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Murder - the mens rea

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The Mens Rea of murder

Malice aforethought

‘Malice aforethought’ is the same as ‘Intent’. Vickers (1957)

Therefore intention is a key to proving murder.


Not ill-will, wickedness or premeditation.

"Malice aforethought" (intention) does not require ill will towards the victim nor premeditation nor has it anything to do with wickedness.  It can be either:

(a) an intention to kill; or
(b) an intention to cause grievous bodily harm.

Motive is not intention

If I kill you for your money, my intention is to kill you but my motive is to obtain your money. 
If I kill you from the motive of compassion - mercy killing - I still intend to kill you and the crime is one of murder.


However, motive is relevant in cases and these appear to be an exception to the rule, see Airedale NHS Trust v Bland [1993] HL


Also, three specific and partial defences to murder; suicide pact, provocation and diminished responsibility are in effect relevant to motivation, because the defendant is agreeing he intended to kill, but he had a reason.


Lord Mustill’s concept of "indiscriminate malice"

"I pause to distinguish the case of indiscriminate malice from ... [grievous bodily harm and transferred malice rules] ... although even now it is sometimes confused with them. The terrorist who hides a bomb in an aircraft provides an example. This is not a case of "general malice" where under the old law any wrongful act sufficed to prove the evil disposition which was taken to supply the necessary intent for homicide. Nor is it transferred malice, for there is no need of a transfer. The intention is already aimed directly at the class of potential victims of which the actual victim forms part. The intent and the actus reus completed by the explosion are joined from the start, even though the identity of the ultimate victim is not yet fixed. So also with the shots fired indiscriminately into a crowd. No ancient fictions are needed to make these cases of murder."

Intention may not be a desired outcome

The outcome may not be D's


Nedrick, R v (1986) CA

"Where a man realises that it is for all practical purposes inevitable that his actions will result in death or serious harm, the inference may be irresistible that he intended that result, however little he may have desired or wished it to happen" per Lord Lane


Moloney, R v (1985) HL

"I didn't want to kill him. It was kill or be killed. I loved him, I adored him." Moloney (and below)


Nedrick, R v (1986) CA

"I didn't want anyone to die, I am not a murderer..." Nedrick


Hyam v DPP (1975) HL

 ‘[A] man may desire to blow up an aircraft in flight in order to obtain insurance moneys. But if any passengers are killed he is guilty of murder, as their death will be a moral certainty if he carries out his intention.’

Nedrick, R v (1986) CA (above)



Moloney, R v (1985) HL

"A man who at London Airport, boards a plane which he knows to be bound for Manchester, clearly intends to travel to Manchester, even though Manchester is the last place he wants to be and his motive for boarding the plane is simply to escape pursuit." per Lord Bridge

Indirect or oblique intention

Section 8 Criminal Justice Act 1967

S.8 requires that a jury shall not be bound to infer whether a defendant intended or foresaw a result of actions by reason only of its being a natural and probable consequence but shall decide by reference to all the evidence.

This has been interpreted as requiring a jury to consider only the subjective state of mind of the accused.


Reference to the consequences being "natural and probable" met with disapproval by Lord Bridge in Moloney). It is straightforwardly subjective and must be put to the jury in such terms - what did the defendant intend?

The wording of s.8 prohibits drawing a conclusion about the accused's mental state only by reason of it being the natural and probable consequence.


The word "only" seems to suggest that the jury can follow a line of reasoning that entitles them to draw a conclusion about the accused's mental state from the objective view of the reasonable man.


If they reason that the reasonable person might have intended the consequence they must, nevertheless, be satisfied that the defendant did.


Moloney, Hancock and Shankland, and Nedrick

Confirmed by



Referred to as the 'line of cases' are the main Mens Rea cases in murder, they tell us what intention, particularly indirect/oblique means.

Moloney, R v (1985) HL

Tells us about the relationship between foresight of consequence and proof of intention. The significance of the case is that a prudent jury might well argue that Moloney had foresight of consequences.


Did Moloney foresee that the death of his stepfather was a "natural consequence" of his actions? The answer seems not.


If D did not wish or desire the consequences of his actions the judge will have to direct on oblique intention.


Hancock and Shankland (1986) HL

Murder convictions overturned, manslaughter substituted, because the defendants had not intended to bring about death.

Though death was a probability it was not a "natural consequence".


Nedrick (1986) CA

supports Hancock and Shankland


The facts of which were essentially the same as in Hyam, but paraffin this time.

The principles coming from it being:

Lord Lane approved Lord Scarman's speech in Hancock where he said: 

"... the greater the probability of a consequence the more likely it is that the consequence was foreseen and that if that consequence was foreseen the greater the probability is that that consequence was also intended."  

In other words, evidence of foresight, is evidence of intent.


When determining whether the defendant had the necessary intent, it may therefore be helpful to ask
(1) How probable was the consequence which resulted from the defendant's voluntary act?
(2) Did he foresee that consequence? 


"Natural consequence" becomes virtual certainty which is a matter for the jury to consider in seeking whether death was intended.


Can we forget every case except Nedrick then?

No. The rules in Hyam, Moloney, and Hancock and Shankland have been developed and we need to extract from them the meaning of Nedrick.


In Nedrick Lord Lane gave a model direction a Judge should use when instructing a jury in the rare event a direction on oblique intent is necessary.


What about Woollin

Made slight amendments to the direction in Nedrick.


Defendant's wish different from outcome

If the evidence is that the defendant’s wish may have been something other than to cause the result in question then R v Nedrick and R v Walter and Hayles apply.



Lord Lane's model direction in Nedrick

Lord Lane's direction refined in Woollin

The Jury are entitled to "infer"

the necessary intention if death or serious bodily harm was a virtual certainty (barring some unforeseen intervention)

and that he appreciated that that was the case.


The jury are "entitled to find"


the necessary intention if death or serious bodily harm had been a virtual certainty (barring some unforeseen intervention)


and that the defendant appreciated that such was the case,


the decision being one for them to be reached on a consideration of all the evidence;


The actual words used were:

...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 (barring some unforeseen intervention) as a result of the actions of the accused and that he appreciated that that was the case


...the jury should be directed that they were not entitled to find the necessary intention for a conviction of murder unless they felt sure that death or serious bodily harm had been a virtual certainty (barring some unforeseen intervention) as a result of the defendant's actions and that the defendant had appreciated that such was the case, the decision being one for them to be reached on a consideration of all the evidence;



Transferred malice

  • It could be murder if the killer intended to murder one person, but killed another instead

  • When a person kills whilst committing a crime or avoiding arrest, it would not be murder unless there was an intention to kill or inflict serious bodily harm R v Hancock and Shankland (1985).

Transferred malice, allegedly a true story from USA

A man, intent on suicide, jumps from the ninth floor of his apartment block. Unknown to him, his wife is on the floor below, having a heated quarrel with her son. She draws a gun and fires at the son, intending to kill him. She misses, the bullet flies out of the window and hits - and kills - her descending husband. Is she guilty of murder? This was a real US case, I'm told. The answer: Yes, if you mean to kill A and kill B instead, it's murder, even if B was going to die anyway in a few seconds. I feel sorry for B, clearly wanting to be a suicide, instead of a murder statistic.


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