Homicide: the mental element

AuthorRonan Keane
PositionChief Justice of Ireland
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.

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