The Depraved State of Mind – Malice Aforethought

By 24 September 2017KEY ARTICLES

The Depraved State of Mind - Malice Aforethought (±x)

Published on 24th September 2017

Joseph S R de Saram (JSRDS)

Information Security Architect / Intelligence Analyst / Computer Scientist / Human Rights Activist / COMSEC / SIGINT / TSCM

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The mens rea for the offence of murder is ‘malice aforethought’.

Malice Aforethought – n.

1) the conscious intent to cause death or great bodily harm to another person before a person commits the crime. Such malice is a required element to prove first degree murder.

2) a general evil and depraved state of mind in which the person is unconcerned for the lives of others.

The mens rea for the offence of murder is ‘malice aforethought’. This is relatively straightforward but can be misleading. The word ‘malice’ may suggest to some that the prosecution needs to establish some ulterior motive or reason for the killing but this is not the case.

In simple terms it means the:-

“intention to kill or cause really serious harm”

It might be surprising to learn that an individual need not have intended to cause the death of the victim but he or she may still be convicted of murder, but this has been a long standing part of E&W law.

In Cunningham 1982, the House of Lords was unanimous in its opinion that the

intention to cause grievous bodily harm constitutes enough blameworthiness to amount to malice aforethought.

Regina v Cunningham: HL 8 Jul 1981

(A) A defendant may be convicted of murder if it is established either (1) that he had an intent to kill or (2) that he had an intent to cause really serious bodily injury

(B) Intention is a state of mind which can never be proved as a fact. It can only be inferred from other facts which are proved.

Lord Edmund-Davies said:

‘the outcome of intentionally inflicting serious harm can be so unpredictable that anyone prepared to act so wickedly has little ground for complaint if, where death results, he is convicted and punished as severely as one who intended to kill.’ 

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Regina v Woollin: HL 2 Apr 1998

The defendant appealed against his conviction for the murder of his child. He had thrown the child to the floor, hitting the head. He said that he had not intended to kill the child. 

(C) On a murder charge, where the short direction on intent was insufficient, the judge should direct on basis that death or serious bodily harm would have to almost certainly arise from the act complained of, and that the defendant appreciated this.

(D) A person may still intend to do something even though he does not desire it.

(E) Intention is not to be restricted to consequences that are wanted or desired, but includes consequences which a defendant might not want to ensue, but which the jury find (a) are the virtually certain result of the defendant’s actions (barring some unforeseen intervention); and (b) are consequences which the defendant appreciated were virtually certain to occur.


Regina v Hyam: HL 1974

The defendant had burnt down the house of her rival in love, thereby killing her children. The judge directed the jury to convict the defendant of murder if she knew that it was highly probable that her act would cause death or serious bodily harm. The jury convicted her of murder. 

(F) The House considered what state of mind, apart from the case where a defendant acts with the purpose of killing or causing serious injury, may be sufficient to constitute the necessary intention for murder.

(G) The House differed in their reasons for upholding the conviction. One adopted the ‘highly probable’ test; another thought a test of probability was sufficient; and a third thought it was sufficient if the defendant realised there was ‘a serious risk.’


Regina v Powell (Anthony) and Another; Regina v English: HL 30 Oct 1997

When the court looked at the issue of foreseeability of murder in an allegation of joint enterprise, there was no requirement to show intent by the secondary party. The forseeability of the risk of the principal committing the offence from the point of view of the secondary party is sufficient. The question certified was ‘Is it sufficient to found a conviction for murder for a secondary party to a killing to have realised that the primary party might kill with intent to do so or must the secondary party have held such intention himself?’ 

(H) A secondary party to a criminal enterprise may be criminally liable for a greater criminal offence committed by the primary offender of a type which the former foresaw but did not necessarily intend.

(I) It is sufficient to found a conviction for murder for a secondary party to have realised that in the course of the joint enterprise the primary party might kill with intent to do so or with intent to cause grievous bodily harm.

Lord Steyn said: ‘Experience has shown that joint criminal Enterprises only too often escalate into commission of greater offences. In order to deal with this important social problem, the accessory principle is needed and cannot be abolished or relaxed.’


Rahman and Others, Regina v: HL 2 Jul 2008

Lord Bingham of Cornhill, Lord Scott of Foscote, Lord Rodger of Earlsferry, Lord Brown of Eaton-under-Heywood, Lord Neuberger of Abbotsbury 

The defendants appealed against their convictions for murder. None had themselves inflicted any violence, but were convicted as part of a joint enterprise. They said they had not known that the principal carried a knife. They said that the evidence showed that the knife wound had been intended to kill, but that it was only shown that they had anticipated a serious injury falling short of that murder. The judge had not directed the jury that the defendants had to be shown to have been party to the intention inferred. 

