FC012: Introduction to Legal Principles and Systems

“A Critical Evaluation of the Mens Rea of Murder”

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A Critical Evaluation of the Mens Rea of Murder

1.0 Introduction

The element of Mens Rea in murder cases has always been a subject of controversy. In court cases around the world; Mens Rea in murder cases continues to influence legislation and sparks debate in the legal and social communities of a society. The Mens Rea in murder cases contains both subjective and objective elements; hence it gives rise to a number of disagreements on the basic premise of Mens Rea (Elliot et.al, 2010, pp. 11).

According to Walker et. al (1995), Mens Rea includes different elements that are to be considered by legal experts in the judgement of a murder case. In most murder cases, the subjective element in the determination of Mens Rea creates misconceptions and gives rise to disagreements between the parties. For the true determination of a murder offense, the vague and contradictory elements in Mens Rea should be carefully studied and speculated interpretations should not be drawn (Povinelli, 2005, pp. 225). Mens Rea plays a role in all criminal offences, but serves a vital role in the judgement of murder cases (pp. 63).

1.1 Thesis Statement

“The elements of Mens Rea should not be exploited in murder cases; the true intentions of the murderer should be thoroughly investigated considering the irreparable loss of the family/friends of the victim”.

2.0 Critical Evaluation

The Mens Rea in murder cases is considered to be malice aforethought with an intention to kill someone. It could also be referred to as the mental element in criminal offences. The word comes from Latin which means a 'guilty mind'. The Mens Rea in murder cases holds vital importance in order to convict someone or free someone from a murder charge. Often, the prosecution of the case has to prove that the defendant has requested Mens Rea for a murder related charge (Searle, 1983, pp. 75).

In murder cases, very few exceptions lie in prosecuting strict liability offences (Tiedenz, 2001, pp. 973).The presence of more than one 'Actus Reus'does not necessarily lead to Mens

Rea in murder. However, if we analyze murder cases; it often contains more than one element of the charged offence. For instance, the offence of murder contains two prime Mens Rea elements: loss of life and intended harm/loss of life (Kenny, 1973, pp.129).

There seems to be a growing disagreement among experts on the effectiveness of Mens Rea in murder cases. Also, it often becomes difficult to judge a murder offense by implying the elements of Mens Rea in it. Mens Rea comprises of components such as recklessly, maliciously, intentionally, dishonestly, believing knowingly etc. However, in murder cases, the most commonly used are the true intention of the person and the level of recklessness involved in the act. Due to the high emotionality involved in murders cases; the proper application of Mens Rea often becomes a complexity. Both the prosecution and defence tend to suffer from its usage and impact on ...