As set out by Sir Edward Coke, a murder occurs where a person unlawfully kills any reasonable creature in rerum natura under the Queen’s peace with malice aforethought, express or implied by law.

The misleading meaning of malice aforethought is the subject of debates, because these words are being construed legally rather than in ordinary sense.

Too Narrow?

Neither malice nor foresight need to be present to amount to the requisite mental state for murder, namely – the intention in a form of desire or aim to bring about the result. Malice aforethought does not fit into the narrow definition of specific intent, where nothing less that intention will suffice. Narrow meaning represents the contention that the crime with the highest degree of seriousness must be accompanied with the mental element of the highest degree of fault that is most precisely defined. Murderous killing must clearly be demarked from other forms of homicide, for example, the constructive manslaughter, and mens rea is the only narrow gateway for the prosecution to secure conviction. This meaning does not consider moral evaluations of blameworthiness and motives (Ashworth). Mens rea for murder is not meant to play the role of reflecting the public sense of wrongdoing. So, the intention and motive are separated.

The core meaning of intention is left for the jury to decide whether defendant intended to kill or to do serious bodily harm. There is no legal definition, and the jury need to apply the ordinary meaning of intention, i.e. what is meant, aimed, reasoned, desired by the offender. The interpretation of the ordinary dictionary meaning of direct intention by the jury leaves some room in the narrow space. According to Mohan (1975) - intention is a decision to bring about the relevant consequence, whether the accused desired the consequence or not. In other words, the consequence maybe be intended even if it is not desired as long as defendant looks at the consequence as a success of his plan.

When it comes to oblique intention, where the murderous result comes out as a side effect of the defendant’s plan, then the meaning of the intention is often clarified to the jury in a more technical and precise sense. Such precision can also be interpreted as too narrow, despite that fact it goes beyond the ordinary meaning of an intention in a ‘good sense’ and gives to the jury even wider grounds for interpretation. The jury could, but do not have to, find (not infer or imply) the intention to kill or to do serious harm if the consequence of the act is virtually certain and defendant is able to appreciate that. It is narrow because lesser degrees of certainty, for example, very high probability - will not suffice. From this perspective, reckless risk taking is falling outside the captive area of mens rea for murder. Hence the dividing line between the very high probability and practical certainty although blurred but critical. Deliberate risk-taking was previously taken as a form of intention in Hyam v DPP (1975), based on the impression of moral culpability of endangering lives in a wicked way. But this overly generous definition potentially catches non murderous crimes, where the defendant may not intend to kill but still be willing to take a high risk. After Hyam and before Nedrick, the state of law was highly in disarray. In R v Hancock (1986) the jury wrongly convicted of murder based on the direction of ‘high probability’ suggested in R v Moloney (1985). The House of Lords in quashing the murder conviction accepted that Moloney guidelines are misleading but did not provide new directions. Willingness to kill may be present with or without willingness to take the risk, but willingness to endanger life on its own is not included into mens rea for murder. The notion of ‘natural and probable’ consequence is way too loose, here is why the Court of Appeal did not follow Moloney (1985) and tightened up the definition down to ‘’virtually certain’ consequence in Nedrick (1986) which subsequently got refined by the House of Lords in Woollin (1999). Simply, the jury shall NOT find the intention unless they are sure that death or serious bodily harm is a virtually certain and known consequence of the defendant’s action excluding unforeseen intervention. With this narrower test, some murder convictions are excluded. In Wollin L Steyn recited a popular example of a terrorist who deploys a bomb and as a result – a member of the disposal team is killed. If mens rea question is not placed in the framework of risk taking but - in the terms of foresight of virtual certainty, then the murder is not made out. However, practically the next conviction immediately below is manslaughter, which gives the court a discretion of a life sentence. Whether this satisfies the society’s sense of justice – is a different matter. Nevertheless, the core definition remains open, as the foresight of certainty does not equate to intention. The foresight of virtual certainly is just the evidence of possible intention, but not the intention itself.

The high burden of proof, which requires to show what defendant meant (direct intention) or subjectively knew (oblique intention) upon performing the actus reus, may suggest that mens rea for murder is too narrow. For example, in Woollin the Crown did not allege the intention to kill, neither it argued that the foresight of virtual certainty is too narrow as a test in murder. Instead, the Crown asserted that the model direction of ‘virtual certainty’ shall not be given because the evidence was not limited to the action of the accused and its consequence. Simply, the jury do not need specific directions when they have other evidence. The House of Lords rejected this proposition, because posing different tests depending on evidence creates great difficulties. The trial judge shall decide what direction is required based on circumstances. It followed that the prosecution failed to prove the necessary mental element. In R v Matthews (2003) the trial judge summed up both directions for the jury, and this was approved by the Court of Appeal. It is possible to secure conviction by providing Wollin direction as a fall-back position of the prosecution.

Too Wide?

From the wide meaning perspective, the word ‘malice’ in ‘malice aforethought’ has a bigger role to play.

