3- Mens Rea Flashcards
What does Mens rea mean?
is concerned with the state of mind of the defendant. It is the mental element of the crime
What are the different levels of Mens rea?
- Intention (includes direct and oblique)
- Cunningham recklessness (Subjective) applicable to NFOAPs
- Caldwell Recklessness (objective) (now overruled)
- Subjective recklessness where it is unreasonable to take a risk – applicable for crimes against property
- Negligence – standard normally associated with civil law
What does direct intent mean?
Where D embarks on a course of conduct seeking to bring about a result which in fact occurred.
What does oblique intent mean?
Where D intends a particular result and carries out actions to bring about that result which results in other consequences not directly intended by D.
What are the Factors the courts have considered?
Whether the test should be objective or subjective
The degree of foresight required
The distinction between recklessness/intention
What does recklessness mean?
In general terms, recklessness is the taking of an unjustified risk
In law the meaning is defined in case law
What does Cunningham Recklessness (Subjective) mean?
Did the Defendant foresee the kind of harm that in fact occurred, might occur, and nevertheless went ahead?
If yes, they are liable, if not, they are not liable.
Problem – allowed too many to escape liability
What does Caldwell (Objective) recklessness mean?
has not given any thought to the possibility of there being any such risk or
has recognised that there was some risk and has nonetheless gone on to do it
What does Negligence mean?
Negligence is the standard normally associated with civil law
It has a minor role in criminal law
What does Strict liability mean
Offences which require no mens rea in relation to one or more aspects of the actus reus.
What are some Driving offence?
Speeding, Drink driving, No insurance, No road tax, Not wearing a seatbelt, Not wearing crash helmet
What is the size of the penalty?
Generally where the size of penalty is small the more likely it will be held to be an offence of strict liability but this will be weighed against the other factors.
What is the justification for strict liability?
Strict liability can often operate harshly and cause injustice. So why have it at all?
