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It is the presence or absence of a mental element known as "malice aforethought", which determines whether an unlawful killing is murder or not.
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"I do not consider that foresight of a high degree of probability is at all the same thing as intention. It is not foresight but intention which constitutes the mental element of the offence" (Lord Hailsham in Hyam v. DPP) It is the presence or absence of a mental element known as "malice aforethought", which determines whether an unlawful killing is murder or not. 'Malice aforethought' is the mens rea of murder: the requisite mental element of the crime which an actor must have in regard to the actus reus (requisite act/circumstances of an offence). 'Malice aforethought' has been taken by the courts to mean an 'intention' to kill or an 'intention' to cause grievous bodily harm. Intention and its definition have long plagued judicial thinking and whilst it is easy to seek direction from The Law Commission1 upon the meaning of intention, summary judgements have been coloured by the...
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