Since the jury are entitled but not obliged to find the oblique intention based on the court’s direction, this allows them to exercise some value judgement depending upon the perceived degree of malice. By looking into the reasons why defendant acted as they did, the jury open the wider door into the ‘moral elbow room’. In other words, the jury can apply non-legal criteria to decide whether to call defendant a murderer. This allows flexibility, since affirmative defences for murder are very limited: once mens rea is established, it is hard to justify the killing, for example, as a necessity unless the case is exceptional (Re A 2001 conjoined twins.) Hence, the best route to avoid murder conviction is to rely on the wide discretion afforded to the jury: whatever can be proved to be in the defendant’s mind, no matter how culpable, would fall inside the discretion and/or outside the narrow test for mens rea. Despite being the best for the defendant, such route is entirely in the hands of the jury. Notwithstanding that the motive is not a part of mens rea by definition, the jury in most cases won’t be able to avoid bringing the verdict based the amount of malice in the act of the defendant or based in the reasons which ‘justify’ the killing. These considerations will be hidden into the verdict of ‘not guilty’ of murder.

Such state of the law creates potential arbitrariness. This is because not guilty verdict due to lack of mens rea could mean a complete acquittal. Some cases maybe just on the edge of murder or nothing. For example, some defendants act in pursuing the duty of care despite the foresight of certain death or serious injury (Bodkin Adams). This is in contrast with cases where defendants may create the risk of death in purpose (Hyam).

Although the constructive malice (‘felony murder’) was abolished by the Homicide Act 1957, the doctrine of implied malice in the form of intention to cause grievous bodily harm seemingly makes mens rea for murder look unnecessarily very large. But does it really? As stated in Vickers (1975) - ‘malice aforethought’ is a term of art, it is defined as express intention to kill or implied intention, there the defendant intended to cause grievous bodily harm. If the intention to cause really serious injury is often very much express rather than implied, then why the court should imply the murder malice? The argument is that the intent, i.e. to cause grievous bodily harm, does not correspond to the harm, i.e. death. If GBH is caused with intent – then the defence of duress may be available. But if the murder is caused with the intent to cause GBH – then the defence of duress is not available. L Steyn in Wollin admitted that this feature of the law of murder related to the species of constructive crime contributed to many problems in courts. In R v Cunningham (1981) the House of Lords was invited to reformulate the murder so that to confine mens rea to an intention to endanger life instead of an intention to do GBH, relying on L Diplock’s opinion in Hyam. However, the court thought that such reformulation will not improve the clarity of the law or make the task of the jury any easier in relying on the test that is ‘practically unworkable’. This is because the difference between inflicting GHB and endangering life seemed not sufficiently striking so that to trigger judicial legislation. These days acts of cruelty like deploying bombs or firing weapons in public places, knife crime and racially motivated stabbing, taking hostages, etc can all be described as endangering lives. Our ancestors were so much more brutal, therefore a different view on what is wrong could be taken. Despite this, as noted by Lord Hailsham in Cunningham, the public policy in terms the concepts of what is right or wrong - is a ‘difficult horses for the judiciary to ride’. From this perspective it can be concluded that mens rea for murder is limited to intention to kill or intention to cause grievous bodily harm, and NOT the intention to endanger lives. On the other hand, in the words of Lord Mustill in A-G's Reference (No 3 of 1994), the GBH rule is an ‘outcropping’ of old law.

Why convictions for murder are perfectly possible in cases where the death is not contemplated and cannot even be foreseen? Since the meaning of GBH is wider than life-threatening harm, and this meaning is the same as contained in the statutory offence in s. 18 of OAPA 1861, it follows that causing GBH with intent which brings accidental and unfortunate death may result in murder conviction, the most serious criminal offence carrying mandatory life sentence. Can this be considered just and reasonable in the light of the hypothetical ‘bomb terrorist’ who purposively, wickedly and recklessly endangers lives? It must be noted that if the bomb is deployed in the aircraft then the intention to kill is aimed at the class of potential victims of which the actual victim forms part, per Lord Mustill in A-G's Reference (No 3 of 1994). As for cases of GBH murder – the suggestion is that defendants create their own back luck.

It can be concluded that mens rea for murder is full of subtleties which makes it both too narrow and too wide. If it allows the courts to deal with each case on its merits, such position can be considered as relatively stable, where the proposed reforms are not urgently required.

The mens rea for murder is defined in the common law as intention to kill or intension to cause grievous bodily harm. This definition has been widely criticized for being both too narrow and too broad. The Law Commission Report 2006 emphasizes the need to reform the laws governing homicide which have been left unaltered since the seventeenth century. The current denotation of the mens rea for murder can be seen as inclusive of unnecessarily wide parameters and simultaneously negating crucial points of interests. In order to navigate through the definition of the mens rea for murder one must interrogate both sides of the spectrum, to avoid overcriminalization and miscarriages of justice.

The evolution of mens rea is paramount to understanding its function in the criminal justice system. The codification of homicide law has its genesis in Coke’s definition of murder which highlights, ‘malice aforethought’ as the mental element. Malice aforethought does not require the perpetrator to have any actual malice or premeditation. This notion has been refined to be called, intention as established in Hyam (1975). Intension is satisfied when a person has sufficient foresight of the results of their actions. This does not mean that the person necessarily desired death to be an outcome, as in Moloney (1985) but that it was a virtual certainty. The somewhat enigmatic nature of the mens rea for murder produces both broad and narrow inconsistencies.

