1B.1.2 Mens rea

Question 1

Mens rea

Answer 1

The mental element (guilty mind) or the fault element of an offence.

Question 2

Strict Liability Offences

Answer 2

• Strict Liability Offences do not require proof of mens rea. The actus reus is simply enough for the offence. E.g. Rape, drink driving

Question 3

What are the different levels of mens rea?

Answer 3

Highest: Intention / specific intention
Middle: Recklessness
Lowest: Negligence

Question 4

R v Clarke (1972)

Answer 4

A woman transferred some shopping basket items into her own bag before paying for them. She was able to prove that she suffered from absentmindedness due to depression. She therefore lacked the mens rea and was acquitted.

Question 5

Mohan (1975)

Answer 5

The defendant refused to stop when a policeman signalled for him to do so. Instead, he drove towards the officer. This shows a direct intention to scare or injure the policeman.

Question 6

Problem with proving intention.

Answer 6

The main problem with proving intention is when the D’s main aim was not the prohibited consequence, but – in achieving the aim – they realised or foresaw that they would cause those consequences. This is referred to as ‘foresight of consequences’ and forms the basis of ‘oblique’ or ‘indirect’ intent.

Question 7

Woollin (1998)

Answer 7

The defendant thew his 3-month-old baby against a wall. The baby suffered head injuries and died. Held: the consequence must have been a virtual certainty and the defendant must have realised this.

Question 8

Cases where oblique intent has been used

Answer 8

• Hancock and Shankland (1986)
• Matthews and Alleyne (2003)

Question 9

Hancock and Shankland (1986)

Answer 9

A miner dropped lumps of concrete onto the road, with the aim of stopping people from getting to work. One of these lumps of concrete fell onto a car, killing the driver. D intended to frighten someone to stop him going to work but did not intend to kill or seriously injure him. Held: Ds guilty due to oblique intent.

Question 10

Matthews and Alleyne (2003)

Answer 10

D threw the victim (who could not swim) off a 25ft bridge into a river. V drowned. Court of Appeal held: The judgement in Woollin meant foresight of consequence is not intention, but a rule of evidence. So if the defendant foresaw the virtual certainty of death/serious injury, the jury is entitled to find intention but does not have to.

Question 11

Is foresight of consequences intention?

Answer 11

Foresight of consequence is not the same as intention, but can be evidence of intention.

A jury may use this evidence to find that the defendant had intention, but only where harm caused as a result of their actions was a virtual certainty and the defendant realised this. This was explained in Woollin (1998).

Question 12

History of Oblique intent

Answer 12

In R v Moloney (1985), it ruled that foresight of consequences was not intention; it was only evidence from which intention could be inferred in accordance with s8 CJA 1967.

The precedent in this case was later overruled by Nedrick (1986), where the court stated the jury must be asked:
- How probable was the consequence which resulted from the D’s voluntary act?
- Did the D foresee that consequence?

This remained law until 1998.
- The later decision in R v Woollin (1998) made the law uncertain, when the House of Lords spoke about intention being found from foresight of consequences.

Question 13

Nedrick (1986)

Answer 13

D had a grudge against a woman and poured paraffin through the letterbox of her house and set it alight. A child died in the fire. D was convicted of manslaughter.

Question 14

Moloney (1985)

Answer 14

D and step-father had drunk a considerable amount of alcohol at a party. They played a game with a shotgun and D pointed gun in step-father’s face. Stepfather said “You don’t have the guts to pull the trigger.” D pulled the trigger. D convicted of murder but conviction was quashed on appeal.

Question 15

Subjective Recklessness

Answer 15

Where the defendant knows there is a risk of the consequence happening but takes the risk.

This is a subjective test and can be seen in the case of Cunningham (1957).

Question 16

R v Cunningham (1957)

Answer 16

D tore down a gas meter on an empty house to steal the money in it. Gas seeped into the house next door where a woman was affected. Held: D not guilty as the D did not realise the risk of gas escaping into the house next door.

Question 17

Offences where recklessness is sufficient for the Mens Rea

Answer 17

• Assault and battery = Common law
• Assault occasioning ABH = s47 of the OAPA 1861
• Maliciously wounding = s20 of the OAPA 1861

Question 18

Negligence

Answer 18

Where there is a failure to meet the standards of the reasonable person.

Question 19

Reasonable person

Answer 19

‘The man on the Clapham Omnibus’ (average person).

Question 20

When is negligence used in criminal law?

Answer 20

It is not commonly used in criminal law, and much more commonly found in tort law.

