There Are As Many Views On The Mens Rea Of Murder As There Are Cases

There are as many views on the mens rea of murder as there are cases. The last 40 years has witnessed a said inability of the courts to sort it out coherently and precisely.

Mens Rea, or “guilty mind,” marks a central distinguishing feature of criminal law. An injury caused without mens rea might be grounds for civil liability but typically not for criminal. Criminal liability requires not only causing a prohibited harm or evil -- the “actus reus” of an offense -- but also a particular state of mind with regard to causing that harm or evil.
For a phrase so central to criminal law, “mens rea” suffers from a surprising degree of confusion in its meaning. One source of confusion arises from the two distinct ways in which the phrase is used, in a broad sense and in a narrow sense. In its broad sense, “mens rea” is synonymous with a person’s blameworthiness, or more precisely, those conditions that make a person’s violation sufficiently blameworthy to merit the condemnation of criminal conviction. In this broad sense, the phrase includes all criminal law doctrines of blameworthiness -- mental requirements of an offense as well as excuse defenses such as insanity, immaturity, and duress, to name a few. This was a frequent usage of “mens rea” at common law. It remains common among non-legal disciplines such as philosophy and psychology, perhaps because it captures in a single phrase criminal law’s focus on personal culpability.
As noted by the authors of Smith & Hogan 12th Edition:
The literal meaning of ‘mens rea’- ‘a guilty mind’- is misleading unless it is kept in mind that we are concerned with legal not moral guilt.
Mens rea is the mental element required by the definition of the particular crime- typically, intention to cause the actus reus of that crime, or recklessness whether it be caused. The modern meaning of mens rea, and the one common in legal usage today, is narrower: Mens rea describes the state of mind or inattention that, together with its accompanying conduct, the criminal law defines as an offense. In more technical terms, the mens rea of an offense consists of those elements of the offense definition that describe the required mental state of the defendant at the time of the offense, but does not include excuse defenses or other doctrines outside the offense definition.
Murder has been classically defined by Sir Edward Coke as far back as the 17th century as:
“… when (1)a man of sound memory, and (2) of the age of discretion, (3) unlawfully killeth within any country of the realm (4) any reasonable creature in rerum natura under the King's peace, (5) with malice aforethought, either expressed by the party or implied by law, (6) so as the party wounded, or hurt, etc. die of the wound or hurt, etc. (7) within a year and a day after the same."

"Murder is, of course, killing with malice aforethought, but ' malice 'aforethought' is a term of art, it is a concept of the common law. It has a long history but, since Moloney (1985) where a soldier shot and killed his stepfather in response to a drunken challenge. He claimed that he had not aimed the gun at the victim and had, at no time, no idea that firing it would cause injury, it is no longer necessary to explore this in order to expand the modern law. We can now states that it consists in:
1. an intention to kill any person or,
2. an intention to cause grievous bodily harm to any person.
Aim, purpose or desire is a type of intention. In the 1947 case of R v Steane the accused was convicted of doing acts likely to assist the enemy with intent to do so, having made war-time broadcasts for the Germans. He appealed on the basis that that he acted in order to save his family. The Court of Appeal held that the accused actions were consistent with the innocent intention claimed rather than the criminal intent charged because he had acted with the desire of saving his family and not to assist the enemy. The court recognized that motive and intention are different concepts but the decision seems not only to equate the two but also to restrict the meaning of intention to desire. In case of Woolin [1999] Cr App R 8 the defendant killed his child by throwing him into a hard surface. Part of the Judge’s direction suggested that intention can be said to exist where a person desires a certain consequence and by his actions brings it about (direct intention); and person foresees that it is a virtual certainty that (barring any unforeseen circumstances) the defendant’s action would cause death or serious bodily harm although the defendant does not desire the consequence for its own sake. Woolin, only deals with murder and it suggest that the intent may not precisely have the same meaning in every context.
While grievous bodily harm is serious physical injury inflicted on a person by the deliberate action of another. The Court of Appeal in Bollam (2004) the defendant was convicted of GBH under s.18 OAPA 1861 for injuries he inflicted on his partner's 17 month old daughter. The injuries consisted of various bruises and abrasions. He appealed against his conviction on the grounds that the judge should have directed the jury that in assessing whether the injuries were serious enough to amount to GBH they should not take into account the age of the victim. It was held that the jury is entitled to take into account the particular characteristics of the victim. However the judge failed to direct the jury that they must be sure that the injuries came from the one assault. The expert medical witness suggested some of the injuries were older than others. The defendant's conviction for grievous bodily harm was therefore quashed and substituted with actual bodily harm. The evaluation of whether the harm is sufficiently serious is based on the jury’s assessment of the harm caused to the particular victim. The age and vulnerability of the victim is therefore of importance. It is not a question of whether or not the defendant thought he was causing serious harm.