What is it?

A defendant who has caused another’s death will have had the mens rea for murder if, at the time he acted (or at the time he wrongfully failed to prevent that other’s death), he had an intent to kill or an intent to cause someone to suffer grievous bodily harm.

Is this area of the law in need of reform?

Many commentators criticise the rule that a defendant can be found to have had the mens rea of murder if he merely had an intent to cause someone to suffer grievous bodily harm. I want to make a more fundamental criticism: that even if we got rid of what is called the ‘grievous bodily harm rule’, and said that someone will have the mens rea of murder if, and only if, he had an intent to kill, the law of murder will still be in an unsatisfactory state. Simply asking whether the defendant had an intent to kill will invariably result in our classifying as murderers some people who should not be classified as murderers, and our classifying as non-murderers some people should be classified as murderers – and this is so whatever meaning we give to the phrase ‘intent to kill’. In other words, a definition of the mens rea of murder that is centred round the concept that you are a murderer if you acted with an intent to kill will result in our drawing the line between murderers and non-murderers in the wrong place. To draw it in the right place, we need a different definition of the mens rea of murder.

The multiple meanings of ‘intent’

I’ve claimed that whatever meaning we give to the phrase ‘intent to kill’, focussing on whether the defendant had an intent to kill will result in our drawing the dividing line between who is a murderer and who is not a murderer in the wrong place. I’ll now make out this claim by considering some different definitions of when we can say that a defendant had an ‘intent to kill’.

(1) Aim or purpose

This is the most straightforward definition of what it means to have an intent to kill – the defendant acted with an intent to kill if killing was one of his aims or purposes in acting as he did. We can test whether someone had the aim or purpose to produce effect x in acting as they did by asking what their reaction would have been had their actions not produced effect x. If their reaction would have been one of indifference, then they did not act with the aim or purpose of producing effect x. If their reaction would have been one of frustration, then they acted with the aim or purpose of producing effect x.

So if D puts poison in V’s glass of water, we can determine whether or not D is acting with the aim or purpose of killing V by considering what D’s reaction would be if V did not die after drinking from the glass. If he wouldn’t mind, then killing V is not his aim or purpose – maybe he is simply putting the poison in V’s glass in order to make her sick. (And we can test for that by considering what D’s reaction would be if V’s was completely unharmed by drinking from the glass.) If D would be very frustrated if V did not die after drinking from the glass, then it’s clear he is acting with the aim or purpose of killing her in putting the poison in her glass.

Now – asking, in a case where a defendant has caused another’s death, ‘Did the defendant act with an intent to kill, in the sense of acting with the aim or purpose of killing?’ will usually produce the right result. The Assassin who shoots a politician whom he has been hired to kill will be rightly found guilty of murder – he acted with the aim or purpose of killing. So will the Incompetent Assassin who attempts to shoot the politician whom he has been hired to kill, and who misses and hits and kills a bystander instead. The Drunk Driver who unthinkingly runs down and kills someone crossing the road in front of his car will rightly not be found guilty of murder because he did not act (either in getting into the car drunk, or in running down the person crossing the road in front of his car) with the aim or purpose of killing.

However, in some cases defining intent in terms of ‘aim or purpose’, will produce some false negatives – cases where we will find that a defendant is not guilty of murder when we would really want to find that the defendant is guilty of murder. For example, the Plane Bomber who blows up a plane that he owns in mid-flight, killing everyone on board, in order to collect on the insurance that he has on the plane does not act with the aim or purpose of killing: if everyone aboard the plane survived the explosion, Plane Bomber would have been happy or indifferent, not frustrated. His aims or purposes in acting as he did were: (1) to destroy the plane; and (2) collecting the insurance on the plane. Destroying lives was not part of the plan; it was just a side-effect of the plan. So if we define ‘intent to kill’ in terms of acting with the aim or purpose of killing, we will end up saying that Plane Bomber did not have an intent to kill, and acquit him of murder. But I think most people would really want to find him guilty of murder.

