Read the following text, paying particular attention to the highlighted words.
Requirements for Murder
In English criminal law there are now two alternative fault requirements for murder: an intent to kill, or an intent to cause grievous bodily harm. What do these requirements mean? Do they extend the definition of murder too far, or are they too narrow.
Intent to kill may be regarded as the most obvious and indisputable form of fault element for murder, but to some extent that depends on the meaning of "intent". This has been the subject of a number of House of Lords decisions, and yet the definition is still not clear and settled. Probably the most accurate statement would be that a person intends to kill if it is his or her purpose to kill by the act or omission charged, or if he or she foresees that death is practically certain to follow from that act or omission. In this way, both purpose and foresight of practical certainty are regarded as part of the definition of intent, although there are other statements suggesting that foresight of practical or "virtual" certainty is merely evidence from which intent may be inferred. How would this test be applied? In many cases the word "intent" is used without elaboration, but there are some for which a full explanation of the meaning of intention is necessary. A fairly typical set of facts is provided by Nedrick (1986), where D had a grudge against a woman and had threatened to "burn her out". One night he went to her house, poured paraffin through the letter-box and on to the front door, and set it alight. One of the woman's children died in the ensuing fire. When asked why he did it, D replied: "Just to wake her up and frighten her." A defence of this kind, a claim that the purpose was only to frighten and not to cause harm, requires the full definition to be put to the jury. The question is: granted that D's purpose was to frighten, did he nonetheless realize that it was practically certain that his act would cause death or grievous bodily harm to someone? The jury should answer this by drawing inferences from the evidence in the case and from the surrounding circumstances.
What about the alternative element in the definition, an intent to cause grievous bodily harm? This has considerable practical importance, since this is all that the prosecution has to prove in order to obtain a verdict of guilty of murder. It must be shown that the defendant intended (which, again, includes both purpose and awareness of practical certainty) to cause really serious injury to someone. The House of Lords confirmed this rule in Cunningham (1981): D struck his victim on the head a number of times with a chair, causing injuries from which the victim died a week later. D maintained throughout that he had not intended to kill, but there was evidence from which the jury could infer - and did infer - that he intended to cause grievous bodily harm. The House of Lords upheld D's conviction for murder: an intent to cause really serious injury is sufficient for murder, without any proof that the defendant intended, or even contemplated, the possibility that death would result.
Does the "grievous bodily harm" rule extend the definition of murder too far? If the point of distinguishing murder from manslaughter is to mark out the most heinous group of killings for the extra stigma of a murder conviction, it can be argued that the "grievous bodily harm" rule draws the line too low. In terms of principle, the rule requires justification because it departs from the principle of correspondence, namely that the fault element in a crime should relate to the consequences prohibited by that crime. By allowing an intent to cause grievous bodily harm to suffice for a murder conviction, the law is violating a general principle, turning the most serious of its offences into a constructive crime. Why should it be necessary to "construct" a murder conviction out of this lesser intent? There are arguments in favour of this: death is final, murder is the gravest crime, and there is no significant moral difference between someone who chooses to cause really serious injury and someone who sets out to kill. No one can predict whether a serious injury will result in death - that may depend on the victim's physique, on the speed of an ambulance, on the distance from the hospital, and on a range of other medical and individual matters. If one person chooses to cause serious injury to another, it should be presumed that he or she realizes that there is always a risk of death, and such cases show a sufficiently wanton disregard for life as to warrant the label "murder" if death results. The counter-arguments, which would uphold the principle of correspondence, are that breach of that principle is unnecessary when the amplitude of the crime of manslaughter lies beneath murder, and also that the definition of grievous bodily harm includes a number of injuries which are most unlikely to put the victim's life at risk. In the leading case of Cunningham Lord Edmund-Davies (dissenting) gave the example of breaking someone's arm: that is a really serious injury, but one which is unlikely to endanger the victim's life. So in practice the "grievous bodily harm" rule goes further than the arguments of its protagonists would support.
Would it be right, then, to confine the fault element in murder to an intent to kill? That would have the merit of simplicity, but would it strike the right note socially? There are powerful arguments in favour of saying that there are other killings where an intent to kill cannot be established, and yet where the moral or social culpability is equal to that in most intentional killings. Of course, one cannot be adamant about whether they merit the label "murder", because that is a question of drawing the line between murder and manslaughter, which is not susceptible of any precise resolution. It is hard to argue conclusively that the category of murder should be smaller or larger (unless the death penalty or a mandatory life sentence follows); it is a question of social judgment.
Let us briefly consider some of the possibilities. The fault element for many serious offences is intent or recklessness: why should this not suffice for murder? The question is whether all killings in which the defendant is aware of the risk of death are sufficiently serious to warrant the term "murder". One answer sometimes given is that they are not, because a driver who overtakes on a bend, knowingly taking the risk that there is a car travelling in the opposite direction, should not be labelled a murderer if a collision and death happen to ensue. This example assumes that a sympathy for motorists with overwhelm any tendency to logical analysis. One might ask whether motorists are ever justified in knowingly taking risks with other people's lives. Yet if the example is modified a little, so that the overtaking is on a country road at night and the risk is known to be slight, it becomes questionable whether the causing of death in these circumstances should be labelled in the same way as intentional killings. This is not to suggest that motorists should be treated differently. The point is rather that, even though knowingly taking risks with other people's lives is usually unjustifiable, taking a slight risk is less serious than intentionally causing death. In discussing the boundaries of murder, we are concerned with classification, not exculpation.
