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The Mental Element in the Crime of Murder

Published online by Cambridge University Press:  16 February 2016

Lord Goff
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Lionel Cohen Lecture
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Israel Law Review , Volume 22 , Issue 1 , Winter–Spring 1987 , pp. 1 - 36
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Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 1987

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References

1 The Maccabaean Lecture, “The Search for Principle” (1983) 69 Proceedings of the British Academy 169Google Scholar.

2 Ibid., at 182-183.

3 Smith v. Liltlewood's Organisation Ltd. [1987] A.C. 241, at 280.

4 Supra n. 1, at 184-185.

5 The emergence of murder and manslaughter as distinct offences occurred in the late sixteenth century: see Kaye, , “The Early History of Murder and Manslaughter”, Pt. II (1967) 83 L.Q.R. 569, at 587–601Google Scholar; and Green, , “The Jury and the English Law of Homicide” (1976) 74 Michigan L.R. 414, at 484–487Google Scholar. The re-establishment of a single homicide offence was considered and rejected by the Criminal Law Revision Committee in its 14th Report on Offences Against the Person (1980) Cmnd. 7844, para. 15. Such a change had been suggested by Kilbrandon, Lord in Hyam [1975] A.C. 55, at 98Google Scholar. The New Zealand Criminal Law Reform Committee in its Report on Culpable Homicide (1976) 3–4Google Scholar, also recommended the creation of a single offence of “unlawful killing”. This proposal has not been implemented.

6 See Murder (Abolition of Death Penalty) Act 1965, section 1(1) and the discussion in Williams, , Textbook of Criminal Law (2nd ed., 1983) 245–249Google Scholar. In Britain, recommendations have been made by the Butler Committee on Mentally Abnormal Offenders, (1975) Cmnd. 6244, at paras. 19.14-19.16, and the Advisory Council on the Penal System, in Sentences of Imprisonment: A Review of Maximum Penalties (1978) at para. 256, that the mandatory life sentence should be abolished and a discretionary sentence, with a maximum of life imprisonment, introduced. However the Criminal Law Revision Committee in its 14th Report on Offences Against the Person, (1980) Cmnd. 7844, at paras. 42-61, found themselves “deeply and almost evenly divided” on the issue and therefore felt unable to recommend any change. In Scotland similar suggestions were rejected by the Committee on Penalties for Homicide (1972) Cmnd. 5137. However in New South Wales, the Crimes (Homicide) Amendment Act 1982 introduced a maximum life sentence, and the mandatory life sentence has recently been abolished in Victoria, following recommendations of the Victorian Law Commission (Report No. 1, The Law of Homicide in Victoria: The Sentence for Murder (1985) 3)Google Scholar. Similar proposals have been made by later reform agencies in Canada (Law Reform Commission, Report No. 30, Recodifying Criminal Law (1987) 55)Google Scholar; and New Zealand (Criminal Law Reform Committee, supra n. 5, at 10-11).

7 For a fuller discussion of the history of the term “malice aforethought”, see Stephen, Fitzjames, A History of the Criminal Law of England (1883) vol. 3, pp. 41–46Google Scholar; Perkins, , “A Re-examination of Malice Aforethought” (1934) 43 Yale L.J. 537CrossRefGoogle Scholar; Kaye, , “The Early History of Murder and Manslaughter” (1967) 83 L.Q.R. 365-395 and 569–601Google Scholar (parts 1. and 2); Green, , “The Jury and the English Law of Homicide” (1976) 74 Michigan L.R. 414Google Scholar; Fletcher, , Rethinking Criminal Law (1978) 276–285Google Scholar; The Reports of Sir John Spelman, Baker, , ed. (Selden Society, 1978) vol. 94, pp. 303–305Google Scholar.

8 See Fitzjames Stephen, supra n. 7, at 70; Perkins, supra n. 7, at 537-539.

9 Vickers [1957] 2 Q.B. 664, at 670-671, per Lord Goddard; Hyam, supra n. 5, at 67-68, per Lord Hailsham; Cunningham [1982] A.C. 566, at 576, per Lord Hailsham.