(J) The law must necessarily include mechanisms for convicting those who take part in a criminal activity without themselves carrying out the central acts, and ‘Given the fluid, fast-moving course of events in incidents such as that which culminated in the killing of the deceased, incidents which are unhappily not rare, it must often be very hard for jurors to make a reliable assessment of what a particular defendant foresaw as likely or possible acts on the part of his associates.

(K) It would be even harder, and would border on speculation, to judge what a particular defendant foresaw as the intention with which his associates might perform such acts. It is safer to focus on the defendant’s foresight of what an associate might do, an issue to which knowledge of the associate’s possession of an obviously lethal weapon such as a gun or a knife would usually be very relevant. ‘ and

(L) ‘In the prosecution of a principal offender for murder, it is not necessary for the prosecution to prove or the jury to consider whether the defendant intended on the one hand to kill or on the other to cause really serious injury. That is legally irrelevant to guilt. The rationale of that principle plainly is that if a person unlawfully assaults another with intent to cause him really serious injury, and death results, he should be held criminally responsible for that fatality, even though he did not intend it.

(M) If he had not embarked on a course of deliberate violence, the fatality would not have occurred. This rationale may lack logical purity, but it is underpinned by a quality of earthy realism. To rule that an undisclosed and unforeseen intention to kill on the part of the primary offender may take a killing outside the scope of a common purpose to cause really serious injury, calling for a distinction irrelevant in the case of the primary offender, is in my view to subvert the rationale which underlies our law of murder. ‘

(N) Lord Brown said: ‘If the principal (the killer) was at all times intent on killing the victim and the secondary party was not, then it is simply unrealistic to talk in terms of their sharing a common purpose. But that matters nothing. Once the wider principle was recognised (or established), as it was in Chan Wing-Siu and Hyde, namely that criminal liability is imposed on anyone assisting or encouraging the principal in his wrongdoing who realises that the principal may commit a more serious crime than the secondary party himself ever intended or wanted or agreed to, then the whole concept of common purpose became superfluous. ‘ and 

(O) ‘The qualification to the Hyde direction established by English concerns simply the secondary party’s foresight of possible acts by the principal constituting more serious offences than the secondary party himself was intending, acts to which he never agreed and which from his standpoint were entirely unwanted and unintended. But an act is an act and either its possibility is foreseen or it is not.

(P) I see no possible reason or justification for further complicating this already problematic area of the law by requiring juries to consider and decide whether the principal’s intent when killing the victim was the full intent to kill or the usual lesser intent to cause GBH.

(Q) Whichever it was, the act was the act of killing and the only question arising pursuant to the English qualification is whether the possibility of killing in that way (rather than in some fundamentally different way) was foreseen by the accessory-whether the act which caused the death was, as Sir Robin Cooke had put it in Chan Wing Siu, ‘of a type’ foreseen by the secondary party.’


The defendant appealed against his conviction for murder. 

Held: The appeal was allowed and a conviction for manslaughter substituted. 

(R) Lord Bridge of Harwich discussed the case of Hyam: ‘But looking on their facts at the decided cases where a crime of specific intent was under consideration, including Hyam . . they suggest to me that the probability of the consequence taken to have been foreseen must be little short of overwhelming before it will suffice to establish the necessary intent.’

(S) In the rare cases in which it might be necessary to direct a jury by reference to foresight of consequences it would be sufficient to ask two questions:

(T) ‘First, was death or really serious injury in a murder case (or whatever relevant consequence must be proved to have been intended in any other case) a natural consequence of the defendant’s voluntary act?

(U) Secondly, did the defendant foresee that consequence as being a natural consequence of his act? The jury should then be told that if they answer yes to both questions it is a proper inference for them to draw that he intended that consequence.’ 

Relevance of the Foregoing

I am in the process of writing two new article referencing Forensic Evidence in relation to ‘Attempted Murder v Grievous Bodily Harm with Intent’, and need this article ‘The Depraved State of Mind – Malice Aforethought‘ to refer to.


Joseph S R de Saram (JSRDS)

Information Security Architect / Intelligence Analyst / Computer Scientist / Human Rights Activist / COMSEC / SIGINT / TSCM