1.1 Mens Rea (State of Mind)

Question 1

Can Mens Rea alone amount to an offence?

Answer 1

Mens rea alone will not amount to an offence; thinking about committing a crime is not committing a crime. In fact, the default position is that the application of the mind is essential for liability to exist as acts (or omissions) alone cannot amount to a crime unless they are accompanied by ‘mens rea’ at the time of the act (or omission).

Question 2

What is Specific Intent?

Answer 2

Crimes of ‘specific’ intent are only committed where the defendant is shown to have had a particular intention to bring about a specific consequence at the time of the criminal act. Murder is such a crime as is burglary with intent (Theft Act 1968, s. 9(1)(a)). The common feature with these offences is that the intention of the offender is critical—without that intent, the offence does not exist.

Question 3

What is Basic Intent?

Answer 3

Other criminal offences require no further proof of anything other than the ‘basic’ intention to bring about the given circumstances. For example, the offence of maliciously wounding or inflicting grievous bodily harm (Offences Against the Person Act 1861, s. 20) or taking a conveyance (Theft Act 1968, s. 12(1)).

Question 4

What is Intent?

Answer 4

‘Intent’ is a word often used in relation to consequences. If a defendant intends something to happen, he/she wishes to bring about a consequence. In some offences, say burglary under s. 9(1)(a) of the Theft Act 1968, the defendant’sintentionmay be very clear; he/she may enter a house as a trespasserintendingto steal property inside.

Question 5

Criminal Justice Act 1967 (under section 8) says that a court/jury, in determining whether a person has committed an offence:

Answer 5

• shall not be bound in law to infer that he intended or foresaw a result of his actions by reason only of its being a natural and probable consequence of those actions; but
• shall decide whether he did intend or foresee that result by reference to all the evidence, drawing such inferences from the evidence as appear proper in the circumstances.

Question 6

Two cases in the House of Lords (R v Moloney [1985] AC 905 and R v Hancock [1986] AC 455) demonstrates the foresight of the probability. Explain this?

Answer 6

Following those cases it is settled that foresight of the probability of a consequence does not amount to an intention to bring that consequence about, but may be evidence of it.

So you cannot claim that a defendantintendeda consequence of his/her behaviour simply because it was virtually certain to occur. What you can do is to put evidence of the defendant’s foresight of that probability before a court, which may infer an intention from it.

Question 7

Explain the concept of putting evidence of the defendant’s foresight of that probability before a court, which may infer an intention from it?

Answer 7

• at the time of the criminal act there was aprobabilityof a consequence;
• the greater the probability of a consequence, the more likely it is that the defendantforesawthat consequence;
• if the defendant foresaw that consequence, the more likely it is that the defendantintendedit to happen.

Question 8

What is Recklessness?

Answer 8

Recklessness is a state of mind that is relevant to a large number of crimes and is essentially concerned with unjustified risk-taking. Following the case of R v G and R [2003] UKHL 50, the approach taken to the interpretation of the word ‘reckless’ is that it will be ‘subjective’.

Question 9

Explain subjective recklessness?

Answer 9

The requirements of subjective recklessness can be found in the case ofRvCunningham[1957] 2 QB 396 and are satisfied in situations wherethe defendantforesees the consequences of his/her actions as being probable or even possible.

Question 10

Inthe House of Lords held that a person acts recklessly with respect to which three areas?

Answer 10

1. a circumstance when he/she isawareof a risk that it exists or will exist;
2. a result when he/she isawareof the risk that it will occur;
3. and it is, in the circumstances known to him/her,unreasonableto take that risk

Question 11

How to establish recklessness?

Answer 11

To establish recklessness therefore requires consideration of the degree of risk that is actually foreseen by the defendant of which he/she is aware and whether it was reasonable.

Question 12

Explain Awareness?

Answer 12

Here we are concerned with what was going on in the mind of the defendant—were they aware of the risk? For example, in G the defendants were two children (aged 11 and 12) who set fire to some newspapers in the rear yard of a shop premises whilst camping out. The children put the burning papers under a wheelie bin and left them, expecting the small fire to burn itself out on the concrete floor of the yard. In fact, the fire spread causing around £1,000,000 of damage. The children were convicted of criminal damage under the former law (‘objective’ recklessness) on the basis that the fire would have been obvious to any reasonable bystander. The convictions were quashed by the House of Lords who reinstated the general subjective element described above. A reasonable bystander might well have been aware of the risk of such activity—the children were not.

Question 13

Explain reasonableness?

Answer 13

The risk a defendant is aware of may be small but that does not automatically mean that it is reasonable to take that risk. Each situation will be decided on its own merits but whether the risk is reasonable or not will be decided by the court—not the defendant. What this does is to introduce an objective element into the recklessness equation but even though that is the case, it must be stressed that recklessness is still subjective—the key question is whether the defendant was aware of the risk.

Question 14

Explain the Different crime= Different Risk?