10 The old writers had a wider view of the scope of implied malice. See, for example, Coke's Institutes, Pt. III (1797 ed.) 52Google Scholar; Hole's Pleas of the Crown (1778 ed.) vol. 1, p. 455 (ch. 37)Google Scholar; and Blackstone's Commentaries (4th ed., 1876) vol. 4, p. 200Google Scholar. See n. 11, infra.

11 Prior to the Homicide Act 1957, “… it had for very many years been believed that ‘implied malice’ and ‘constructive malice’ were alternative terms for the same legal concept”: Turner, J.W. Cecil, “Malice Implied and Constructive” [1958] Crim. L.R. 15Google Scholar.

12 “Constructive malice” is abolished by sec. 1 of the 1957 Act, whilst “malice afore-thought (express or implied)” is retained in sec. 1(1). For the modern distinction see further Kenny's Outlines of Criminal Law (19th ed., 1966) 155Google Scholar, and cases cited supra n. 9. Complex felony-murder rules continue to exist in Australia, Canada and New Zealand, although the abolition of “constructive malice” has been recommended by the South Australian Criminal Law and Penal Methods Reform Committee, Report No. 4, The Substantive Criminal Law (1977) 19Google Scholar; the Victorian Law Reform Commissioner, Working Paper No. 8, Murder: Mental Element and Punishment (1984) 10–13Google Scholar; and the Canadian Law Reform Commission, Report No. 30, Recodifying Criminal Law (1987) 54Google Scholar.

13 Supra n. 9, at 672. The appeal was heard by three judges of the Court of Criminal Appeal but, after they could not agree, a full court (Lord Goddard CJ., Hilbery, Byrne, Slade and Devlin JJ.) heard the case and unanimously dismissed the appeal. This direction was approved in Hyam, supra n. 5, at 68, per Lord Hailsham, and Cunningham, supra n. 9, at 581, per Lord Hailsham (see text at nn. 62-66 infra).

14 [1961] A.C. 290.

15 Supra n. 5.

16 [1985] A.C. 905.

17 [1986] A.C. 455.

18 Supra n. 14, at 293-294.

19 Ibid., at 323 (Donovan J.), emphasis added.

20 Ibid., at 326-327.

21 See references in Smith, & Hogan, , Criminal Law (5th ed., 1983) 295Google Scholar, n. 16. Buxton in “Retreat from Smith” [1966] Crim. L.R. 195Google Scholar showed that Smith was being ignored in practice by first instance judges, even prior to the Criminal Justice Act 1967. In Australia, the High Court in Parker (1963) 111 C.L.R. 610, at 632, broke with a tradition of according precedence to decisions of the House of Lords to declare the propositions laid down in Smith to be “misconceived and wrong”. In New Zealand, the legislature removed the phrase “or ought to have known” from sec. 167(d) of the Crimes Act 1961 to ensure that an objectively tested mental state would have no place in their law of murder (see Garrow, and Caldwell, , Criminal Law in New Zealand (6th ed., 1981) 140)Google Scholar.

22 Criminal Justice Act 1967, sec. 8, provides that:

“A court or jury, in determining whether a person has committed an offence:

(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

(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.”

For the view that, strictly speaking, Smith was unaffected by sec. 8, see Smith & Hogan, supra n. 21, at 296.

23 [1987] 2 W.L.R. 1251. It was held that an objective test of intention for the crime of murder had no place in the law of the Isle of Man, even before such a test was abolished by the Isle of Man Evidence Act 1983, sec. 6 (which effectively incorporated sec. 8 of the Criminal Justice Act 1967).

24 But cf. sec. 212(c) of the Canadian Code (derived from Stephen's 1879 codification of the common law) which provides that culpable homicide is murder, “where a person, for an unlawful object, does anything that he knows or ought to know is likely to cause death, and thereby causes death to a human being…”, effectively establishing an objectively determinable mental element. For criticism of this objective standard see Stuart, , Canadian Criminal Law: A Treatise (1982) 208–214Google Scholar and references cited at n. 413.

