Criminal Formative Assessment 2020

The Question

Critically examine the claim that the mens rea for murder is both too narrow and too broad.

All material kindly contributed by essay authors and used with their kind permission.

criminal FA 2020.mp4

Sample Feedback

Second Lower: 52

The answer you present suggests you can write in a reasonably coherent way, and you are able to demonstrate some understanding of this area of criminal law. Your response generates some general discussion about the principles of criminal law, and you are able to explore the details of some of the cases often referred to. You provide an introductory section on the definition of murder, which is useful, and you then go through a range of cases to respond to task. I particularly liked your use of Rogers as academic commentary as it does ask some interesting questions about unjustified risk taking.

Although you are reasonably solid in terms of your account of the law and its relevance to task you do need to structure your responses more carefully. Your response tended to be case led rather than argument led and it all becomes a bit unclear where you are going. You should have organised the identified issues into evidence that shows the mens rea for murder is too broad and the evidence, which shows the mens rea is too narrow. The problem with not adopting this approach is that any relevant argument tends to emerge by accident rather than by design and although the discussion is interesting it is not always clear why cases have been specifically identified. This means there is a tendency for the reader to ask ‘and so?’ at the end of each paragraph. At the end it would have also been useful to provide a clearer discussion of the Law Commission report in 2006, which may have overcome some of the problems identified. Much of the restriction relates to the mandatory life sentence for murder. A laddered approach would arguably resolve these problems although it is not without its criticisms. Also ensure you do more with the case of Woollin (1999) given it is the key case in intention. The response covers much of the relevant detail (bar exceptions noted) but does tend to lack focus.

You are able to secure a solid mark but the focus is not always as integrated as it could be, and this inevitably means there are gaps of analysis. A tighter level of planning should assist you moving forward. Also remember to explain why you are discussing the key cases in the area. That said it was a reasonably interesting read and your use of Rogers is a key issue, well considered.

Second Lower: 52

improve english and structure

Second Lower: 52


The discussion on mens rea is good and analytical. It raises interesting points. Although the legal authority is not identified, some legal principles are discussed in the answer and that’s done in an analytical manner.

The essay is quite well written; it is clear and it has a good flow. Furthemore, the writing has a nicely analytical tone, and the discussion overall is analytical.

Areas for Improvement

The discussion here is good, analytical but it is largely not backed up by legal authority. The answer inevitably needed discussion on direct / indirect intent, their development through case law, detailing and discussing those cases and the same for intent to cause GBH.

It is paramount that your discussion is grounded in law, and stems from legal authority and legal analysis as at the end of the day, you will be assessed on your knowledge of the law. So going forward, think about how well have you evidenced your answers and you should never have an entire paragraph without legal authority (primary legal sources like case law, statute, or secondary sources like Law Commission reports).

Remember to always follow the following structure “introduction, main body, conclusion”. Introduction should give some context to the essay, give a clear indication of your argument/position/perspective, and give an overview of the structure. In other words, it should introduce your essay, not the law.

Second Lower: 58


- The essay is very clearly structured and well presented - the written English is clear;

- There are some good references to various journal articles and the CLRC recommendations;

- It was interesting to see a comparative approach with some examination of the position in Scots law.

Areas for Improvement

- Overall the essay was a little broad brush and a touch too superficial. Greater depth and detailed discussion is needed in order to expand the points you are making and get full credit;

- On the issue of the GBH rule we need some examples/cases to demonstrate the supposed absurdity and injustice of the present law;

- The legal test in Woollin needed to be clearly set out and both its limbs separated and explained: a virtual certainty of death or GBH arising from D's conduct and D's awareness that his conduct created a virtual certainty of death or GBH barring some unforeseen intervention;

Other Comments

Overall there was evidence of good engagement with the question and some good reasoning. It is possible that you were a little brief and superficial though!

