CRITICAL ANALYSIS OF MENS REA AS FUNDAMENTAL ELEMENT OF CRIME WITH SPECIAL REFERENCE TO MURDER AND CULPABLE HOMICIDE

Abstract

The paper undertakes a review of the mental element in murder. Section 4 of the Criminal Justice Act, 1964 defines the mental element in murder as an intention to kill or to cause serious injury. In what follows we examine whether there are morally reprehensible killings which fall outside the present definition of murder, but which nevertheless ought to be punished as murder. Although there is little reported Irish authority on the meaning of 'intention', in England that concept has been interpreted as embracing, in addition to situations where it is the actor's conscious object or purpose to kill, situations where, although it may not be the actor's object or purpose to kill, he nevertheless foresees death as virtually certain to result from his actions. On that construction it follows that no matter how culpable the taking of the risk in question may be, it cannot be murder unless the actor foresees death as a virtually certain consequence of his actions. This would exclude from the definition of murder many forms of socially unacceptable risk-taking which fall short of a virtual certainty.