Consider also the case of Transplant Surgeon, who takes the heart and lungs out of Patient One who is dying of kidney failure and transplants them into Patient Two whose heart and lungs have failed. One dies and Transplant Surgeon is charged with murder. If we define having an ‘intent to kill’ in terms of acting with the aim or purpose of killing, then Transplant Surgeon should be acquitted. He could legitimately say that he did not act as he did with the aim or purpose of killing One – had One survived having his heart and lungs taken out, then Transplant Surgeon would have been quite happy (and amazed). But I think most people would want to see Transplant Surgeon convicted of murder.

(2) Aim or purpose OR acting believing that death is the virtually certain consequence of your actions

In order to cover cases like Plane Bomber and Transplant Surgeon it might be suggested that the definition of when a defendant should be held to have acted with an ‘intent to kill’ should be adjusted so that a defendant will be held to have acted with an ‘intent to kill’ if: (i) he acted with the aim or purpose of killing; or (ii) when he acted as he did he believed that it was virtually certain that someone would die as a result of his actions. On one reading of the House of Lords’ decision in R v Woollin (1998) (which reading was adopted by the Court of Appeal in the conjoined twins case, In re A (2001)) this is the position now taken by the courts on when a defendant will be held to have had an intent to kill.

(Note two common errors that students tend to slip into as a result of the decision of the House of Lords in Woollin. First, they think that it always has to be shown that a defendant believed that death was virtually certain to result from his actions for it to be shown that the defendant had an intent to kill. This is not true. If the defendant acted with the aim or purpose of killing then he had an intent to kill, no matter how improbable he thought it was at the time that he would succeed in killing. So, for example, if I aim a gun at you when you are half a mile away, and pull the trigger with the aim or purpose of killing you, the fact that I thought it was very unlikely I would actually hit you should not stop us finding that I had an intent to kill when I pulled the trigger. Secondly, Lord Steyn’s endorsement in Woollin of Lord Lane CJ’s direction in Nedrick (1986) that a ‘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 defendant’s actions and the defendant appreciated that such was the case’ (emphasis added) leads some people to think that if, objectively, death was not virtually certain to result from the defendant’s actions, the defendant cannot be found to have had an intent to kill (unless he acted with the aim or purpose of killing). This cannot be true. When we are asking whether someone had an intent to kill, we are focussing on their mental state. The objective facts on the ground as to whether or not death was virtually certain to result from the defendant’s actions cannot be relevant to the issue of what the defendant’s mental state was in acting as he did. So suppose a Plane Bomber – who wants to collect the insurance on a plane he owns – places a bomb on the plane that due to its faulty construction is only 50% likely to go off. The Plane Bomber does not know that his bomb is faulty and thinks that the bomb is virtually certain to explode when the plane is in mid-air, with the result that everyone aboard will be killed. We should not allow the fact that the bomb was not virtually certain to go off to stop us finding – in the event that the bomb does go off and everyone is killed and the Plane Bomber is charged with murder – that the Plane Bomber had an intent to kill when he put the bomb on the plane.)

This re-definition of when someone will be held to have an ‘intent to kill’ seems to solve the problems created by our first definition of when someone will be held to have an ‘intent to kill’. We can find that Plane Bomber and Transplant Surgeon had an intent to kill because when they acted as they did, they believed that death was virtually certain to result from their actions. However, while our re-definition of the meaning of intent enables us to convict Plane Bomber and Transplant Surgeon of murder, it does so at the cost of bringing within the scope of the law of murder other people who most people would not want to see convicted of murder.

For example, consider the example of the Mountaineer who finds himself trapped on the side of the mountain because his climbing companion, to whom Mountaineer is attached by a rope, has slid into a seemingly bottomless crevasse. The deadweight of his companion prevents Mountaineer from moving, and Mountaineer’s companion is unable to climb up and out of the crevasse. Night is falling and Mountaineer and his companion will freeze to death if they stay where they are. Mountaineer decides to cut the rope and his companion falls to his death. Most people would not want to find Mountaineer guilty of murder here, but our redefinition of the concept of having an ‘intent to kill’ indicates that we must find that Mountaineer had an intent to kill when he cut the rope – when he cut it, he believed that death was virtually certain to result from his actions.

