Chapter 14- Mens rea

Question 1

Whats is mens rea?

Answer 1

• The mens rea of a criminal offence examines the state of mind of the defendant at the time of committing the offence
• Generally speaking it’s what’s in a person’s mind that determines their guilt

Question 2

What are the levels of mens rea?

Answer 2

• Each offence has its own mens rea, unless the offence is one of strict liability
• These offences don’t require proof of a mental element in respect of at least part of the actus reus
• To be guilty the accused must have at least the minimum level of mens rea required for an offence
• The highest level is intention, which is sometimes referred to as ‘specific intention’
• The other main types are recklessness, negligence and knowledge

Question 3

What is intention (specific intent) and an example?

Answer 3

-The case of Mohan said that the defendant’s motive or reason for doing the act isn’t relevant
-The important point is that the D decided to bring about the prohibited consequence
-In s 18 of the Offences Against the Person Act 1861, the D must wound or cause grievous bodily harm;
The mens rea is that the D must intend to cause grievous bodily harm or intend to resist arrest, if the D didn’t intend to then they cannot be found guilty

Question 4

An example of how Mohan make clear that motive is not the same as intention and isn’t relevant in deciding if the D had intention.

Answer 4

• A person may feel strongly that the banking system is causing poverty in poorer nations
• That person then steals money so they can give it to the poorer nations
• Their motive is to make sure that the poor receive money
• Which is irrelevant in deciding if they have the mens rea for theft

Question 5

What is direct and oblique intent?

Answer 5

• In majority of cases the D has direct intent= meaning that they intend the specific consequence to occur
• But oblique intent is where the D intedns 1 thing to happen but the actual consequence which occurs is another thing

Question 6

What is foresight of consequences and case examples?

Answer 6

• Where the D’s aim was not the prohibited consequence (intend something else)
• If in achieving the other thing, the D foresaw that they would cause those consequences then they can be found guilty
• Nedrick
• Woolin

Question 7

What are the problems with the decision in Woolin?

Answer 7

-1st= the word ‘infer’ is used in s 8 of the Criminal Justice Act 1967 and is why it was used in Nedrick
-2nd= if the word ‘find’ means that foresight of consequence is intention and not merely evidence of it
-There has also been conflicting decisions on the point ‘suffice to establish the necessary intent’
=in the case of Matthews and Alleyne the Court of Appeal held that the judgment in Woollin meant that foresight of consequences is not intention; it is rule of evidence

Question 8

What are the evaluations of foresight of consequences as intention?

Answer 8

• Natural And Probable Consequences
• The difficulty for jurors applying the law
• Infer or find
• 2 interpretations of Woollin

Question 9

Why is Natural And Probable Consequences an evaluation of foresight of consequences?

Answer 9

• It’s necessary to include both words in the test for intention
• This is because something can be a natural consequence without being a probable consequence
• EG, a natural consequence of sex is pregnancy but its not probable as it only occurs in a few number of cases

Question 10

why is the difficulty for jurors applying the law an evaluation of foresight of consequences?

Answer 10

• Following the case of Moloney and Hancock and Shankland, where jurors were directed on the level of probability, the law left in a state which made it difficult for judges to explain it to jurors and for jurors to apply the law
• The difficulties it caused were shown in Nedrick thought it necessary to try to make the law easier for jurors to understand and apply

Question 11

why is infer or find an evaluation of foresight of consequences?

Answer 11

• The use of the 2 question test in Nedrick operated for 12 years until Woollin
• Then the HoL thought that the 2 question test weren’t helpful
• They also find that the direction to the jury should use the word ‘find’ instead of ‘infer’

Question 12

why is 2 interpretations of Woollin an evaluation of foresight of consequences?

Answer 12

-there are still problems in the law on intention as shown by the fact that the Court of Appeal in 2 different cases has interpreted the HoL decision differently

Question 13

What is subjective recklessness and where does the explanation come from?

Answer 13

• Where the D knows there is a risk of the consequence happening but still takes the risk
• It comes from the case of Cunningham, where the word ‘maliciously’ was used to indicate the mens rea required - meaning that to have the necessary mens rea the defendant must either intend the consequence or realise that there was a risk of the consequence happening and still take the risk

Question 14

What offences are recklessness sufficient for the mens rea?

Answer 14

• assault and battery
• assault occasioning actual bodily harm (s 47 of the Offences Against the Person Act 1861)
• Malicious wounding (s 20 of the Offences Against the Person Act 1861)

Question 15

What is negligence and an example?

Answer 15

• A person is negligent if they fail to meet the standards of the reasonable man
• The d would be guilty as they didn’t act like a reasonable person would have done in the circumstances
• The the d intend or thought isn’t relevant
• EG, s 3 of the Road Traffic Act 1988 which makes it an offence to drive without due care and attention

Question 16

What are strict liability offences and an example?

Answer 16

• Those offences where mens rea is not required in respect of at least one aspect of the actus reus
• shown in Pharmaceutical Society of Great Britain v Storkwain Ltd

Question 17

What is the requirement of actus reus in nearly all strict liability offence?

Answer 17

• It must be proved in nearly all strict liability cases that the D did the relevant actus reus
• For Storkwain it meant proving that the chemist had supplied drugs without a genuine prescription, and also had to prove that the chemist had supplied drugs without a genuine prescription
• It also has to be proved that the actus reus was voluntary

Question 18

What is strict liability and mens rea, including an example?

