" argues that the law should allow for a nuanced understanding of intention, recognising that the moral culpability of causing death can arise even without a direct intention to kill.
◦ Problem with Narrowing to Intent to Kill:
▪ Limiting murder to cases where there is an intent to kill would exclude situations where the defendant's actions are extremely reckless or involve a high degree of foresight of death, which are still morally and legally significant.
Paragraph 3: Law Commission and Proposed Reforms
• Ladder Principle:
◦ The Law Commission proposed a "ladder principle," suggesting a tiered approach to homicide offences, where the most serious would require an intention to kill and lesser tiers would involve different levels of intent or recklessness.
◦ Benefits:
▪ This approach would better reflect the varying degrees of culpability in homicide cases, potentially addressing the issues with both the broadness and narrowness of the current law.
◦ Criticism:
▪ Victor Tadros has criticised the Law Commission’s proposals, arguing that creating a single homicide offence with different levels of seriousness might still be too broad, leading to confusion and inconsistency in sentencing.
▪ He suggests an alternative, where murder could be divided into first-degree (intent to kill) and second-degree (intent to cause serious harm or reckless indifference) murder, or perhaps introducing an aggravated form of manslaughter to capture these distinctions.
Conclusion
• Summary: The current mens rea for murder, which includes intent to cause GBH, may indeed be too broad, potentially leading to unfair labelling and sentencing. However, restricting murder solely to cases of intent to kill would be too narrow and fail to capture the full range of morally blameworthy conduct.
• Final Argument: A more nuanced approach, possibly incorporating elements of the Law Commission’s "ladder principle" or a tiered system of homicide offences, could strike a better balance between ensuring justice and reflecting the seriousness of different forms of intent.