Murderous intent—The attitude of a murderer?
| Author | Gavin Leigh |
| DOI | 10.1177/00220183211031057 |
| Date | 01 February 2022 |
| Published date | 01 February 2022 |
| Subject Matter | Articles |
Article
Murderous intent—The attitude
of a murderer?
Gavin Leigh
Coventry University, UK
Abstract
There is a controversy in the definition of murder in England and Wales. This relates to
‘intention’ in the mental element, which can include the defendant’s foresight of death or
grievous bodily harm (GBH) as ‘virtually certain’. This ‘oblique’ intent is criticised as morally
under-inclusive. In this article, it is argued the crime can better capture those killings that
should be categorised as murder by rejecting oblique intent. It is accepted th at GBH ought to
be a part of the mental element. However, the article proposes murder should capture
heinous forms of risk-taking through knowledge of likely death or GBH which, if it were to
occur, might be useful in contributing to the defendant’s purpose. This cognitive approach
supports a murderous attitude called reconciliation. That attitude is contrasted with the
dictionary definition of intention in which death or GBH can be used in pursuit of, or is, the
defendant’s purpose.
Keywords
Murder, oblique intention, virtual certainty, knowledge, reconciliation
Introduction
In England and Wales, the mental element in murder has long struggled to capture unlawful homicides
that reflect especially heinous forms of risk-taking, despite the relatively settled status of the law.
1
The
mental element of murder includes the intention to cause grievous bodily harm (GBH), as confirmed in R
v Cunningham,
2
and I am working on the basis this is the correct approach. It is similarly accepted that a
purpose to kill or cause GBH, which results in the death of another, should be addressed by transferred
malice. However, there are doubts among judges and jurists alike about the meaning of intention. In
particular, the idea that it renders the mental element of murder morally under-inclusive because it does
Corresponding author:
Gavin Leigh, Coventry University, Coventry CV1 5FB, UK.
E-mail: ac2599@coventry.ac.uk
1. R v Woollin [1999] AC 82 (HL); [1998] 3 WLR 382 HL [Woollin].
2. R v Cunningham [1982] AC 566 HL.
The Journal of Criminal Law
ªThe Author(s) 2021
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DOI: 10.1177/00220183211031057
journals.sagepub.com/home/clj
2022, Vol. 86(1) 18–28
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