1B - Mens Rea

Question 1

What does mens rea mean

Answer 1

‘guilty mind’ - the mental element of the crime

Question 2

What are the types of mens rea?

Answer 2

• Intention
• Recklessness
• Negligence

Question 3

Intention

Answer 3

• most ‘blameworthy’ state of mind
• highest level of mens rea
• most serious crimes - murder, robbery etc

Question 4

Direct intention

Answer 4

Mohan

D’s main aim or purpose to bring about the unlawful consequence

Question 5

Indirect intention tests

Answer 5

Woolin
(1) the reasonable person would have known the consequence was virtually certain to happen (objective limb) and
(2) the defendant knew the consequence was virtually certain to happen (subjective limb)
Confirmed in Matthews and Alleyne

Question 6

Recklessness

Answer 6

• defined as taking an unjustified risk (conscious risk taking)
• for some crimes - recklessness is enough for mens rea
• R v Cunningham confirmed in R v G and R
• maliciousness - defined in Savage

Question 7

Negligence

Answer 7

• A person is negligent if he fails to reach the standards of a reasonable person. Problematic as its an objective test
• Used in civil law and isn’t common in criminal law

Question 8

Negligence - criminal offences

Answer 8

• some statutory offences eg s3 Road Traffic Act 1988 ‘driving without due care and attention’
• manslaughter can be committed by ‘gross negligence’

Question 9

Strict liability

Answer 9

Offences where the defendant is guilty if they commit the actus reus. No need to prove mens rea. D’s intention irrelevant
Most created by statute - but not always clear if offence has mens read and the court must decide

Question 10

How do judges decide if an offence is one of strict liability?

Answer 10

1. presumption of mens rea - rebutted if statute expressly states no mens rea need
2. look for words indicating mens rea - eg. ‘knowingly’, ‘intentionally’, etc
3. If statute silent on mens rea - do other related sections of Act have specific words

Question 11

Presumption of mens rea

Answer 11

With offences that don’t mention anything on mens rea the judges start with a presumption in favour of mens rea. If it is truly criminal then this presumption stays and mens rea has to be proven
Truly criminal = term of imprisonment
But if the offence is regulatory/relates to a social concern then this presumption can be rebutted and mens rea doesn’t need to be proven
- Sweet v Parsley
- Gammon (Hong Kong) Ltd v A.G

Question 12

Quasi-criminal offences

Answer 12

• don’t carry a term of imprisonment
• regulatory or an area of social concern
• more likely to be strict liability

Question 13

If an offence is truly criminal, is it more or less likely to be criminal

Answer 13

Less likely

Question 14

Transferred malice defintion

Answer 14

Can be guilty even if intended to commit a similar crime against a different victim. The rule of transferred malice is that the mens rea can be transferred to from the intended victim to the actual victim if it is a similar offence
Latimer and Pembilton

Question 15

General malice

Answer 15

The defendant may not have a general victim in mind but has the mens rea generally

Question 16

Contemporaneity rule

Answer 16

For an offence to take place, both the actus reus and mens rea must be present at the same time as there has to be coincidence of these two elements

Question 17

Continuing Act Theory

Answer 17

Where there is a series of linked acts or omissions, this can be treated as a single continuing acts providing at some point while the act is still going on the defendant has the necessary mens rea. If this occurs, the defendant can still be guilty
Fagan v MPC

Question 18

Series of Acts Theory

Answer 18

Sometimes a series of acts can be treated by the courts as one transaction with the mens rea continuing throughout
Thabo Meli v R
CHURCH