Homicide: the mental element

• Author: Ronan Keane
• Position: Chief Justice of Ireland
• Pages: 66-78

HOMICIDE: THE MENTAL ELEMENT

THE HON. MR. JUSTICE RONAN KEANE*

In contrast [to the civil law system], in a

system such as our own which has never

experienced a radical break with the past,

where there has been ‘no wholesale wiping out

of the legal wisdom of centuries, no division

of the law into a pre- and post- revolutionary

era,’ the criminal law appears as a continuum

that spans the ages and accordingly, as a

phenomenon that ought to be approached

historically as well as analytically, with an eye

to its evolutionary processes as well as its

current arrangements.

(McCauley and McCutcheon, Criminal

Liability, A Grammar,vii)

The authors of a recent Irish work on criminal liability

thus draw attention to the importance of recognising the

historical perspective when analysing difficult topics in the

criminal law. This certainly applies with particular force to

the topic which I have chosen to discuss: the mental element

in homicide.

Reading judgments from various common law

jurisdictions on this area of the law would make one long at

times for the simplicity of the biblical injunction, “Thou shalt

not kill”. But, apart from any other considerations, that

attractively simplistic approach breaks down when one turns

66 Judicial Studies Institute Journal [2:1

* Chief Justice of Ireland. The article is based on a lecture given to the Judicial

Studies Board of Northern Ireland in September 2001 which was published in the

Northern Ireland Law Quarterly, Vol. 53 No. 1. Our thanks to the JSB and the

N.I.L.Q. for allowing us to reprint it here.