Criminal Law - Malice Aforethought - Essay Example

College: Criminal Law The English law s that nothing less than the intention to cause grievous harm or to kill couldbe referenced to malice afterthought. The House of Lords held this in the case of R v Moloney 1985 (ac 905). The defendant shot his own step-father and killed him. The two had had a good relationship in the past as the evidence produced reflected. They had been in the event of celebrating a ruby anniversary of the defendant’s grandparents when they both consumed too much alcohol. The entire family had retired to sleep and the defendant and his step-father had stayed up together enjoying their drinks. The defendant told his intentions to leave the army to his step-father. The step-father did not take delight in the news and challenged the son with a berating statement. He told his step-son that he could draw, load and shoot a gun faster than the defendant could and asked him to fetch the guns for the challenge to begin. The father challenge to the son was however returned by a shot toward him which the drunk defendant may not have been aware of. The trial convicted the defendant with oblique intent and he appealed to the House of Lords after he was dismissed by the Court of Appeal. It was held that the judge should not have used an expansion explanation for the intent of the defendant and the murder conviction substituted for manslaughter. The argument of intent went further to illustrate, if indeed the death or harm inflicted on the victim was the natural consequence of the defendants act then the jury could hold it against the defendant that he had the intent to kill his step-father(Lord Bridge). Murder is therefore a crime driven by intent and the intent ought to be specific so that oblique intent is not a direct motive or ground for death. Direct intent implies that death was the desired outcome by the defendant, while oblique intent covers circumstances where the defendant was virtually certain of death but which was not desired for his sake to benefit him. The mens rea that is required to assess a prosecuted person before they are convicted is defined and specified in each case. Mens rea refers to the intent of the mind that makes the defendant guilty of a crime. Murder is therefore an act that is moved to an action of malice aforethought. Malice aforethought is an artistic definition of the term. It is defined in the English Law as a well purposed intention to kill. It is further described as an act whose consequence is in expression with such threats to life as actual speech, against another, if the defendant produces a lethal weapon that was used on a victim, by certain grievous act the accused intended to cause grievous bodily harm. Death of a victim in the situations as these are attributed to malice aforethought. (Lord Goddard CJ). Killing itself does not add up to murder. For the murder to be concluded, the killing has to involve express malice aforethought or be implied by the law. In a doctrine of constructive malice, it was implied the course of another act considered felonious that involved violence and posed as harmful and threatening to life. It was also implied where the person killed was undertaking a process of the laws such as arresting or imprisoning the accused person or in any other process of the law that is legal. This doctrine was recommended for abolishment by the Royal Commission on Capital Punishment Para 121 of the published Report 1953 (cmd 8932). The section goes further to create the necessary provisions for murder to hold. The section did not affect malice that is implied apart from the doctrine of constructive malice. The case of R v Vickers (1957) 2QB, 664 1957 2 All ER 1957 741. The case was heard and approved by the House of Lords in R v Cunningham 1981 2 All ER 863, 3WLR 263. The accused had been brought in with charges of murder and convicted under section (5) (1)a of the Homicide Act 1957 (repealed). The Criminal Court of Appeal held the Act did not abolish the doctrine of implied malice and therefore conviction against the accused should stand. The court argued that the section did abolish constructive malice, which is to cause death in the process of committing a felony of violence other than which resulted in murder. It however did not abolish the doctrine of malice aforethought, that is implied in voluntary acts of the accused person that lead to grievous bodily harm on the victim or his death and that was perpetrated after threats with the express intention to kill that person. Even when in the case, death of the deceased had been caused in furtherance of theft and resulted from a crime that inflicted grievous bodily harm, there was implied malice aforethought in his murder from the attack that led to his death. Intent is proved in the Criminal Justice Act 1967 section 8. The accused was knowledgeably aware of his actions possibility to cause death. This is killing perpetrated in furtherance of another crime. Furtherance in this case creates the malice aforethought to commit murder or cause grievous bodily harm. Malice aforethought may involve not the actual intent to kill but pursuing actions that could clearly be a cause of death in awareness or that could lead to grievous bodily harm. Bodily harm could lead or not lead to death. This is apart from the cases that were abolished by the House of Lords and Supreme Court, the Criminal Court of Appeal among others in jurisdiction. Malice aforethought is also implied in cases where the attacked person caused a form of provocation on the accused that lead to an attack leaving him inflicted with grievous harm or dead. This applies apart from where the provocation is lowered to manslaughter in order to reduce the offence. Halsbury’s laws paras 431, 460. Cf as to provocation section 3. Killing done in the process of resisting the law, during arrest or imprisonment amounted to murder in the categories mentioned in sub section (2) regardless of whether the accused intended bodily harm or grievous bodily harm. In R v Porter (1873), 12 Cox 444, in R v Appleby (1940) 28 Cr App Rep 1 CCA. Malice aforethought could also be caused by mere furtherance that was not specified in R v Stone (1973) 3 All ER 920 CCA. Implication is that it is furthered in an inter alia to commit an offence. Whether the offence intended is furthered or not the accused can be convicted with murder if he causes grievous bodily harm on a victim that leads to death of that person or just the grievous bodily harm. Manslaughter is a less serious crime than murder and is therefore used to reduce the offence of a crime during jurisdiction. In many cases, grievous bodily harm extends itself to murder. Murder differs from manslaughter in its actual malice aforethought above all other intentions. For a crime of murder to hold, it must be caused by grievous bodily harm and express intention to grievous bodily harm or murder and must take place after the birth of a person and before his legal death. Work cited Spicer, M. "Law of Murder in England: Part Two." Criminologist. 21.2 (1997). Print. Read More