Criminal Law: Malice Aforethought

Topics: Murder, Criminal law, Grievous bodily harm Pages: 14 (4647 words) Published: March 3, 2013
READING: Dine and Gobert, Cases and Materials, pp.234-235 AND 124-134. Read in full the following cases: R v Moloney [1985] 1 AC 905 House of Lords, R V Hancock and Shankland [1986] 1 AC 455 House of Lords, R v Nedrick [1986] 3 All ER 1 Court of Appeal*, R v Woollin [1997] Cr App R 97, Court of Appeal, Woollin [1998]3 W.L.R. 382 , House of Lords.* Law Commission, Draft Criminal Code Bill.

G. Williams, ‘Oblique Intention’ [1987] CLJ 417.
Lord Goff, ‘The Mental element in the crime of murder’ (1988) 104 LQR 30. A. Norrie, ‘Oblique intention and legal politics’ [1989] Crim LR 793. R. Duff, ‘The politics of intention: a response to Norrie’ [1990] Crim LR 637. J. C. Smith, ‘A note on intention’ [1990] Crim LR 85.*

A. Norrie, 'After Woollin', [1999] Crim LR 582.
Official website documents regarding Judgements of the House of Lords, Consultation documents from the Lord Chancellor's department and information from the Home Office can be found at url http://

The mental requirement for a charge of murder is that the accused has the intention to kill any person or an intention to cause grievous bodily harm to any person. The concept of intention has a dual meaning in this area. It can mean that the accused desires the consequences of his conduct as where a person stabs another person to death with the intention that the deceased is killed. This type of intention is called specific intent It can also mean that the accused does not desire to kill but nevertheless the result of his or her conduct is that the a person is dead. This is called oblique intent. In this instance the courts have said that even though the accused did not intend to kill, ‘if at the material time the defendant recognised that death or serious harm would be virtually certain (barring unforseen intervention) to result from his or her voluntary act, then this is a fact from which a jury could infer that the defendant intended to kill or do serious bodily harm RECAP: WHAT IS MALICE AFORETHOUGHT?

It is the mental state required on a charge of murder. There must be evidence that the defendant had specific or oblique intent. The law on intention has developed in a peculiar way. One can only understand this development by an exploration of the cases. The main cases in this area are Moloney, Hancock and Shankland, Nedrick and R v Woollin. MOLONEY

In this case Moloney and his stepfather drank heavily at a wedding anniversary. After the guests had gone Moloney and his stepfather got two shotguns and cartridges. Moloney was the first to load. Stepfather dared Moloney to fire. Stepfather was killed. Moloney claimed that he did not aim the gun he only pulled the trigger! The judge at first instance instructed the jury:-

When the requires that something must be proved to have been with a particular intent, it means this: a person intends the consequences of voluntary act (a) when he desires it to happen, whether or not he foresees that it probably will happen and (b) when he foresees tat it will probably happen, whether or not he desires it or not. Moloney was convicted and unsuccessfully appealed to the Court of Appeal. On appeal to the House of Lords:- Lord Bridge: The golden rule is not to elaborate on the meaning of intent unless it is absolutely necessary, to leave it to the good sense of the jury to decide whether or not the defendant acted with the necessary intent. This does not mean that a judge cannot direct a jury that intention is something quite distinct from motive or desire. An example : where a person boards a plane bound for Manchester, clearly he /she intends to travel to Manchester, even though it is the last place he/she wants to be and the motive for boarding the place is simply to escape pursuit. The person demonstrates his intention to go there because it is a moral certainty that this is where the plane will arrive. To the question of foresight of the...
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