The Mens Rea for Murder - Essay Example

?Criminal Law 26 May MENS REA FOR MURDER AND FAULT ELEMENT FOR INVOLUNTARY MANSLAUGHTER There has been an on-going debate as to the evidence of guilt or the degree of culpability that is required in order to convict a criminal for the crime of murder and involuntary manslaughter. In the world of the legal experts, they have separate opinions with regard to the degree of motive or intent that is needed for the conviction of these two distinct crimes. Similarly, the quantum of evidence needed to satisfy the conviction of the crimes- murder and involuntary manslaughter, both require guilt beyond reasonable doubt. However, it is a fact in criminal law, that the “criminal intent” or the “mens rea” of the offender to be convicted for the commission of any of the crimes under the Code requires a different degree of culpability which is dependent on the nature of the crime. Hence, the elements of these two crimes are to be treated differently. The issue that presented before us now that needs to be resolved is: The Mens rea for murder is too narrow in certain respects and too wide in others. The fault element for involuntary manslaughter is simply too wide. To differentiate these two crimes, first thing that needs to be done is to identify the elements for the commission of each of the crimes. We start with the crime of Murder. Alan W. Norrie has reported that for the crime of murder, the case of R. V. Woolin 1 should be highlighted as the basis of defining the intention of the accused. “In this case, the House has rejected the conclusion of the Court of Appeal that foresight of a substantial risk of death or serious bodily harm could in certain circumstances be an “alternative mens rea” that can quality to intention of the accused”. While in the case of R. V. Nedrick2 , the High Court has endorsed with slight amendments of the law, as stated in the earlier Court of Appeal accepting the need for foresight of a “virtual certainty, while barring some unforeseen intervention, which obviously departed from the view of the earlier case of Hyam v. DPP3, where the formulation of foresight of a probable, or highly probable consequence is the mens rea for murder”4. In this case, the court directed that the juries to make a decision based on the intention of the defendants. However, there exists a conflict in the Woolin case which leaves the test for the criminal intention too specific. In the event that in the future a crime of murder is committed, the victim or his family shall be prejudiced by the conviction of the criminal to a lesser offence, carrying with it a lesser penalty because of non-compliance with the attendant circumstances as stated in the Woolin case, to make him liable for murder. Thus, it gives the criminal the privilege to demand for a lesser penalty and escape a portion of the imprisonment. Moreover, there are two issues which are left unanswered by the Woolin case, which concern the moral basis for convicting a criminal for murder. In one, the foresight of virtual certainty may be regarded as morally under-inclusive, while in the other, it is over-inclusive. These problems, relating to issues of good and bad motive, originated from the unstable moral core at the heart of mens rea, which the dominant subjectivist approach ignores at its peril.5 The principle laid down by Woolin case caused quite a stir because foreseeability and intention are the elements used to prove the degree of culpability of the offender. The terms “direct” and “indirect intention” are given their conservative meanings of “purpose, aim or object” and “necessary means to an end or side-effect foreseen as virtually certain to occur whether desired or not”. The argument of Norrie is that in the “process of legal and moral judgment in the criminal law, these terms cannot be fully separated from broader issues of “motive” or “ulterior intention”, understood as the moral backdrop to the intentions that are formed, and generally seen as irrelevant to culpability”6. Therefore, if the intention of the accused was merely to frighten the victim, but later on the victim dies, without having the intention to kill the person, he shall be liable for murder because the victim died. This shall be the case even if he has only foreseen the act of scaring the person and had no intention to actually kill him. Applying the Woolin case, the accused will still be held liable for the crime of murder. In addition, Lord Steyn declared in Woolin that the words “entitled to infer” in the model Nedrick direction should be replaced with the clearer terms of “entitled to find”, to make the definition of intention narrower in scope. The words “entitled to infer” intention in the Nedrick case has a broad scope should be narrowed down by using the phrase “entitled to find”7. Thus, the mens rea for murder in the future should be more specific or narrowed down considering the gravity of the offense and the penalty involved. The Woolin doctrine should be amended in such a way that the intention of the accused must be factored in and not merely rely on the result of the crime. Criminal intention must be the basis to convict a person for the crime of murder. Otherwise, the law will be punishing the offenders harshly without carefully studying the intention of the accused by merely acting in a reckless manner without criminal intent will still be liable for the victim’s death. According to Glanville Williams’ study, he does not agree with Lord Goff by stating: “dispense with an instruction on foresight altogether. He suggests that his proposal would eliminate the need for a jury to consider whether the defendant foresaw the consequence of his act. It is enough that he did not care what the consequence might be. The error of this line of argument has often been pointed out. On what evidence can it be said that a person does not care whether he causes death, or does not realize that he may cause death. The law now is, and rightly is in my opinion, that the jury in Hyam should have been left to decide whether the defendant intended to kill or whether she was only acted recklessly”8. To this end, the House of Lords’ decision in Woolin would appear to suggest a move towards the narrower definition of intention in mens rea, which on the one hand would appear to be a welcome move towards preserving certainty and confidence in the law. At present, the mens rea of murder according to Norrie’s study as he refers to Professor John Smith’s “suggestion to the Woolin decision, by drawing-out the firm line between intention and recklessness”9. By mapping-out