"The law relating to Mens Rea of murder has now become settled through a series of judicial decisions which, taken together, have made it unnecessary for parliament to legislate on the matter. " Critically consider the truth of this statement. A simple translation on Mens Rea is a guilty mind but this is not as accurate as it should be. Key words for Mens Rea are Intention, Recklessness and Negligence. There are different types of intention, for example, there is pure intention, which means that the intention of the act is obvious simply by the actions and the happenings around the event.
There is also direct and oblique intent; direct intent is a typical situation where the consequences of a person's actions are desired. Oblique intent covers the situation where the consequence is foreseen by the defendant as virtually certain, although it is not desired for it's own sake, but the defendant goes ahead with his actions anyway. (See also the example given by Lord Bridge in R v Moloney). Murder requires only intention. Murder can be defined as: "… The unlawful killing of a reasonable creature in being under the Queen's Peace with malice aforethought… "
In a more modern explanation murder is defined as 'The intention to kill OR cause grievous bodily harm'. Courts have had to define the meaning of intention themselves, as there is no statute defining it. Many murder cases have, in the past, changed the accepted idea of what intention is and have created new case law for the judges to follow. If an area of Mens Rea were unprecedented a judge would rule on it the best and most justifiable way he thought possible and then, if it was a correct ruling, it may have been used as judicial precedent and therefore the judges will use this to pass judgement on cases of a similar nature.
This is what the judges have been doing and it has, so far, been working, but it is not the place of the judge to create 'law', or something, which can be taken to have the same strength as law. It is parliaments duty to pass legislation on areas of the law that it has not considered as yet. I feel that a judge cannot do parliaments job because a judge solely has the input of himself and it is possible for him to rule the wrong decision. The people of England elect parliament and therefore they pass statues for us and with the input of many people there is more chance of making sure that the results will be correct and justifiable.
We need to know what a judge says in each murder case so we can monitor how the law is changing with regard to intention. R. v. Smith  is a very good case to refer to as it shows how rulings like this can happen when there are not set laws in place for the judges to refer to. Smith is a case where the defendant stabbed a man with a bayonet and he was then taken to a medical station (the act happened in an army camp) but was dropped twice. Eventually the victim arrived at the medical station but he was not treated. His injuries were not thought to be serious and the victim died.
In this case Viscount Kilmuir decided that the test was what a reasonable man would have foreseen as the natural consequence of his actions not what the accused actually foresaw. The law is changing now but it was common practice then to use the mind of a reasonable man to decide intention. This case was criticised as one of the worst decisions in the history of the English Legal System. Instead of using the 'reasonable man' theory, in cases like Bedder . v. DPP  (this is where the defendant was impotent and he killed a prostitute who was taunting him about his problem.
The judge ruled that the reasonable man was not impotent) judges now consider your characteristics as part of the equation. For example the case of Raven  (this is a case where the defendant killed somebody and he was 22 but he had a mental age of 9. The judge ruled that this was a characteristic and not only should chronological age be taken into account but mental age should too. The law is always evolving and it is doing so for the better but what about those in cases which are later decided to be wrong law? As in the case mentioned before (Bedder. v.
DPP ) the death penalty was still working and the defendant was hanged. Surely it is not fair for judges to rule however they feel it to be correct, especially when punishment was so ruthless. There are so many different cases on murder it makes it hard to have a specific rule because that may mean that there is no leeway for special circumstances. With the judges doing it, it means that if a case is different they can rule on it the best way they see fit without going against the law. There are many areas of the English Legal System that is decided without the input of parliament.
This is mainly because parliament simply does not have time to legislate on all of these different areas. It is better for judges to do it themselves because they have better and first-hand knowledge of the law than parliament and they are the ones in the courtroom not the MP's. Judges have to decipher between very slight differences in cases and that can make the difference between guilty and not guilty. For example the cases of R. v. Cox  and R. v. Moor . Both of these are cases where a doctor administered drugs to a patient and the patient then died soon after because of the drugs.
The motive/intention is the deciding point and the judges may have used R. v. Adams  as case law reference (or a similar case). In Cox, the defendant 'administered an injection of potassium chloride in a quantity which could have no therapeutic purpose' whereas in Moor the defendant 'claimed his purpose was to make sure that his patient suffered no break through pain', the words I have outlined in bold are the deciding factors. Cox was found guilty but Moor was found not guilty. For a better explanation see the extract below,
"… If the first purpose of medicine, the restoration of health, can no longer be achieved there is still much for the doctor to do and he is entitled to do all that is proper and necessary to relieve the pain and suffering even if measures he takes may incidentally shorten life" What is said above is that a doctor can administer drugs that will relieve pain with knowledge that a side effect may be a shortened life span but a doctor cannot give a patient drugs with the intent to kill as a means of relieving pain.
I feel that this 'set-up' is best left the way it is as the law is now settled when regarding Mens Rea, if parliament were to have stepped in at any point it should have been many years ago when there was confusion about what to rule in certain cases. There are now enough cases for judges to refer to and it can now be thought that the process involving Mens Rea in murder is settled and right. Judges are in the courtroom to rule on cases and I feel that, in this area, they should not be held back by legislation by parliament when there is a way of doing it at the moment that is correct.