Answer 14

Depending on the crime, the nature of the risk the defendant needs to be aware of will change. For example, to commit an offence under s. 20 of the Offences Against the Person Act 1861 (wounding or inflicting grievous bodily harm (see chapter 1.9)), the defendant must unlawfully and recklessly wound or inflict grievous bodily harm on the victim. Here ‘recklessness’ means that the defendant was aware of the risk that some harm would befall the victim. If we consider simple criminal damage under s. 1(1) of the Criminal Damage Act 1971 (see chapter 1.15) then the risk the defendant would need to be aware of to be reckless is that property belonging to another would be damaged or destroyed.

Question 15

What is Malice?

Answer 15

The term ‘malice’ is particularly relevant to ss. 18, 20, 23 and 24 of the Offences Against the Person Act 1861 (offences relating to grievous bodily harm/wounding and poisoning). It should not be considered as one relating to ill will, spite or wickedness. ‘Malice’ requires either the actual intention to cause the relevant harm or at least foresight of the risk of causing some harm (though not the extent of the harm) to a person

Question 16

What is meant by wilfully?

Answer 16

‘Wilfully’ is mentioned in offences such as child cruelty (s. 1 of the Children and Young Persons Act 1933). The term ‘wilfully’ should not be understood in a literal sense as meaning ‘deliberate’ or ‘voluntary’. It is taken to mean intentionally or recklessly (subjective) (Attorney-General’s Reference (No. 3 of 2003) [2005] QB 73).

Question 17

Explain dishonestly?

Answer 17

The expression ‘dishonesty’ is defined for certain purposes in s. 2 of the Theft Act 1968. However, it has also been extended by common law decisions of the courts (as per the decision in Barlow Clowes and Royal Brunei Airlines) and it is critical, in dealing with offences requiring proof of dishonesty (such as theft or fraud), that you identify the nature of the state of mind required and the ways in which it can be proved/disproved.

Question 18

Explain Knowing?

Answer 18

The term ‘knowing’ is relevant to several offences such as s. 22 of the Theft Act 1968 (handling stolen goods). One knows something if one is absolutely sure that it is so. Since it is difficult to be absolutely sure of anything, it has to be accepted that a person who feels ‘virtually certain’ about something can equally be regarded as ‘knowing’ it (R v Dunne (1998) 162 JP 399).

Question 19

Explain Belief?

Answer 19

The degree of certainty required to be experienced by an accused to create a ‘belief’ would appear to be the same for ‘knowing’—the difference is that knowing something implies correctness of belief whereas a ‘belief’ could turn out to be mistaken. This is how ‘belief’ has been interpreted by the courts for the purposes of handling stolen goods (s. 22 of the Theft Act 1968) where it has been stressed that there is a need to distinguish belief from recklessness or suspicion and that it is not sufficient that an accused believed it to be more probable than not that the goods were stolen.

Question 20

What is negligence?

Answer 20

The most important common law criminal offence that can be committed by negligence is manslaughter (manslaughter by gross negligence). Other offences that can be committed by negligence do not usually contain the word itself but attract that test in relation to the mental element (for example, offences involving standards of driving).

Question 21

What is Strict Liability?

Answer 21

Strict liability generally means that there is little to prove beyond the act itself; however, in most cases it is more accurate to say that there is no need to provemens reain relation to one particular aspect of the behaviour. There have been isolated instances in which the courts have held that an offence does not require anymens reato be proved. For example, inDPPvH[1997] 1 WLR 1406 it was stated that the offence of driving with excess alcohol, contrary to the Road Traffic Act 1988, s. 5 (seeRoad Policing, chapter 3.5) did not require proof of anymens rea.

Question 22

Provide situations of strict and absolute liability?

Answer 22

Situations where strict or absolute liability is imposed are usually to enforce statutory regulation (e.g. road traffic offences), particularly where there is some social danger or concern presented by the proscribed behaviour.

Question 23

Explain the general rule of strict liability?

Answer 23

As a general rule, however, there is a presumption thatmens reais required for a criminal offence unless parliament clearly indicates otherwise (B (A Minor)vDPP[2000] 2 AC 428). This rule should be borne in mind, not only when approaching the rest of the material in this Manual, but also when considering criminal law in general.

Question 24

Explain transfered mens rea?

Answer 24

The state of mind required for one offence can, on occasions, be ‘transferred’ from the original target or victim to another.This only operates if the crime remains the same. In other words, a defendant cannot be convicted if he/she acted with themens reafor one offence but commits theactus reusof another offence.

Question 25

The issue of transferredmens reacan be important in relation to the liability of accessories?

Answer 25

If the principal’s intentions are to be extended to an accessory, it must be shown that those intentions were either contemplated and accepted by that person at the time of the offence, or that they were ‘transferred’.
A person (X) encourages another (Y) to assault Z. Y decides to attack a different person instead. X will not be liable for that assault because it was not contemplated or agreed by X. If, however, in trying to assault Z, Y happens to injure a third person inadvertently, then ‘transferredmens rea’ may result in X being liable for those injuries even though X had no wish for that person to be so injured.