Second Upper: 62


This was a very nice submission and covered most of the issues with appropriate use of authority. It was easy to follow and well presented. You identified all the key elements - and unlike most recognised that this was not a question about the difference between direct and indirect intention. You were right that the mens rea is often thought to be over-inclusive in respect of GBH. Difficult to argue on individual rights grounds that a perpetrator of GBH should be convicted of a harm that they did not envisage. GBH can, in itself, encompass quite a wide variety of harms and degress of harm so it is possible that someone who intended a comparatively low degree of harm could find themselves liable for murder. Hence the bulk of critical commentary.

However, there is more to say. There are strong public policy reasons for trying to deter the deliberate infliction of GBH and so there might be a case for making such perpetrators vulnerable to their own "bad luck" should death result. Also, the MR has to be proved beyond reasonable doubt. Might there not be difficulty in proving an intent to kill as opposed to cause GBH if the law be reformed? For example, a man deliberately hacks off another's hand with a machete and then leaves them in an alley where they bleed to death. Unbeknownst to the perpetrator the whole event is captured on CCTV. As it stands the MR looks fairly easy to prove but what if the defendant admits intent to cause GBH but denies intent to kill? Would it be acceptable to the public if such a man could only be convicted of manslaughter because intent to kill could not be proved beyond reasonable doubt? In other words there are political and policy reasons as to why, despite many proposals, this area of the law has not been reformed.

The section on extreme indifference to life in the oblique intention cases was short but to the point. Difficult to refute the argument that such people are at least as culpable as those who intend GBH. Good use of materials and both awareness of the Law Commission's proposals and Norrie's counter. I particularly liked your awareness that law reform is a matter of politics and public sensibility as well as legal debate. I believe that a laddered structure for homicide not dissimilar to that currently proposed was also advocated by the Criminal Law Revision Committee in 1906. Whatever the logic of reform there is little appetite in government to place themselves in a position where they might be represented as "soft" on the crime of murder.

Areas for improvement

Obviously, this was a little short of the assignment limit and thus there was room for more commentary. For example, you might have defined GBH and pointed out the breadth of that offence. You should date acts as, amongst other things, there have often been several acts with the same short titles. For cases, the full legal citation should be included. MR is fine in the essay and, after first citation, you can use OAPA. All in all this was very nice a few minor tweaks and a little more commentary employing all the word limit would have added some more - but the best I have seen to date. WELL DONE!

Second Upper: 65

You show great ability and write well.

Your work is well researched and you display a good level of understanding of the principles.

You trace the historical development of the principles of MR in relation to murder and competently review this.

You show an awareness of how these historical changes have impacted upon the scope of the offence of murder.

Well referenced overall.

Whilst you do a good job of describing the history of the evolution of the MR principle in the offence of murder and cite cases well, you sadly address the specific question in the last part of your essay only.

All the law you cite throughout your answer should be tailored to answer the specific set question and you should state throughout how it does so. Had you have done this, your grade would be higher.

The question was about scope, simply stating the historical evolution of the MR of murder is not enough for a first class grade

First Class: 75


- There is evidence of detailed treatment of the case law and the relevant legal tests;

- There is good focus on the question set and reasonable engagement with the issues rather than simply describing the case law;

- There are some good areas of analysis throughout, especially on the GBH rule;

- The essay is very clearly structured and well presented.

Areas for Improvement

- It would have been beneficial to have had a more developed conclusion.

Other Comments

Overall an excellent attempt.

First Class: 75


Your essay starts with a clear and excellent introduction. You have identified the core debate in the question and signpost to the reader what you are going to discuss. There then follows a well structured and excellent critical analysis of the relevant areas of the law on homicide. There is a coherent argument flowing through the essay and you use your substantive knowledge and understanding well to use examples which contribute to your response to the question. You have also used some of the critical literature in this area as well the case law to again add weight to your arguments. This is an impressive approach and has produced a very well written and well argued essay.

Areas for Improvement

There is little that needs improving in your essay. Just as a suggestion, you may wish to follow up your discussion of Pedain's work by looking at the Scottish law relating to wickedly reckless killings. Comparative examples can be useful to refer to when considering reforms to the current law.

Ungraded: 0

This essay is copied from the Law Teacher website and so no grade can be awarded

Sample Essays

Essay 1 (First Class)

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.

Essay 2 (First Class)

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.