used to denote the mens rea required for murder – see the classic definition of murder set out in Coke’s Institutes (3 Co Inst 47): ‘Murder is when a [person] ... unlawfully killeth ... any reasonable creature in rerum natura under the Queen’s peace, with malice aforethought ... so as the party wounded or hurt, etc dies of the wound or hurt’ – but it is submitted that, in the modern context, this phrase is likely to mislead. The defendant charged with murder does not need to have displayed any ‘malice’ towards his victim – it may, for example, be a mercy killing. Further, there is no need for the prosecution to prove that the killing was in any way premeditated or planned. All in all the phrase is best avoided. Chapter 4 provides lengthy extracts from the key cases illustrating the development of the mens rea of murder in the modern era, through R v Hancock [1986] 1 All ER 641, R v Nedrick [1986] 1 WLR 1025 and R v Woollin. The following extracts concentrate on the extent to which the current law relating to the mens rea is considered rational and justifiable by the judiciary. AG’s Ref (No 3 of 1994) [1997] 3 All ER 936

ABSTRACT

Lord Mustill: My Lords murder is widely thought to be the gravest of crimes. One could expect a developed system to embody a law of murder clear enough to yield an unequivocal result on a given set of facts, a result which conforms with apparent justice and has a sound intellectual base. This is not so in England, where the law of homicide is permeated by anomaly, fiction, misnomer and obsolete reasoning. One conspicuous anomaly is the rule which identifies the ‘malice aforethought’ (a doubly misleading expression) required for the crime of murder not only with a conscious intention to kill but also with an intention to cause grievous bodily harm. It is, therefore, possible to commit a murder not only without wishing the death of the victim but without the least thought that this might be the result of the assault. Many would doubt the justice of this rule, which is not the popular conception of murder and (as I shall suggest) no longer rests on any intellectual foundation. The law of Scotland does very well without it, and England could perhaps do the same. It would, however, be fruitless to debate this here, since the rule has been established beyond doubt by R v Cunningham [1982] AC 566. This rule, which I will call the ‘grievous harm’ rule, is the starting point of the present appeal ...