Previous: Causation and homicide

The actus reus of manslaughter, that of one person unlawfully killing another during the Queen’s peace, is exactly the same as that of murder. However, differentiating manslaughter from murder is the requirement of ‘malice aforethought’, or ‘intent’ as we would refer to it today. If a person intends to kill another, it is said that they are more blameworthy than if they had no relevant intent.

What needs to be intended?

To be guilty of murder, the actus reus (above) and the mens rea of ‘intent’, as well as a lack of defence, must be proven by the prosecution. There are two types of intent capable of satisfying the mens rea requirement: express malice, an intent to kill; and implied malice, an intent to cause grievous bodily harm (GBH). While it may seem odd that someone can be found to be a murderer where they only intended to cause serious harm, R v Cunningham [1981] says that serious harm is likely to result in death and a defendant is responsible for the result of his actions. The Law Commission proposed in 1989 that implied malice should be altered to require an awareness that death might be caused, however this was rejected.

There are varying opinions on the implied malice, or ‘GBH murder’ rule. Lord Mustil in A-G Reference (No. 3 of 1994) [1997] said that the rule was an outcropping of old law, whereas Lord Bingham in R v Rahman [2008] said that although the rule lacks logical purity, there is an element of ‘earthy realism’ to it...

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