And consider the case of the Doctor who gives a cancer patient who is in great pain a dose of morphine that is precisely calibrated to relieve the patient’s pain. Doctor is aware that giving the patient a dose of that size will inevitably hasten the patient’s death, but killing the patient is not part of his aim or purpose. If the patient survived the dose, he would be happy, not frustrated. The patient dies soon after being given the dose of morphine. Most people would not want to find Doctor guilty of murder here, but on our redefinition of when someone can be said to have acted with an intent to kill, we must find that Doctor acted with an intent to kill when he gave his patient the dose of morphine as he believed when he injected the morphine that doing so was virtually to result in the patient’s death being accelerated.

It might be argued that we can deal with the problems created by Mountaineer and Doctor being brought within the law of murder by our redefinition of when a defendant will be held to have had an intent to kill by giving defendants like Mountaineer and Doctor defences to being prosecuted for murder. However, this proposal is fraught with difficulties.

First of all, there are serious civil liberties objections to defining murder in such a way that people who we all know should not be found guilty of murder will be held to have committed the crime of murder unless they can raise a defence. Secondly, it is not clear that any defences we constructed or invented to cover cases like Mountaineer or Doctor can be kept under control and prevented from providing other, more sinister, defendants with defences to being charged with murder. For example, if we say that Mountaineer has a defence because if he had not acted as he did, then both he and his companion would inevitably have died, then Transplant Surgeon might try to take advantage of the same defence: ‘Had I not acted as I did, then both my patients would have died – as it is, I enabled one to live by sacrificing the other.’ And if we say that Doctor has a defence because he acted with the object of relieving pain, then Euthanaser – who gives his patient a very high dose of morphine in order to kill him, thereby bringing his patient’s suffering to an end – might be able to take advantage of the same defence when he is charged with murder.

Considerations such as these indicate that our redefinition of what it means to have an intent to kill does not really work to distinguish satisfactorily between cases where we want to find someone guilty of murder and cases where we do not.

(3) An intent to kill is established if you acted with the aim or purpose of killing, and may be inferred if when you acted as you did, you believed that death was virtually certain to result from your actions

This is the alternative reading of the House of Lords’ ruling in Woollin, on when a defendant should be held to have acted with an intent to kill. On this definition, the fact that a defendant believed that death was virtually certain to result from his actions does not mean that he did have an intent to kill – it is only evidence from which it may be inferred that he did have an intent to kill.

The fact that someone believed that death was virtually certain to result from their actions can often be useful evidence that they had an intent to kill, in the sense that they acted with the aim or purpose of killing. For example, in Hyam v DPP (1975) the defendant had an affair with a Mr Jones for a number of years. He then broke off their relationship because he was getting engaged to a Mrs Booth. Booth had three children. One night, the defendant went to Booth’s house (having first made sure that Jones was at home and not with Booth), poured half a gallon of petrol through the letter box, and then set the petrol alight by stuffing a lighted newspaper through the letter box. If we freeze the story right there and ask, Was the defendant’s aim or purpose in doing all this to kill someone? I think most people’s reaction would be to say ‘I don’t know – she could have been doing it to kill Booth, but she could also have been doing it to scare Booth away, or to punish Booth – by frightening her – for stealing her man.’ But if we add the fact (which was not actually established in the case) that when the defendant acted as she did, she believed that death was virtually certain to result from her actions, then I think most people would conclude from that that the defendant acted as she did in order to kill. The alternative explanation of why the defendant did what she did – that she was trying to frighten Booth, either to scare her away or to punish her – would become completely implausible. If the defendant foresaw that death was virtually certain to result from what she did, she would have chosen some other means of frightening Booth, if that’s all she was trying to do.

