1.1 Mens Rea (State of Mind)

Question 1

Section 8 Criminal Justice Act 1967

Answer 1

A court / jury, in determining whether a person has committed an offence:

• 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 2

Does the foresight of the probability of a consequence amount to an intention to bring that consequence about?

Answer 2

No, but it may be evidence of it

Question 3

Can you claim that a defendant intended a consequence of his / her behaviour simply because it was virtually certain to occur?

Answer 3

No, but you can put evidence of the defendant’s foresight of that probability before a court, which may infer an intention from it

Question 4

What is a crime of specific intent?

Answer 4

Where the defendant is shown to have had a particular intention to bring about a specific consequence at the time of the criminal act.
The intention is critical - without it, the offence does not exist.

Question 5

Give two examples of crimes of specific intent.

Answer 5

Murder and burglary with intent (s. 9(1)(a))

Question 6

What is the difference between offences of specific and basic intent?

Answer 6

In offences of basic intent, recklessness will often be enough to satisfy the mental element

Question 7

How does intoxication affect mens rea?

Answer 7

It potentially removes the necessary mens rea required for a defendant to commit an offence

Question 8

Is intoxication a defence?

Answer 8

No

Question 9

What are the two categories of intoxication?

Answer 9

Voluntary - you got yourself in that condition

Involuntary - you are not responsible for getting in that condition

Question 10

How could a voluntarily intoxicated defendant provide a defence for a specific intent offence (e.g. murder)?

Answer 10

They may be able to show they were so intoxicated that they were incapable of forming the mens rea required for the offence

Question 11

Can a voluntarily intoxicated defendant use their intoxication as a defence for an offence of basic intent?

Answer 11

No, as a defendant is still capable of forming basic intent even when completely inebriated

Question 12

Can defendants who were involuntarily intoxicated at the time of a basic intent offence use their intoxication as a defence?

Answer 12

Yes, they may be able to say that they lacked the mens rea for that basic intent offence

Question 13

Is it regarded as involuntary intoxication if the defendant simply misjudges the amount or strength of intoxicants which they take?

Answer 13

No

Question 14

Is drunken intent still intent?

Answer 14

Yes

Question 15

What are the sources of intoxication?

Answer 15

Drink and drugs

Question 16

Can a ‘mistaken belief’ arising from a defendant’s intoxicated state be raised as a defence?

Answer 16

Yes, sometimes, e.g. in cases of criminal damage, but has not been accepted in cases of murder, rape and manslaughter

Question 17

Can defendants who have become intoxicated in order to gain false courage to go and commit a crime claim a defence of intoxication?

Answer 17

No, even if the crime is one of specific intent, as they have already formed the intent required

Question 18

A person acts recklessly with respect to:

Answer 18

• a circumstance when he/she is aware of a risk that it exists or will exist;
• a result when he/she is aware of the risk that it will occur;

and it is, in the circumstances known to him/her, unreasonable to take that risk

Question 19

Is recklessness subjective?

Answer 19

Yes - you have to take into account the defendant and whether they would have been likely to be aware of the risk (e.g. children)

Question 20

In the context of recklessness, who decides if a risk is reasonable or not?

Answer 20

The court

Question 21

Define ‘malice’.

Answer 21

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 22

Define ‘wilfully’.

Answer 22

Intentionally or recklessly

Question 23

Define ‘knowing’.

Answer 23

A person who feels ‘virtually certain’ about something can equally be regarded as ‘knowing’ it

Question 24

What is the difference between ‘knowing’ and ‘believing’?

Answer 24

Knowing something implies correctness of belief, whereas a ‘belief’ could turn out to be mistaken

Question 25

Define ‘negligence’.

Answer 25

Generally concerned with the defendant’s compliance with the standards of reasonableness of ordinary people

Focuses on the consequences of the defendant’s conduct rather than demanding proof of a particular state of mind

Question 26

Define ‘strict liability’.

Answer 26

There is no need to prove mens rea in relation to one particular aspect of the behaviour.

Question 27

Define ‘transferred mens rea’.

Answer 27

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.

Question 28

What is the difference between basic and specific intent offences?

Answer 28

Specific intent refers to offences where intention is necessary to satisfy mens rea. Basic intent refers to offences where either intention or recklessness will satisfy mens rea.