The Mental Element in Murder: Resolved at Last?
| Author | John Beaumont |
| DOI | http://doi.org/10.1177/002201839906300543 |
| Published date | 01 October 1999 |
| Date | 01 October 1999 |
| Subject Matter | Article |
The
Mental
Element
in
Murder:
Resolved
at
Last?
John Beaumont*
Does it
not
seem somewhat strange that the mental element, or
mens
rea,
of
murder
should have given rise to such debate over the past 40 years
or so?.After all, there is a lot of it about (murder that is) and the crime
is maybe just a little on the serious side. Surely by
now
the law should
be settled
and
certain. But, that is not
the
way that things have worked
out.
To practitioners it is a further source of exasperation
that
even the
most basic terms used in the application of the criminal law should
remain in a state of uncertainty. The questlon of the concept of reckless-
ness is well documented and major problems have arisen in conveying
the essence of this term to juries. IThe situation is little, if at all, better
concerning the meaning of that other important concept, intention, one
that is of course intimately related to the law of murder. Between the
sixties
and
last year there were no fewer
than
five House of Lords
decisions dealing with this Issue.' One of the purposes of having a final
right of appeal to the House of Lords on points of law of general public
importance is to inject certainty into the law, something
that
is an
important virtue in
any
criminal justice system. Judged on that basls
these visits to
the
House of Lords can be accounted overall as a woeful
failure. However, the latest appeal to the House of Lords on this matter,
woollin) gives
much
more cause for hope
and
may
mean
that at least
one of the major questions surrounding the term 'intention' has been
given some clarity.
It
is proposed, therefore, to review the law on the
mental element in murder.
In
doing so it is also possible to deal with the
question of intention generally in the criminal law, because it is surely
unthinkable (isn't it?) that the courts would give one meaning to the
word in the law of murder and a different one in respect of other crimes.
The answer to this, of course, is that nothing is unthinkable, as witness
the
way that the related term of recklessness has been given by the
courts at least two meanings, which differ according to the crime
chargedl But, one continues to live in hope."
*
John
Beaumont Is a past Head of the Law School at Leeds Metropolitan University.
He Is currently working as a consultant and freelance writer.
1See In particular
Cunningham
[1957J 2 QB 396, CCA;
Metropolitan
Police
Commissioner
v Caldwell [1982l AC 341, HL;
Reid
[1992J 3 All ER 673, HL; Smith and Hogan,
Criminal Law (8' edn, 1996) 64-72.
2
DPP
v Smith [1961J AC 290;
Hyam
v
DPP
[1975J AC 55;
Cunningham
[1982J AC 566;
Moloney
[1985J AC 905;
Hancock
[1986J AC 455.
3 [1999J AC 82 Quotations from the judgments are taken from the official transcript.
4It Is appropriate to add here that In his judgment In
Woollin
[1999J AC 82 Lord
Steyn said, 'I approach the Issues arising on this appeal on the basis that It does not
follow that "Intent" necessarily has precisely the same meaning In every context In
the criminal law' (at 90).
It
Is to be hoped that this does not usher in an array of
different approaches.
483
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