boundaries, the ambiguities in the interpretation of the criminal intent of the accused will be given a clearer perspective. However, Norrie highlights the point that although “Woolin slightly stayed away from Hyam case, it did not completely reject the principle laid down in Hyam, which means that Woolin was became influential in clarifying the scope of indirect intention”10. It is respectfully submitted that in the future, the mens rea of murder should be made intrinsically narrow and limited to the requisites of the law and adhere to the mens rea of murder in a classic view. This in turn, highlights the inherent difficulty of applying narrow legal concepts to moral issues and to this end, Norrie highlights the point that: “The case law contains both foresight of virtual certainty and foresight of high probability elements precisely because neither approach adequately embodies the moral judgments required by the murder label” 11. On the other hand, on the issue that the fault element for involuntary manslaughter is simply too wide, the elements of the crime must be first identified. For Involuntary manslaughter: (a) Constructive manslaughter per Lord Hope in A/G’s Ref (No.3 of 1994)12 : The only questions which need to be addressed are: 1. Whether the act was done intentionally, 2. Whether it was unlawful, 3. Whether it was also dangerous because it was likely to cause harm to somebody and; 4. Whether that unlawful and dangerous act caused the death. (b) Gross negligence manslaughter The case of gross negligence manslaughter must possess the following elements based in a decision of the House of Lords decision of R. v Adomako13 set out the basic definition of gross negligence: 1. The defendant owed the victim a duty of care. 2. The defendant breached the duty of care. 3. The defendant's breach of duty caused the death. 4. The breach of the duty was gross. Lord McKay pointed out that the duty of care must first be identified in order to establish gross negligence by stating that: “On this basis in my opinion the ordinary principles of the law of negligence apply to ascertain whether or not the defendant has been in breach of a duty of care towards the victim who has died. If such breach of duty is established the next question is whether that breach of duty caused the death of the victim”. However, the study of Barry Mitchell14 has made an incredible breakthrough by stating that since the definition of mens rea for involuntary manslaughter is too broad, a specific definition for such crime must be established: “In many ‘single punch’ type cases there would be no prosecution for assault had a fatality not occurred; prosecution for manslaughter following a minor assault hinges on an “accident”, the chance outcome of death. Moreover, the Irish Law Reform Commission felt that ordinary reasonable people would, as a matter of common sense, say that it is very unlikely that punching someone once in the face or pushing them in a queue would result in death. Ultimately, this led the ILRC to recommend the creation of a new offence, namely assault causing death (ACD), specifically for cases where a minor assault leads to death. The only apparent mens rea for ACD would relate to the assault; death would have to be “wholly unforeseeable”, otherwise the defendant should be charged with UDA manslaughter. Apart from the obvious benefits that it would “(i) position this particular category of cases where there are comparatively low levels of moral blame below other more culpable homicides, and (ii) address concerns that the offence of manslaughter encompasses too wide a variety of situations and circumstances. Those who favour a clearly subjective approach to criminal liability might well object that the defendant is still being convicted and punished for a criminal homicide notwithstanding the low level of moral blame”15. The benefits of this approach will redound to the defendant, who can downgrade the crime to less serious offence and avoid the automatic implication that the defendant is morally culpable for causing death, as well as for the assault, for it is well established in English criminal law that it may only be necessary for the prosecution to establish mens rea in relation to some of the offence elements, rather than all of them. In addition Herring and Palser reported that: “What is clear is that there is a real need for greater clarity and consistency in this respect, and that raises the broader question of whether it is appropriate to use the tort test or whether criminal law should develop its own, such as a test based on “reasonable foreseeability” alone. An approach based simply on reasonable foreseeability may also lead to a conflict with the policy underlying tort law where it has been decided that certain people performing certain tasks should be free from the fear of litigation. The benefit of using the tort test is that it encapsulates restrictions on liability based on policy and principle which would otherwise be lost with a straight-forward “reasonable foreseeability” test”16. To conclude, notwithstanding the decision in Woolin, it is clear that the practical application of mens rea remains open to judicial expansion, being too narrow in nature, thereby perpetuating legal uncertainty when the jury arrives at a decision on conviction or acquittal of the accused. On the other side of the spectrum, mens rea for manslaughter covers a very broad perspective and has developed according to the complex recklessness yardstick, which has continued to create problems, as concept of recklessness remain a grey area which presses the need for re-evaluation of the legal framework. Thus, the ambiguity brought about by the broad definition of such crime carried with it reasonable uncertainty if the appropriate test was not applied by the jury before they can establish the degree of culpability by defendant. Works Cited: A/G’s Ref (No.3 of 1994) [1997] 3 WLR 421, HL : Herring, Jonathan and Elaine Palser. The Duty of Care in Gross Negligence Manslaughter. Criminal Law Review ( 2007): Print. Hyam v. DPP [1974] 2 W.L.R. 604 Mitchell, Barry. More Thoughts About Unlawful and Dangerous Act Manslaughter and the One Punch Killer. Criminal Law Review. (2009): Print Norrie, Alan W. After Woolin. Criminal Law Review. (1999):Print R. v Adomako [1995] 1 A.C. 171 (HL) R V. Nedrick [1986] 2 W.L.R. 1025 R. v Woollin [1999] 1 A.C. 82 (HL) Simister, A.P. Murder, Mens Rea and the House of Lords Again. Law Quarterly Review. (1999): Print Williams, Glanville. The Mans Rea for Murder: Leave It Alone. Law Quarterly Review.(1989): Print. Read More