Gross Negligence Manslaughter is an example of an offence where Negligence can apply as Mens Rea. As seen in R v Adomako (1994).

Question 21

What applies when an offence is strict liability?

Answer 21

• The defendant must be proved to have done the actus reus
• This must be a voluntary act on his part
• There is no need to prove mens rea for at least part of the actus reus
• No ‘due diligence’ defences will be available
• The defence of mistake is not available.

Question 22

Due Diligence

Answer 22

Where the D has done all that was within his power not to commit an offence.

Question 23

Harrow LBC v Shah and Shah (1999)

Answer 23

Ds frequently reminded staff to check IDs. However, a lottery ticket was sold to a 13 year old, who was mistaken to be 16. D1 was in the backroom and D2 was not on the premises but both Ds were charged and found guilty. Held: D can still be found guilty if they did everything in their powers to prevent the offence.

Question 24

Callow v Tillstone (1900)

Answer 24

A butcher asked a vet to examine a carcass to see if it was fit for human consumption. The vet said it was safe for human consumption so the butcher offered it for sale. In fact, it was unfit for human consumption and the butcher was convicted of the offence of ‘exposing unsound meat for sale’.

This case shows there is no automatic due diligence defence.

Question 25

Transferred Malice

Answer 25

The defendant can be found guilty if he intended to commit a similar crime but against a different victim.

• Example: Aiming a blow at one person with the necessary mens rea for an assault causing actual bodily harm (ABH), but actually hitting another person.

Cases: Latimer, Mitchell, Gnango

Question 26

Latimer (1886)

Answer 26

D aimed a blow with a belt at a man in a pub because that man had attacked him. The belt bounced off the man and struck a woman in the face. D found guilty of an assault against the woman, although he had not meant to hit her.

Question 27

Mitchell (1983)

Answer 27

The D tied to jump the queue at the Post Office. An elderly man questioned his behaviour and challenged him. The D hit the old man and pushed him. The man fell back onto others in the queue, including an elderly lady who fell and broke her leg. She later died. Here, the mens rea directed towards the old man was transferred to the offence against the old woman.

Question 28

Gnango (2011)

Answer 28

Gnango and ‘Bandana Man’, shot at each other. Bandana Man hit an innocent passerby and killed her. Gnango was tried and convicted of her murder. Held, By agreeing to the shoot-out with Bandana Man, the D was attempting to murder Bandana Man and also aiding and abetting Bandana Man’s attempt to murder him.

Question 29

Can transferred malice apply if the mens rea is for a completely different offence?

Answer 29

No - as seen in the case of Pembliton.

Question 30

Pembliton (1874)

Answer 30

The D had been fighting and threw a stone, intending it to hit people with whom he had been fighting. The stone hit and broke a window which was criminal damage. The intention to hit people could not be transferred to breaking the window as there was a different mens rea for the two offences.

Question 31

Coincidence of actus reus and mens rea

Answer 31

In order for an offence to take place, both actus reus and mens rea must be present at the same time.

Cases: Thabo Meli v R, Church

Question 32

Church (1965)

Answer 32

D had a fight with a woman and knocked her out. He tried (unsuccessfully) to bring her round. He thought she was dead and he put her in the river. She drowned. Held: D’s conviction for manslaughter was upheld despite the time lag.

Question 33

Thabo Meli v R (1954)

Answer 33

Ds attacked a man and believed they had killed him, they then pushed his body over a low cliff. In fact, the man had survived the attack but died of exposure when unconscious at the foot of the cliff. Ds were found guilty of murder. Legal principle: To be guilty of an offence, the required MR and AR need to be combined in a series of acts.

Question 34

Continuing acts

Answer 34

There are some circumstances where the courts will view the events as a continuing act. When the mens rea and actus reus do coincide, the D will be guilty. This can be seen in the case of Fagan v Metropolitan Police Commissioner (1968).

Question 35

Fagan v Metropolitan Police Commissioner (1969)

Answer 35

D was told by a police officer to park by a kerb. In doing this, D drove on to the policeman’s foot, without realising he had done so. When the policeman pointed out what had happened, he asked the D several times to move the car off his foot, but D refused. Eventually, Fagan did move the car.

Held: D was convicted. Once Fagan knew the car was on the police officer’s foot he had the required MR. As the AR (the car putting force on the foot) was still continuing, the two elements were then present together. The AR in this case was a continuing act, so long as the defendant developed the MR at some time while the act was continuing, then he could be guilty.