To classify all reckless killings as murder might be too broad, but the point remains that some reckless killings may be thought no less heinous than intentional killings. Can a satisfactory line be drawn here? One approach would be to draw the line by reference to the degree of probability. Murder is committed in those situations where D caused death by an act or omission which he knew had death as the probable or highly probable result. A version of this test of foresight of high probability is used in several other European countries; it was introduced into English law by the decision in Hyam v. DPP (1975), but abandoned in Moloney (1985) on grounds of uncertainty.
A second approach is to frame the law in such a way as to make it clear that the court should make a moral judgment on the gravity of the defendant's conduct. Section 210.2 of the Model Penal Code includes within murder those reckless killings which manifest "extreme indifference to the value of human life". Scots law treats as murder killings with "wicked recklessness", a phrase which directs the court's attention to the circumstances of the killing. Both the Model Penal Code test and the Scots test may be reduced to circularity, however, for when one asks how extreme or how wicked the recklessness should be, the only possible answer is: "wicked or extreme enough to justify the stigma of a murder conviction". Admittedly, the Model Penal Code does contain a list of circumstances which may amount to extreme indifference, which assists the courts and increases the predictability of verdicts in a way that Scots law does not, but the essence of both approaches is that there is no precise way of describing those non-intentional killings which are as heinous as intentional killings. Their protagonists argue that the law of murder is so important socially that derogation from the principle of maximum certainty should be allowed in favour of more accurate labelling by the courts; opponents argue that the principle of maximum certainty is needed here specifically to reduce the risk of verdicts based on discriminatory or irrelevant factors, such as distaste for the defendant's background, allegiance, or other activities.
A third, more precise formulation derives from the recommendations of the Criminal Law Revision Committee in 1980, namely, that a killing should be classified as murder in those situations where there is an intention to cause serious injury coupled with awareness of the risk of death. Neither an intention to cause serious injury nor recklessness as to death should be sufficient on its own, but together they restrict one another, producing a test which both satisfies the criterion of certainty and marks out some heinous but non-intended killings.
A fourth approach, adopted by English law until 1957 and still in force in many American jurisdictions, is some form of felony murder rule: anyone who kills during the course of a felony (or, more restrictively, a serious crime of violence) or whilst resisting arrest should be convicted of murder. Thus stated, there is no reference to the defendant's intention or awareness of the risks: the fact that D has chosen to commit rape, robbery, or another serious offence, and has caused death thereby, is held to constitute sufficient moral grounds for placing the killing in the highest category. Plainly, this is a form of constructive criminal liability: the murder conviction is constructed out of the ingredients of a lesser offence. Presumably the justification is that D has already crossed a high moral/social threshold in choosing to commit such a serious offence, and should therefore be held liable for whatever consequences ensue, however unforeseeable they may be. The objections would be reduced if awareness of the risk of death was also required: in other words, if the test were the commission of a serious offence of violence plus recklessness as to death. The effect of that test would be to pick out those reckless killings which occurred when D had already manifested substantial moral and legal culpability, and to classify them as murder.
Four alternative approaches have been described, and many others could be listed. The point is that the traditional concepts of intention and recklessness do not, of themselves, appear to be sufficiently well focused to mark out those killings which are the most heinous. The law must resort to some kind of moral and social evaluation of conduct if it is to identify and separate out the most heinous killings. Many people might think that a person who causes death whilst using an unlawfully held firearm or explosives ought to be convicted of murder because there is, generally speaking, no excuse for using such dangerous equipment. Some of the people thus covered would be armed robbers, others would be terrorists. The armed robber might say that he had no intention of using the firearm, that he carried it with him simply to frighten the victim, and that it went off accidentally: if the jury believes that, should he be convicted of murder? The terrorist might say that he gave sufficient warning of the bomb for the area to be cleared, and that it was unforeseeable that a deaf person should remain on the premises and be killed in the explosion, which was intended only to cause damage. If the jury believes that, should he be convicted of murder? It is possible that juries would prefer to convict of murder in such cases so as to register their abhorrence of the defendant's activities in general. If so, this would suggest a social preference for regarding killings of these kinds as among the worst because of the circumstances in which they occur, rather than because of the defendant's awareness of the possible consequences. However, the Royal Commission on Capital Punishment, which reviewed the matter thoroughly in the early 1950s, and later law-reform committees have accorded preference to the "general principle" that "persons ought not to be punished for consequences of their acts which they did not intend or foresee". A conviction for manslaughter would be sufficient to mark the gravity of those cases in which D was not aware of the risk of death, and the court would have ample discretion in sentencing to reflect the blameworthiness of D's conduct. However, there would have to be clear parameters of sentencing in order to avoid the intrusion of discriminatory or irrelevant factors at this stage.
To summarise: the existing English law classifies as murder those killings where there was an intent to kill or an intent to cause grievous bodily harm. The reason for distinguishing between murder and manslaughter must be to identify and to label the most heinous killings as murder, and it has been questioned whether English law succeeds in this. There are issues of general principle at stake, but it is also true to say that there can be no absolutely right place in which to draw the line. The issue assumes special significance when conviction for murder carries a mandatory penalty, particularly when that penalty is death.
Now try the exercises: Exercise a, Exercise b, Exercise c
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