25 Hyam, supra n. 5, at 65 (Ackner J.), emphasis added.

26 Ibid., at 79, per Lord Hailsham. But see Lord Bridge in Moloney, supra n. 16, at 927, for criticism of this test.

27 Hyam, supra n. 5, at 82, emphasis added.

28 Ibid., at 96, emphasis added.

29 Ibid., at 97.

30 Moloney, supra n. 16, at 906.

31 Ibid., at 916, emphases added.

32 Ibid., at 917.

33 The Times, December 22, 1983 (C.A.).

34 Moloney, supra n. 16, at 920.

35 Ibid., at 927-928.

36 Ibid., at 928.

37 Hancock, supra n. 17, at 458.

38 Supra n. 16, at 929.

39 Hancock [1985] 3 W.L.R. 1014. Verdicts of manslaughter were substituted and the accused were sentenced accordingly.

40 Hancock, supra n. 17, at 473.

41 Ibid., at 474.

42 Supra n. 9.

43 Supra n. 16, at 925, emphasis added.

44 The Criminal Law Revision Committee in its 14th Report, (1980) Cmnd. 7844, para. 115, rejected the proposals of the 1976 Working Paper on Offences against the Person to create a new offence of mercy killing subject to a maximum sentence of 2 years imprisonment, regarding it as too controversial for its programme of law reform. Two law reform agencies in Australia have also declined to intervene in this area (see Law Reform Commissioner of Victoria, Working Paper No. 8 (1984) 30, and Criminal Law and Penal Methods Reform Committee of South Australia, Fourth Report (1977) 58). In Canada “planned and deliberate” mercy killings constitute first degree (aggravated) murder under sec. 214(2) of the Code. However, the Canadian Law Reform Commission recently proposed that, whilst the distinction between first and second degree murder should be retained, “mercy killing” should only constitute the non-aggravated offence (1987 Draft Code (Report No. 30) clause 6(4)(g)). If the Commission's recommendations are followed, first degree murder will continue to be punishable by a fixed penalty of life imprisonment with a minimum 25 year non-parole period, but ordinary murder will carry no fixed or minimum penalty.

45 Supra n. 16, at 926.

46 An example given by Stannard, in “Mens Rea in the Melting Pot” (1986) 37 N.I.L.Q. 61, at 69Google Scholar, which is also discussed in Dennis, , “The Mental Element for Accessories”, in Criminal Law: Essays in Honour of J.C. Smith (London, 1987) 54–55Google Scholar.

47 Criminal Law Revision Committee, 14th Report on Offences Against the Person (1980) Cmnd. 7844, para. 25, p. 11.

48 The American Law Institute's Draft Model Penal Code states in sec. 210.2(1)(a) that criminal homicide is murder if it is committed “purposely” or “knowingly”, with “purposely” defined in terms of the defendant's “conscious object” (sec. 2.02(2)(a)(i)). Similarly, sec. 15.05(1) of the New York Penal Law 1967 (which was derived from the Model Penal Code) defines “intentionally” in terms of the defendant's “conscious objective”.

49 The argument that “intention” is synonymous with “purpose” also arose, in the context of accessory liability, in the House of Lords' case of Gillick v. West Norfolk and Wisbech Area Health Authority [1986] A.C. 112. The case concerned the legality of a circular issued to doctors by the defendants, in which they gave advice on the provision of contraceptive counselling and treatment to girls under 16 years. It was argued that a doctor giving such treatment to a girl of this age would be liable for aiding and abetting the offence of unlawful sexual intercourse. However the trial judge (Woolf J.) distinguished the case of the doctor who intends to encourage sexual intercourse and is therefore liable as an accessory, from the case in which the doctor, while knowing that the offence is likely to be committed, acts solely for the purpose of preserving the girl's health. The meaning of “intention” in this case, as in Moloney and Hancock, would seem to involve an investigation of the defendant's purpose, in the sense of the result which, when he acted, he was seeking to achieve. For a fuller discussion of this point see Dennis, supra n. 46, at 53-55; Stannard, supra n. 46, esp. at 69-70; Duff, , “The Obscure Intentions of the House of Lords” [1986] Crim. L.R. 771Google Scholar; and Halpin, , “Intended Consequences and Unintentional Fallacies” (1987) 7 O.J.L.S. 104CrossRefGoogle Scholar.

