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Criminal | Offences Against The Person

Murder: Mens Rea

Study Note | A Level

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Murder is a common law offence which has not been defined by statute. Sir Edward Coke’s seventeenth century definition: ... the unlawful killing of a reasonable person in being and under the King’s peace with malice aforethought, express or implied.. is widely referenced. The actus reus is described by the first part and mens rea by the second.

Malice Aforethought

The mens rea of murder as stated by Sir Edward Coke requires one element to be satisfied: malice aforethought, whether express or implied. Case law has further developed the meaning of mens rea.

Gray (1965)

Defendant, the victim’s parent, gave their child a fatal overdose as the child was suffering a severely painful terminal illness. Defendant guilty of murder, meaning there is no specific requirement for malice to be present.

Aforethought does not require thinking or planning beforehand just that the intention to kill does not happen after the act.


The mens rea of unlawful killing is satisfied by the intention to kill or cause grievous bodily harm.

Serious bodily harm

Vickers (1957)

Defendant broke into shop cellar. Defendant attacked the elderly female owner who died from her injuries. It was held the intention to inflict serious bodily harm was sufficient to impose liability for murder.

Cunningham (1981)

Defendant hit victim over the head with a stool and victim died from head injuries. House of Lords held intention to cause really serious harm was sufficient for murder.

Foresight of consequences

Express intention is straightforward, a defendant shots the victim aiming to kill him. Intention may also be implied by the defendant acting to cause serious harm which results in death.

However, difficulties arise when the defendant’s main aim is not to kill or cause serious injury, known as oblique intention. This brings into question the defendant’s foresight, how far can intention to kill or cause serious injury be inferred from the defendant foreseeing such consequences of his action?

    Development of meaning

  • Criminal Justice Act 1967

    S8 A court or jury, in determining whether a person has committed an offence,-
    S8(a) shall not be bound in law to infer that he intended or foresaw a result of his actions by reason only of its being a natural and probable consequence of those actions; but
    S8(b) shall decide whether he did intend or foresee that result by reference to all the evidence, drawing such inferences from the evidence as appear proper in the circumstances.

  • Moloney (1985)

    Defendant had been drinking with the victim, his stepfather. As a joke they challenged each other to see who was the fastest to load a gun. Defendant won and pulled the trigger, killing the victim. Defendant argued he had no intention to injure or kill the victim and that they were playing a game. Defendant was convicted of murder.

    House of Lords reduced his conviction to manslaughter. Finding that the mere foresight of probable death was not sufficient for intention, although it could be used to infer intention by the jury.

  • Hancock and Shankland (1986)

    Defendants were miners on strike. To try to prevent others from going to work they pushed a concrete block from a bridge onto the road below to block an access route. The victim, a taxi driver, was driving a worker to the mine when the block hit his vehicle. The trial judge used Moloney (1985) to direct the jury and the defendants were convicted of murder.

    House of Lords accepted the defendants' argument their intention was to block the road only and substituted the conviction for one of manslaughter. It was held that the degree of probability of death or injury was of paramount importance. The following guidelines for jury instruction were given: the greater the probability of a consequence, the more likely the consequence was foreseen, if it was foreseen the more likely it was intended.

  • Nedrick (1986)

    Defendant poured paraffin through a woman’s letterbox and set it alight intending to frighten her. The victim, her child, died in the fire. Jury found the defendant guilty of murder.

    Court of Appeal quashed the conviction and found the defendant guilty of manslaughter. Lord Lane: .. the jury should be directed that they are not entitled to infer the necessary intention unless they feel sure that death or serious bodily harm was a virtual certainty as a result of the defendant’s actions and that the defendant appreciated that such was the case.... Court of Appeal suggested that in order to apply the law, juries should question: Was the consequence resulting from the defendant’s voluntary act a virtual certainty? And did the defendant foresee that the consequence was a virtual certainty? If yes, then a jury could reasonably infer that the defendant intended the consequence of his act.

  • Woolin (1998)

    Defendant was feeding his three month old son. The baby choked, the defendant lost his temper and threw the baby towards his pram. The baby hit the wall and suffered fatal head injuries. Defendant did not have direct intention.

    House of Lords approved the direction given in Nedrick (1986) provided the word find was used instead of infer. House of Lords seemed to agree with the Court of Appeal that foresight of consequence amounts to intention, despite ruling this was not necessarily the situation in Moloney (1985).

  • Matthews and Alleyne (2003)

    Defendants pushed the victim into a river from a bridge, knowing he could not swim. Defendants watched him head towards the bank but did not stay to see if he got out. The victim drowned.

    Court of Appeal stressed the defendant’s appreciation of death or serious bodily harm as a virtual certainty does not meet the necessary intention for murder. The Court considered foresight of consequences to be more like a rule of evidence, from which the jury may choose whether to infer necessary intention.


A person commits murder when he kills another with the necessary intent. Intention to kill or cause serious bodily harm is required. Foresight of consequences may be used, like evidence, by the jury to infer intent.

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