Firstly, this definition can be seen as eclectic because the mens rea is satisfied by an intention to cause grievous bodily harm. This threshold deals out the sentence of life imprisonment for a person with no direct motive to kill, only an oblique intension. Additionally, the definition of murder itself clearly states that malice aforethought is inclusive of intent to cause the victim serious bodily harm as established in the case of R v Vickers (1957). The courts do not consider motive as being of consequence to mens rea thus a person who kills with premeditation is equated with someone who only intended to damage their victim, both are labelled murderers. Indirect intent is also used in cases whereby there was no premeditation to hurt a person however the action, done out of provocation, allowed a substantial risk of grievous injury as in the case of Woollin (1999). Here the thought process which led to the killing is completely different to that of a cold-blooded killer yet the mens rea allows for these crimes to be equivalent.

The Law Commission Report (2006) has purported a remedy to this issue by suggesting that degrees of murder should be introduced to the UK criminal justice system. This way homicide of the highest culpability will be deemed ‘first degree murder,’ killings of slightly less culpability will be placed into the category of ‘second degree’ and ‘third degree murder’ would be broken up into the various parameters of manslaughter. Increased categorization of the offence will help to avoid overcriminalization. This in turn will help to make the mens rea for murder less broad in practice.

The issue of assisted suicide raises contention as the mens rea of murder does not allow for mercy killings to be lawful . The raison d’etre of the law of murder favors the protection of human life over respect for human autonomy. This wide scope criminalizes assisted suicide under sec. 2 (1) of the Suicide Act 1961. Euthanasia has been accepted in many countries such as Canada as a respectful way to end an exceedingly painful or unbearable life, once the patient agrees and the act is carried out by a medical professional. In Nicklinson v UK (2014), the appellant suffered from ‘locked in syndrome’ which left him mostly paralyzed, he declared his life to be intolerable. Furthermore, he raised the issue that the 1961 act violated his autonomy and human rights, under Article 8 (1) of the ECHR. The mens rea on murder would be negating fundamental rights if it continues to have such a wide approach to assisted suicide. The ruling on the Nicklinson case acknowledges that reform is imminent. The definition of murder must be cognizant of the status quo in order to respect the autonomy of citizens, it should not be wide enough to stifle free will.

The mens rea yet can be considered too narrow in dealing with reckless manslaughter. This mitigates the murder sentence. A person has acted recklessly when they are aware that certain actions would have a criminal consequence and went on to take that unreasonable risk, as shown in R v G (2003). The mens rea does not distinguish between planning to expose someone to a risk and merely foreseeing it. This poses an issue in homicide cases whereby someone who intentionally created a risk and caused death can get a reduced sentence of reckless manslaughter even when their culpability is especially high. Writer Antje Pedain tackled this legal question by illustrating that a terrorist who plants a bomb in a metropolis but warns the police about it, cannot be liable for murder under the current law. They would receive the sentence of reckless manslaughter even though they achieved their ultimate purpose, that of instilling fear among the populace. Pedain insists upon clearer parameters separating the intention behind murder and reckless manslaughter. The defendant’s level of commitment to the outcome of the recklessness must be weighted. Those who knowingly commit the act should satisfy the mental element of murder. They should be distinguished from other forms of recklessness by statute, having clear-cut law will allow for ease of judgement. The mental element must be extended to include exceptional cases of recklessness manslaughter in the definition of murder.

Additionally, the mental element heralding diminished responsibility can be worthy of a murder sentence rather than manslaughter. According to the Homicide Act 1957 sec. 2, persons are not culpable of murder in cases of diminished responsibility. The narrowness of the mens rea protects grossly negligent killers even when that negligence is morally reprehensible. Gross negligent manslaughter calls for there to be a duty of care; for that duty of care to breached and Bateman (1925) evidences that the breach much show such a disregard for life that it deserves punishment. Adomako (1994) brought some consistency to the matter in establishing a uniform test for manslaughter. This test can be further stratified to create culpability for especially inexcusable cases of killing through gross negligence. The three-tier system proposed by the Law Commission as aforementioned would place these greater crimes in the second tier whilst leaving the bulk of cases in the manslaughter category. Hence the mens rea for murder will be enhanced by widening the parameters of murder to include some cases of gross negligence.

The mens rea for murder ultimately tries to uphold a high level of culpability for murder whilst avoiding overcriminalization. The exceptionally wide scope of the mens rea is faulted in equating the intention to cause grievous bodily harm with premeditated murder, and its treatment of criminalizing euthanasia. It has proven to be too narrow in its allocation of the negligent homicides of reckless manslaughter and gross negligence manslaughter. The mens rea of murder needs to be reformed in order to avoid miscarriages of justice. Reforming the mental element of murder calls for an intricate satisfaction of both the broad and narrow areas to increase the functionality of the criminal justice system.