50 In 1967 the Law Commission recommended that the mental element in murder should be statutorily defined as an “intent to kill”. A person would have this intention “… if he means his actions to kill, or if he is willing for his actions, though meant for another purpose, to kill in accomplishing that purpose”. Law Com. No. 10, Imputed Criminal Intent (Director of Public Prosecutions v. Smith) (1967), Draft Clause 2(2). This recommendation was never implemented. Stephen's Draft Code of 1879, sec. 174, provided that an actor is guilty of murder if he (a) means to cause the death of the victim or if he (b) means to cause the victim any bodily injury which he knows is likely to cause death, being reckless as to whether death ensues or not. This formulation was substantially adopted in Canada (sec. 212(a)(i) and (ii) of the Criminal Code) and New Zealand (sec. 167(a) and (b)ofthe Crimes Act 1961). See further Stuart, supra n. 24, at 123-130; Garrow and Caldwell, supra n. 21, at 139-140.

51 First Book of Kings: ch. 22, v. 34.

52 [1964] A.C. 644, at 664.

53 However, if there is no other evidence from which the jury may infer that the defendant intended to kill the deceased than the inference from his foresight of the consequences of his act, it may be unsafe for the jury to draw that inference, unless satisfied that the defendant was virtually certain that death would result from his act; (see Nedrick [1986] 1 W.L.R. 1025, at 1028, per Lord Lane C.J.). Cases where there is no other material which may assist the jury in deciding whether the necessary intent has been proved are likely to be rare.

54 Supra n. 17, at 473.

55 See the text at n. 43, supra.

56 See, for example, Prof.Smith's, J.C. commentary on Moloneyat [1985] Crim. L.R. 378, at 379Google Scholar; Duff, supra n. 49.

57 Williams, supra n. 6, at 84-85 (footnotes omitted).

58 Cf., however, the meaning given to “intent to kill” by the Law Commission, supra n. 50. Canada, Australia and New Zealand, whose murder provisions derive from the common law, accept a wider deflnition of intent. The Canadian Law Reform Commission in cl. 2(4)(b)(ii)(B) of the 1987 Draft Code (Report No. 30) p. 20, defined “purposely” to include situations (such as Prof. Williams' aircraft example cited above) where “D causes V's death which he does not desire, as a necessary step to some other objective, which he does desire” (at 54). In the Australian States, there is some controversy as to whether consequences foreseen as certain to result are synonymous with intended consequences, or merely evidence from which intent can be inferred (see Howard, , Criminal Law (4th ed., 1982) 41Google Scholar and Campbell, , “Recklessness in Intentional Murder Under the Australian Codes” (1986) 10 Crim. L.J. 3, at 14)Google Scholar. See also Garrow and Caldwell, supra n. 21, at 475. Under the U.S. Model Penal Code, sec. 210.2(1)(a), criminal homicide is murder when it is committed purposely or knowingly, with “knowingly” defined in sec. 2.02(2)(b)(ii) to include results known by the accused to be the “practically certain” outcome of his conduct.

59 Cf., Nedrick, supra n. 53, at 1028, per Lord Lane C. J., who said that, where the accused recognises that death or serious harm would be virtually certain to result from his act, the jury might find it easy to infer that he intended that result, even if he did not desire it.

60 See supra n. 57.

61 Colonel Sebastian Moran, formerly 1st Bengalore Pioneers (described by Sherlock Holmes as “the second most dangerous man in London“), attempted to kill Holmes in his rooms by shooting him with an air rifle from the other side of Baker Street. However, unknown to Colonel Moran, the target was actually a waxwork of the great detective who, at the time of the shot, was standing with Dr. Watson behind the Colonel waiting to make the arrest. (See The Adventure of the Empty House by SirDoyle, Arthur Conan, reprinted from the Strand Magazine (1903) in The Return of Sherlock Holmes (1905)Google Scholar.)

62 Supra n. 5, at 86. Lord Diplock considered (ibid., at 87-89) that this form of malice aforethought arose from Lord Ellenborough's Act 1803 (43 Geo. 3, c.58) which had made the intentional infliction of grievous bodily harm resulting in death a felony-murder under the doctrine of constructive malice and had therefore been abolished by the Homicide Act 1957, sec. 1. See further Turner, J.W. Cecil, “Malice Implied and Constructive” [1958] Crim. L.R. 15Google Scholar, and references at supra n. 7.