However, in other cases it would be wrong to conclude from the fact that the defendant foresaw that death was virtually certain to result from his actions that the defendant acted with the aim or purpose of killing. Other evidence will make it clear that that was not what the defendant was trying to do, even though he foresaw that death was virtually certain to result from his actions. For example, if we saw Mountaineer hacking away at the rope that is the only thing that is keeping Mountaineer’s companion from falling to his death, we might initially think that Mountaineer is trying to kill his companion. The fact that Mountaineer must foresee that death is the inevitable result of his actions would count towards our thinking that he is trying to kill his companion in acting as he does. But everything else in the situation counts against us reaching such a conclusion. The fact that the two climbers are trapped on the mountain, that Mountaineer has hung on for as long as he has, hoping for some help to arrive, the fact that Mountaineer and his companion are tearfully saying goodbye to each other – all these things count towards our concluding that, actually, Mountaineer is not trying to kill his companion but is hoping against hope that something will happen to save his companion’s life (while realising that that is a desperate hope).

So on this third definition of when we will find that someone had an intent to kill, we will not find that defendants like Mountaineer or Doctor had an intent to kill. While the fact that they foresaw that death was virtually certain to result from their actions may allow us to infer that they had an intent to kill, all the other facts of their case will lead us in the end to conclude that they were not acting with an intent to kill. But the trouble is that on this third definition, we will not find that Plane Bomber or Transplant Surgeon had an intent to kill, either. If we are honest, we will say that while those defendants did foresee that death was virtually certain to result from their actions, all the other facts of their cases indicate that they were not trying to kill anyone when they acted as they did – so we will not infer that they acted with an intent to kill, despite the fact that they believed that death was virtually certain to result from their actions. But that is only if we are honest. This third definition of when someone will be held to have an intent to kill does create the space or ‘wiggle room’ for a judge or a jury to be dishonest – to decline (honestly) to infer that there was an intent to kill in cases like Mountaineer or Doctor but to infer (dishonestly) that there was an intent to kill in cases like Plane Bomber or Transplant Surgeon in order to find them guilty of murder. So justice can be done under this third definition – we can find those who should be guilty of murder, guilty of murder; and those who should not be found guilty of murder, not guilty – but only under the cover of darkness created by giving judges and juries the scope to choose whether or not they will infer, or not infer, that a defendant had an intent to kill because the defendant foresaw that death was virtually certain to result from their actions. This is not satisfactory – not least because we cannot guarantee that judges and juries will make the right choices, particularly when they are given no guidance as to when they should infer from the defendant’s foreseeing that death was virtually certain to result from his actions that the defendant acted with an intent to kill.

(4) Aim or purpose OR acting with the aim or purpose of producing an effect, the inescapable consequence of which is that someone will die

Andrew Simester’s article ‘Moral certainty and the boundaries of intention’ (1996) 16 Oxford Journal of Legal Studies 445 might be taken as suggesting a fourth definition of when someone will be held to have acted with an intent to kill, which is set out above.

In the case of OBG Ltd v Allan (2008) – a case that has absolutely nothing to do with the law of murder – the House of Lords might be taken to have agreed with this definition. Lord Nicholls said (at [167]):

‘Take a case where a defendant seeks to advance his own business by pursuing a course of conduct which he knows will, in the very nature of things, necessarily be injurious to the claimant. In other words, a case where loss to the claimant is the obverse side of the coin from gain to the defendant. The defendant’s gain and the claimant’s loss are, to the defendant’s knowledge, inseparably linked. The defendant cannot obtain the one without bringing about the other. If the defendant goes ahead in such a case in order to obtain the gain he seeks [the defendant will be held to have intended to harm the claimant].’

Lord Hoffmann used the same imagery (at [134]): if the claimant’s loss was ‘the other side of the same coin’ as the defendant’s gain, then an intention by the defendant to make a gain for himself would also amount to an intention to cause the claimant to suffer loss.

