This chapter considers the ingredients of successful action for malicious prosecution. The claimant must show: that the defendant prosecuted him; that the prosecution ended in the defendant’s favour; that there was no reasonable and probable cause for the prosecution; and that the defendant was actuated by ‘malice’. It covers not merely criminal prosecutions but certain forms of abuse of civil process, for example tort claims alleging deceit or malice. Damage also in all cases is a necessary ingredient. The tort, while ancient, is still being actively litigated, and the chapter analyses a number of recent cases in the higher appellate courts.
Chapter
10. Malicious Prosecution
Chapter
5. Fault
This chapter considers the different types of fault required by criminal law. It examines the definitions and/or applications of the following concepts: intention, recklessness, malice, knowledge, and negligence.
Chapter
12. Murder
David Ormerod and Karl Laird
Murder is generally regarded as the most serious crime (apart perhaps from treason) in England and Wales, yet it has not been defined by statute. Anyone of sound memory and of the age of discretion can commit murder, but a corporation or other organization cannot be tried for murder because it cannot be sentenced to life imprisonment, the only penalty allowed by law. This chapter discusses the offence of murder, who can commit murder, where it can be committed, who can be the victim and whether killing a foetus/child in the womb or in the process of leaving the womb is murder. It also examines whether a dead person is capable of being murdered, unlawful killing as an important element of murder, the mens rea of murder or ‘malice aforethought’, constructive malice, the sentence for murder and the Law Commission’s proposed reforms for the offence of murder.
Chapter
3. The elements of a crime: mens rea
David Ormerod and Karl Laird
This chapter examines the mens rea or mental fault of the accused. Because an actus reus is treated in law as a bad thing, an intention to cause it is, in law, a bad intention, a guilty mind. Similarly, consciously taking an unjustified risk of causing an actus reus—that is, recklessness—is also a bad state of mind. Unintentionally causing an actus reus by negligence may also be regarded as legally blameworthy. Each of these implies different degrees of ‘fault’. The chapter also discusses subjective and objective fault, intention in crimes other than murder, the distinction between motive and intention, subjective recklessness and malice, wilful blindness, suspicion and reasonable grounds to suspect, the correspondence principle and constructive crime, coincidence in time of actus reus and mens rea, ignorance of the law, absence of a ‘claim of right’ as an element in mens rea and proof of intention and foresight.