63 Hyam, supra n. 5, at 93.

64 Supra n. 9, at 577-578, per Lord Hailsham.

65 Supra n. 14, at 334.

66 See Cunningham, supra n. 9, at 574, per Lord Hailsham, and similar statements in Hyam, supra n. 5, at 68-69, per Lord Hailsham, and at 85, per Viscount Dilhorne; Belfon [1976] 1 W.L.R. 741, at 743, per Wien J. See generally Smith and Hogan, supran. 21, at 293. Similar statements are to be found in the Australian common law states: see Hallett [1969] S.A.S.R. 141Google Scholar; Sergi [1976] V.R. 1Google Scholar; but cf. Howard, supra n. 58, at 50 who argues that the meaning may be narrower, encompassing only those injuries likely to cause death.

67 See the arguments of Lord Diplock in Hyam, supra n. 5, at 90-91, and of Lord Edmund-Davies in Cunningham, supra n. 9, at 582-583. See also Russell on Crime (12th ed., 1964) vol. 1, at 489Google Scholar; Williams, Glanville, The Mental Element in Crime (Jerusalem, 1965, no. 11Google Scholar in a series of Lionel Cohen Lectures delivered in 1957-1978, published by the Hebrew University of Jerusalem) 80-84; Glanville Williams, supra n. 6, at 250-251. Many of these arguments are reflected in the recommendations for abolition of this head of culpability by the law reform agencies of Victoria and South Australia. Instead they propose limiting the mental element in murder to an “intention” or “purpose” to kill, or situations where the defendant knows that there is “a substantial risk of causing death” (Victoria, Working Paper No. 8 (1984) 21) or a “high likelihood that his actions will cause death” (South Australia, Fourth Report, page 8). Cf, R. S. Wright's Code of Criminal Law and Procedure 1877 (Draft Criminal Code for Jamaica) in which the intent to do grievous bodily harm is excluded from the murder provisions, with the offence being defined simply as “intentionally causing the death of another person by any unlawful harm”. For further discussion of Wright's Code see Friedland, , “R.S. Wright's Model Criminal Code: A Forgotten Chapter in the History of the Criminal Law” (1981) 1 O.J.L.S. 307CrossRefGoogle Scholar; and Linden, , “Toward a New Criminal Code for Canada” in pitzgerald, ed., Crime, Justice and Codification (1986) 167Google Scholar.

68 See text at supra n. 47.

69 Criminal Law Revision Committee, 14th Report on Offences Against the Person (1980) Cmnd. 7844, at 129. Similarly, in both Canada and New Zealand, killing by intentionally causing bodily harm is murder only if the actor knows that his act is likely to cause death, and is also reckless as to whether death ensues or not (see sec. 212(a)(ii) Canadian Code and sec. 167(b) New Zealand Crimes Act 1961).

70 Criminal Law Revision Committee, 14th Report (1980) 129.

71 Cf., sec. 157(c) Tasmanian Criminal Code 1924 which states that culpable homicide is murder where it is committed:

… by means of any unlawful act or omission which the offender knew, or ought to have known, to be likely to cause death in the circumstances, although he had no wish to cause death or bodily harm to any person.

“Ought to have known” in this context was held by the High Court in Boughey (1986) 60 A.L.J.R. 422, at 429Google Scholar, per Mason, Wilson and Deane JJ., to require a subjective assessment of what the particular accused, with his actual knowledge and capacity, ought to have known, had he stopped to contemplate the consequences of his conduct.

72 See Gordon, , The Criminal Law of Scotland (2nd ed., 1978) 739Google Scholar, who stresses the importance of the accused's knowledge of his victim's infirmity in establishing culpability for murder. See also the Indian Penal Code, sec. 300(2), which provides that culpable homicide is murder – “If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused”.

73 See also Fletcher, supra n. 7, at 267-268.

74 See n. 82, infra.

75 Supra n. 5, at 77 and 79. See also Smith, supra n. 14, at 327, per Viscount Kilmuir.

76 Supra n. 16, at 927.

77 Ibid., at 920. See also Criminal Law Revision Committee, 14th Report on Offences Against the Person (1980) Cmnd. 7844, at para. 26, which argued that recklessness, of whatever degree, should not be a sufficient mental element for murder.