Does this idea do a better job than our first three definitions of drawing a satisfactory dividing line between those who will be found guilty of murder and those who will not be found guilty of murder? The idea has most promise when applied to Transplant Surgeon: assisting Two by giving her One’s heart and lungs simply cannot be done without killing One. The very reason why Two will be assisted by being given One’s heart and lungs is the reason why One will die once his heart and lungs are taken away – the reason is that having a functioning heart and lungs is essential for life. So we can say in Transplant Surgeon that One’s death was an inescapable consequence of Two’s being given One’s heart and lungs, and that Transplant Surgeon not only intended to keep Two alive by giving her One’s heart and lungs, but also intended to kill One in the process. One’s death was the ‘other side of the same coin’ as Two’s being kept alive.

However, once we extended the idea of an ‘inescapable consequence’ to Plane Bomber and say that Plane Bomber intended to kill the passengers aboard the plane when it blew up because killing those passengers was an ‘inescapable consequence’ of the plane being blown up, then it is very hard to distinguish the idea of something being an ‘inescapable consequence’ of an event occurring from it being ‘virtually certain’ to result from an event occurring. In other words, if we say that there was an intent to kill in Plane Bomber because death was an ‘inescapable consequence’ of what Plane Bomber was trying to do, it is hard to see why we should not also say that Mountaineer and Doctor also had an intent to kill – thus reviving all the problems that afflicted our second definition of when someone can be said to have had an intent to kill.

But if we don’t extend the idea of an ‘inescapable consequence’ to Plane Bomber, then on our fourth definition of what it means to have an intent to kill, we will find that Plane Bomber had no intent to kill and acquit him of murder – which is not a consequence that most people would find palatable.

Alternatives

It seems, then, that if we say that someone will have the mens rea of murder if and only if they had an intent to kill, there is no way of making sense of the concept of having an ‘intent to kill’ that will not result in unacceptable consequences for the scope of the law of murder. Given this, we should start thinking about whether the mens rea of murder should be defined exclusively in terms of whether or not someone had an intent to kill.

In his article ‘The mental element in the crime of murder’ (1988) 104 Law Quarterly Review 30, Lord Goff suggested that a defendant should be held to have had the mens rea of murder if: (1) he acted with an intent to kill, in the sense of acting with the aim or purpose of killing; or (2) he acted with wicked recklessness, in the sense that he did not care whether or not the deceased lived or died. New York criminal law adopts a similar rule. Under section 125.25 of their Penal Code, a defendant will be held to have committed murder in the second degree if: (1) the defendant acted with an intent to kill without any extenuating circumstances; or (2) under ‘circumstances evincing a depraved indifference to human life, he recklessly engage[d] in conduct which create[d] a grave risk of death to another person’. (Murder ‘in the first degree’ under section 125.27 is reserved for cop killings, witness killings, killings for hire, serial killing, and so on.)

Either of these definitions would do a better job of drawing a dividing line between who is a murderer and who is not than a definition of the mens rea of murder which was focussed on whether or not the defendant acted with an intent to kill. Assassin and Incompetent Assassin and Euthanaser would all be found guilty of murder because they each acted with an intent to kill in the sense that they acted with the aim or purpose of killing. Plane Bomber and Transplant Surgeon would not be held to have acted with an intent to kill but would still be held to have had the mens rea of murder because they acted with wicked recklessness/depraved indifference to human life. Mountaineer and Doctor would not be held to have had the mens rea of murder because they did not have an intent to kill – they did not act with the aim or purpose of killing anyone – and they did not act with wicked recklessness/depraved indifference to human life.

Moreover, adopting a definition of the mens rea of murder along the lines proposed above would allow us to drop the ‘grievous bodily harm rule’. Instead, where a defendant acted with the aim or purpose of causing another grievous bodily harm, we would ask whether they acted with wicked recklessness/depraved indifference to human life in acting as they did. If they did (as would be the case where D intended to beat V to within an inch of his life with a baseball bat to punish him for not paying a gambling debt), they would be found guilty of murder. If they did not (as would be the case where D intended to break one of V’s legs to punish him for not paying a gambling debt, and complications set in and V died as a result), they would not be. This might be thought to be more satisfactory than the current situation, where all those who cause death while acting with an intent to cause grievous bodily harm are held to have had the mens rea for murder.