04 Responsibility mens rea

Question 1

What is the core meaning of intention and where does it come from?

Answer 1

• Moloney [1985] instated the ‘golden rule’ that judges normally avoid defining intention by telling the jury to give it its normal meaning
• The jury must be satisfied beyond reasonable doubt that the defendant intended the result
• Duff (1990) suggested a test of failure to determine intention i.e. would the defendant consider their plan a failure was the result not brought about

Question 2

How is Intention Distinguished from Foresight and Motive?

Answer 2

• If a defendant believes that it is impossible for his action to cause a result then they cannot be said to intend it
• The greater the possibility of a consequence the more likely it is that the consequence was foreseen, and if foreseen, the more likely it was also intended
• An act can still be intended even if there is no motive to commit it, as in Hales [2005] where the defendant ran over a police officer whilst attempting to escape arrest

Question 3

What is the leading case on cases of oblique intention?

Answer 3

• Woollin [1998] is the leading case on oblique intention, creating the test of:
  1. Virtual certainty; The defendant will only be guilty if the jury is sure that death or serious harm was a virtual certainty of the act
  2. Barring any unforeseen intervention

Question 4

What is the law on Intoxication and Intent?

Answer 4

• If the defendant was drunk but had a purpose then he intended the act - ‘a drunk intent is still an intent’ - Majewski [1977]
• If the drunk defendant lacked intent he is not guilty of a specific intent crime but may be guilty of a basic intent one

Question 5

Explain Cunningham Recklessness:

Answer 5

• Cunningham Recklessness has 2 requirements:
  1. The defendant was aware that there was a risk that his or her conduct would cause a particular result
  2. The risk was an unreasonable one for the defendant to take
• It is only necessary to show that the defendant foresaw a risk. It does not need to be highly likely to occur
• The defendant must foresee the risk, it need not be foreseeable by the normal person i.e. Stephenson [1979] in which the defendant’s schizophrenia meant that he could not foresee the risk of fire
• The risk must be unreasonable
• If the defendant would have foreseen the risk sober, they can be deemed to have seen the risk when intoxicated - Bennett [1995]

Question 6

Explain the Old Caldwell [1981] Recklessness:

Answer 6

• There were 2 requirements:
  1. The defendant was aware of a risk, or,
  2. There was an obvious and serious risk and they failed to consider whether or not there was a risk
• Caldwell recklessness included defendants not aware of an obvious risk, causing outcry in Elliot [1983] where a 14 year old girl with learning difficulties set alight to a shed and was liable even though she was incapable of foreseeing the risk
• R v G & R [2003] put an end to Caldwell recklessness

Question 7

What are the alternatives to Cunningham and Caldwell recklessness?

Answer 7

• R v G provided the opportunity to introduce a new alternative:
• Potentially; ‘Defendants should be reckless if they were aware of the risk or failed to consider a risk which should have been obvious to a reasonable person of their age and mental abilities’

Question 8

What is the meaning of negligence and what are the disputes which arise?

Answer 8

• If the defendant behaved in the way that a reasonable person would not, then they are negligent
• The disputes are:
  1. What if the defendant acted out of fear or panic? To what extent can a person acting in fear be held to the standard of the reasonable person
  2. Is the standard expected ‘reasonable’ or ‘ordinary’?
  3. Some people may not be able to act as a reasonable person would. Simester, Sullivan and Virgo (2013) argue that the defendant should be judged as ‘a reasonable person with the defendant’s physical characteristics’
• Negligence is gross in a manslaughter conviction

Question 9

What is the difference between basic and specific intent crimes?

Answer 9

• Specific intent offences require intention as their mens rea
• Basic intent4 crimes are satisfied by the mens rea of recklessness
• If the defendant has the mens rea requirement for the offence and is intoxicated then they are guilty
• If the defendant is involuntarily intoxicated and lacks the mens rea for the offence then they are not guilty
• If the defendant is voluntarily intoxicated and lacks the mens rea then the defendant will be deemed reckless, but will be acquitted fo an offence requiring intention

Question 10

What is Transferred Malice?

Answer 10

• Transferred malice can refer to the mens rea in any offence
• The mens rea must match up to the actus reus for transferred malice to be found - Pembliton [1874]
• In AG’s ref 3/94 found that transferred malice of murder could not apply to a foetus as it did not constitute a person in the eyes of the law

Question 11

What is the general rule for the relationship between actus reus and mens rea and what are the exceptions?

Answer 11

• The actus reus and mens rea must coincide for the defendant to be guilty
• However there are difficulties:
  1. If the defendant had the mens rea at one point in time but later commits the actus reus without the mens rea - Meli [1954] found the defendant guilty of murder for ‘one transaction’
  2. Fagan [1969] - the defendant commits the actus reus without mens rea but then adopts the mens rea. If the two coincide then he is guilty

Question 12

What is the meaning of mens rea?

Answer 12

• The mental element of the crime
• Intention, recklessness and knowledge all relate to mens rea
• Mens rea ensures that only blameworthy conduct is punished