Negligent Murder
| Published date | 01 November 1963 |
| DOI | http://doi.org/10.1111/j.1468-2230.1963.tb02234.x |
| Date | 01 November 1963 |
| Author | S. C. Desch |
NEGLIGENT MURDER
IT
has long been accepted in English law, and more recently in
American, that
an
intention to
kill
is not the only form of malice
aforethought. Malice is implied
if
the accused foresaw that
his
act was likely to cause death
or
grievous bodily harm.
If
he
foresaw death as a likely consequence of his conduct but
it
was
not his object, he acted knowing that death might result.'
If
he
intended
to
cause grievous bodily harm,
or
appreciated the risk of
death
or
grievous bodily harm and accepted
it,
he acted recklessly
as regards death resulting. Recklessness is advertent negligence.
The basis of liability generally called negligence exists where the
mind is inadvertenL2 A man
is
legally negligent
if
he failed to
foresee that certain consequences would probably result from his
conduct, in circumstances where
a
reasonable man would have
foreseen those consequences, provided that he was capable of such
foresight. Such inadvertence may be due to (a) not thinking
about the consequences; (b) thinking about the consequences but
failing to arrive at the conclusion concerning them at which a
reasonable man would have amved; (c) not knowing about certain
circumstances, when
a
reasonable man would have got such
knowledge before acting. Though culpable, the negligent man
is
not
as
culpable as the man who acts recklessly, knowingly
or
intentionally, and generally he
will
be guilty of
a
lesser crime,
or
in cases where a specific intent
is
required,s not guilty at all.
has agitated though
it
did
not sufEciently articulate the problem of whether such
a
specific
intent is,
or
should
be,
required
to
convict a man of murder.
Full
awareness of this problem is quite a recent development.
Nineteenth century legal discussions used commonplace legal
phrases like
"
specific intent
"
in a sense very different from that
in which they are understood t~day.~
It
is probably
only
during
the last fifty years that lawyers have faced clearly the need to
choose between two approaches:
on
the one hand, that which
considers that every sane man should be able to behave and think
The judgment in
D.P.P.
v.
Smith
1
Distinguish the cases where in fact the man's knowledge
of
the circumstances
and probable consequences of
his
conduct is
so
complete that he is assumed
to have intended those consequences.
2
See Williams,
Criminal Law
(2nd ed., 1961),
5
36;
Hart,
'I
Negligence,
Mew
Rea
and Criminal Responsibility," in
Ozford
Essays in Jurisprudence
(Guest ed., 1961), p.
29;
Hall,
General Principles
of
Criminal Law
(2nd ed.,
1960), Chaps.
4
and 5.
a
See,
e.g.,
R.
v.
Steane
[1947]
K.B.
997
(C.C.A.), discussed 19611 A.C.
%@
at pp. 331-332; and
R.
v.
Grimwood
119621
3
W.L.R.
741;
[1962]
3
All
E.R.
2S
(C.C.A.).
4
[1961] A.C,.,
290.
5
See Cross, Specific
Intent"
[1961] Crim.L.R. 510.
660
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