78 See text at nn. 84, 85, infra. In the Australian common law jurisdictions of South Australia and Victoria, the High Court of Australia has accepted that recklessness constitutes part of malice aforethought for the mental element of murder (see Crabbe (1985) 59 A.L.J.R. 417Google Scholar). A more limited form of reckless murder exists in New South Wales under the Crimes Act 1900, sec. 18(1)(a). For a detailed discussion of reckless murder under the Australian Codes, see Elliott, , “Recklessness in Murder” (1981) 5 Crim. L.J. 84Google Scholar and Campbell, supra n. 58. For the position in Canada and New Zealand see supra n. 69.

79 Williams, supra n. 6, ch. 5, p. 96.

80 Ibid. The House of Lords has recently adopted a more objective meaning of “recklessness”: see Caldwell [1982] A.C. 341 and Seymour [1983] 2 A.C. 493. These decisions have not escaped criticism; see e.g., Williams, Glanville, “Recklessness Redefined” (1981) 40 C.L.J. 252CrossRefGoogle Scholar, and “Divergent Interpretations of Recklessness” (1982) 132 N.L.J. at 289, 313 and 336Google Scholar; Griew, , “Reckless Damage and Reckless Driving: Living with Caldwell and Lawrence” [1981] Crim. L.R. 743Google Scholar; Syrota, , “A Radical Change in the Law of Recklessness” [1982] Crim. L.R. 97Google Scholar. For the purpose of many crimes in the Offences Against the Person Act 1861 the required mental element is “maliciously”. This was explained in Cunningham [1957] 2 Q.B. 396 as including recklessness, but in a subjective sense. It seems that Caldwell and Seymour do not contain any redefinition of “maliciously”, which remains a subjective concept.

81 Cf., Lawrence [ 1982] A.C. 510. For similar Scots law see Allan v. Patterson 1980 S.L.T. 77, which was approved in Lawrence.

82 The American Law Institute's Model Penal Code also provides that reckless homicide is only manslaughter (sec. 210.3(1)(a)). But see infra n. 94.

83 See text at supra n. 57.

84 Gordon, supra n. 72, at 732. See also Scottish Law Commission, Report No. 80 (1983), paras. 2.14-2.15.

85 Macdonald, , Criminal Law (5th ed., 1948) 89Google Scholar.

86 Ibid., at 91.

87 1968 S.L.T. 330.

88 Ibid., at 332. But cf., at 331 per Lord Justice-General Clyde, and at 333 per Lord Cameron.

89 Burnett, , Criminal Law of Scotland (1811) 4Google Scholar; Alison, , Criminal Law (1832) vol. I, p. 1Google Scholar; Anderson, , Criminal Law of Scotland (1892) 70Google Scholar. Suggestions have been made in the past that it will always be murder when the accused kills, either using a dangerous weapon or during the commission of another serious offence, particularly robbery. See e.g., Miller v. Denovan (1960) High Court (unreptd. – transcript of judge's charge, pp. 30-31); H.M.A. v. McGuinness 1937 J.C. 37, at 40, per Aitchison L.J.-C. – “If people resort to the use of deadly weapons of this kind, they are guilty of murder, whether or not they intended to kill“; Kennedy v. H.M.A. 1944 J.C. 171, at 174 per Lord Carmont. However, the better view seems to be that such cases are merely examples of fact situations from which wicked recklessness can easily be inferred and do not introduce any separate and distinct rules into the Scots crime of murder. See generally Gordon, supra n. 72 at 737-747, and the Scottish Law Commission, Consultative Memorandum No. 61, Attempted Homicide (1984), paras. 3, 5 and 3.7-3.9

90 Hume, , Commentaries on the Law of Scotland (4th ed., 1844) vol. I, p. 257Google Scholar. See also Gordon, supra n. 72, at 738, and 1968 S.L.T. (News.) 41, at 43-44.

91 Gordon, ibid., at 735-736.

92 Glasgow High Court, January 1976 (Transcript of Judge's charge).

93 Gordon, supra n. 72, at 214 and 737-738 stresses that the concept of “wickedness” is concerned more with moral judgments than defining technically the mental elements for specific offences.

