You can see from this that harm is not restricted to harm likely to endanger life. As Lord Edmund-Davies commented in R v CUNNINGHAM  AC 566 HL, I find it passing strange that a person can be convicted of murder if death results from, say, his intentional breaking of anothers arm, an action, which, while calling for severe punishment, would in most cases be unlikely to kill. I find it passing strange as well, dont you? In any event, as Lord Edmund-Davies said in the case, it is up to Parliament to change the law. So far, so good.
Now, it has taken six House of Lords decisions over the last twenty-odd years, and further statutory intervention, to clarify the mens rea of murder. So, I can firmly state the following propositions, of which the first three were covered in my lectures on mens rea in the other part of this Module and hence I will merely state them again without elaborating. Firstly, murder requires intention, and nothing less will suffice R v MOLONEY  1 AC 905 HL. So, forget anything to do with recklessness, here. Secondly, section 8 Criminal Justice Act 1967 provides that intention is a subjective test.
Thirdly, R v NEDRICK  3 All ER 1 CA and R v WOOLLIN  4 All ER 103 HL, provide that it will be evidence of malice aforethought if I foresee (or know) that death or grievous bodily harm are virtually certain to happen as a consequence of my act or omission, from which a jury may, but not must, find that I have intention. Fourthly, MOLONEY provides that the mens rea of murder need not be aimed at a specific person. Therefore, a shot into a crowd and a bomb on an aeroplane will suffice. So will transferred malice I aim to shoot you, miss and kill someone else.
But constructive malice will not suffice, being abolished by section 1 Homicide Act 1957. For the sake of completeness, I will explain the doctrine of constructive malice. The doctrine provided that where a defendant caused death in the course of intending to resist arrest or while intending to commit a felony (an old name for a more serious offence), then that mens rea provided the mens rea for murder. So, for example, if the defendant killed the victim in the course of a robbery, the mens rea of robbery was sufficient mens rea for murder.
I would like to finish these two lectures on murder with a short discussion on the interplay between mens rea and actus reus. We know that where the defendant kills the victim but lacks mens rea at the time of the conduct that caused death, then the defendant is generally not guilty. In other words, that the mens rea and actus reus must be concurrent. However, what is the position where the mens rea was formed and an attack takes place, though the victim does not die until later when there is no mens rea, for example when, thinking the victim was already dead, the attacker in fact kills the victim whilst disposing of the body?
I agree that this is an unlikely scenario but it happened in THABO MELI v R  1 WLR 228 PC. Here, the four defendants, as part of a plan, attempted to kill the victim by hitting him over the head. Thinking the victim was dead, the defendants then rolled him over a cliff to fake an accident. The victim was alive when rolled over the cliff and died later from exposure. The defendants were found guilty of murder. So, what do we make of this case? Well, it seems that if death is caused during a series of acts as part of a pre-conceived plan, then the earlier mens rea is sufficient for a conviction.
Inevitably, then, what if there is no earlier pre-conceived plan? It appears that the approach will be the same where the conduct which causes death was either undertaken in order to conceal the earlier conduct which was accompanied by mens rea; or where it is part of the same transaction, like FAGAN. You can see this in another disposal case, R v LE BRUN (1991) 4 AER 673 CA, where the defendant was found guilty when his conduct caused the death of his wife despite the fact that he lacked mens rea at the time that he killed her.
He was guilty because, when he had hit her earlier, he had had mens rea and the act that caused her death was done in order to conceal his assault on her. OK, folks, well that is murder. However, if youre in a mood for some in depth thought about murder in the context of doctors going around wards injecting terminally ill patients with overdoses of pain relieving drugs in order to put them out of their misery (thereby creating extra bed space! ), then read the article Summing up intention NLJ August by Simon Cooper it makes grim and thought provoking reading. In the next lecture well take a peek at manslaughter.