94 See Hume, supra n. 90, at Vol. 1, p. 256; Alison, supra n. 89, at Vol. 1, p. 1. In H.M.A.v. Rutherford 1947 S.L.T. 3, at 4, per Cooper L.J.-C. – “The essence of murder is that the accused should have acted deliberately with intent to kill, or at least with reckless indifference as to the consequences of his violence upon his victim” – a statement of the law which avoids the use of the term “wicked”.

Under the American Law Institute's Model Penal Code, criminal homicide does constitute murder when it is “… committed recklessly under circumstances manifesting extreme indifference to the value of human life” (sec. 210.2(1)(b)). According to the Commentary to the Code (at p. 21):

Whether recklessness is so extreme that it demonstrates… [indifference to the value of human life] must be left directly to the trier of the fact under instructions which make it clear that recklessness that can fairly be assimilated to purpose or knowledge should be treated as murder and that less extreme recklessness should be punished as manslaughter.

This type of test is used in a number of U.S. States and focuses the attention of the jury on the probability of harm occurring and the social utility of the defendant's act. Thus firing a gun at a house, train or moving car in the knowledge that human beings will thereby be endangered has been held to constitute murder, whilst causing death as a result of excessive risk-taking when driving is more likely to amount only to manslaughter. See Fletcher, supra n. 7, at 264-266; Michaels, , “Defining Unintended Murder” (1985) 85 Colum. L.R. 786CrossRefGoogle Scholar.

95 But the courts in Canada and New Zealand in interpreting their reckless murder provisions, have insisted that the defendant's knowledge of the risk of death must coincide with the performance of the fatal act (see Ramsey [1967] N.Z.L.R., 1005Google Scholar; Nathan [1981] 2 N.Z.L.R. 473Google Scholar; Simpson (1981) 20 C.R. (3d) 36)Google Scholar.

96 See, e.g., Pigg [1983] 1 W.L.R. 6Google Scholar. “Indifference” in this context is a subjective concept, and in Kimber [1983] 1 W.L.R. 1118Google Scholar, at 1123 Lawton L.J. explained it by the colloquial expression “couldn't care less”. In Satnam and Kewal (1983) 78 Cr.App.R. 149Google Scholar it was pointed out by the Court of Appeal (Criminal Division) that the word “indifferent“ without further explanation may be ambiguous in that it can be understood objectively. So far as rape was concerned, the Court held that the statutory definition required a subjective test. (For further discussion of “indifferent” see ProfessorSmith's, J.C. commentary in [1977] Crim. L.R. 166Google Scholar on Stone and Dobinson [1977] 1 Q.B. 354Google Scholar.)

97 Supra n. 14.

98 Supra n. 5.

99 Supported in Moloney, supra n. 16, at 913 by Lord Hailsham. But cf., Duff, supra n. 49, at 775-776.

100 Supra n. 16.

101 Supra n. 17.

102 Under the U.S. Model Penal Code, the intention to do grievous bodily harm has no express significance, but is subsumed within the wider categories of “extreme indifference” murder (sec. 210.2(1)(b)) or reckless manslaughter (sec. 210.3(1)(a)) (The American Law Institute, Model Penal Code and Commentaries (1980) 28-29). In New York, an “intent to cause serious physical injury”, under sec. 125.20(1) of the Penal Law 1967, only creates liability for first degree manslaughter (see Gegan, , “A Case of Depraved Mind Murder” (1975) 49 St. John's L.R. 417, esp. at 438–440Google Scholar).

103 Gordon, supra n. 72, at 223-224, approves this conclusion.

104 See Stannard, supra n. 46, at 70-71; Duff, supra n. 49, at 778; Halpin, supra n. 49, at 114; which support the argument that the mens rea of murder should be widened but without artificially extending the meaning of “intention”.

105 See Gordon, , 1968 S.L.T. 41 (News)Google Scholar.

106 See Scottish Law Commission, Report No. 80, The Mental Element in Crime, paras. 2.34-2.36 and Consultative Memorandum No. 61 on Attempted Homicide (1984) at para 3.4, which highlight the small number of appeals concerning the mental element in murder under Scots law, when compared to the rest of Britain. But cf., “Forensis“ (1986) J.L.S.S. 354, at 355Google Scholar.

107 See supra n. 93.