Answer 18

• For all cases their is a presumption that mens rea is required
• Courts always start with this presumption, but if they decide that the offence doesn’t require mens rea for at least part of the actus reus then the offence is 1 of strict liability
• This idea is shown in R v Prince

Question 19

What are no fault offences and an example?

Answer 19

• a D can be convicted if their voluntary act inadvertently causes a prohibited offence
• This is even though the D was totally blameless in respect of the consequence
• EG, Callow v Tillstone= where all reasonable precautions were taken, also known as due diligence

Question 20

Recall a brief summary of strict liability.

Answer 20

Where an offence is held to be one of strict liability, the following points apply:

• the D must be proved to have done the actus reus
• must be a voluntary act
• no need to prove mens rea for at least part of the actus reus
• no ‘due diligence’ defence available
• the defence of mistake isn’t available

Question 21

What are the methods used to establish whether an offence is a strict liability offence?

Answer 21

• Presumption of mens rea
• Principle in Sweet v Parsley
• The Gammon tests
• Looking at the Acts wording
• Quasi-criminal offences
• Penalty of imprisonment
• Issues of Social concern
• Promoting enforcement of the law

Question 22

What is the presumption of mens rea, in relation to methods used to establish whether an offence is a strict liability offence?

Answer 22

• The courts have to start by assuming that’s mens rea is required but are prepared to interpret the offence as one of strict liability if Parliament has indicated this is a relevant statute
• the 1st rule is that where an Act of Parliament includes words indicating mens rea the offence is not one of strict liability
• BUT if it doesn’t make it clear that mens rea is not required, the offence will be one of strict liability

Question 23

What is the principle in Sweet v Parsley, in relation to methods used to establish whether an offence is a strict liability offence?

Answer 23

• Where an Act of Parliament doesn’t include words indicating mens rea, the judge will start by presuming that all criminal offences require mens rea
• This was made clear in Sweet v Parsley, with an important point that courts start with the presumption that mens rea is required, they look at a variety of points to decide whether the presumption should stand or should be displaced and the offence made one of strict liability

Question 24

What are the Gammon tests, in relation to methods used to establish whether an offence is a strict liability offence and an example case?

Answer 24

-Gammon Ltd v Attorney-General of Hong Kong
-It was necessary to decide whether it had been proved that they knew that their deviation was material or whether the offence was one of strict liability
-The Privy Council started with the presumption that mens rea is required before a person is held guilty and that this presumption of mens rea applies to statutory offences
-They went on to give 4 other factors to be considered;
>presumption can only be displaced if this is clearly the effects of the statutes wording
>the presumption is particularly strong where the offence is ‘truly criminal’
>the presumption can only be displaced if the statute is concerned with an issue of social concern
>Strict liability should only apply if it will help enforce the law by encouraging greater vigilance to prevent the commission of the prohibited act

Question 25

How does the wording in the act establish whether an offence is a strict liability offence and an example?

Answer 25

• where words indicating mens rea are used, the offence is not one of strict liability
• If one section doesn’t mention it, courts will look to other sections of the Act
• where other sections allow for a defence of due diligence but others don’t then it’s another possible indicator from within the statute that the offence is meant to be one of strict liability
• Harrow LBC v Shah and Shah- the defendants were charged under s 13 (1) (c) of the National Lottery Act 1933, where the subsection doesn’t include any words indicating mens rea however another subsection allows a due diligence defence making it an important point in the Divisional Court coming to the decision that the offence was a strict liability offence

Question 26

How are quasi-criminal offences used, in relation to methods used to establish whether an offence is a strict liability offence and a case example?

Answer 26

• In Gammon the Privy Council stated that the presumption that mens rea is required is particuarly strong where the offence is ‘truly criminal’
• offences which are regulatory in nature are not thought of as being truly criminal matters and are more likely to be interpreted as being strict liability
• Regulatory offences are also referred to as ‘quasi-crimes’, and affect large areas of life
• can include offences such as breach of regulations in selling food (callow v tillstone)
• Case= Alphacell Ltd v Woodward

Question 27

How are penalty of imprisonments used, in relation to methods used to establish whether an offence is a strict liability offence and a case example?

Answer 27

• Where offences carry a penalty of imprisonment, it is more likely to be considered ‘truly criminal’ and less likely to be interpreted as an offence of strict liability
• Case=B v DPP
• However some offences carrying imprisonment have been made strict liability offences

Question 28

How are issues of social concern used in relation to methods used to establish whether an offence is a strict liability offence and a case example?

Answer 28

• The privy council in Gammon ruled that the only situation in which the presumption of mens rea is displaced is where the statute is concerned with an issue of social concern
• Allowing strict liability offences to be justified in a wide range of offences as issues of social concern can be seen to cover any activity which is a ‘potential danger to public health, safety or morals’
• Case= R v Blake- even transmitting an unlicensed broadcast has been decided to be a matter of social concern

Question 29

How is promoting enforcement of the law help to establish whether an offence is a strict liability offence?

Answer 29

• In Gammon the final point in considering whether strict liability should be imposed was whether it would be effective to promote the objects of the statute be encouraging greater vigilance to prevent the commission of the prohibited act
• If imposing it wont make the law more effective than there is no reason to impose it

Question 30

What is transferred malice and an example?

Answer 30

• It is the principle that the D can be guilty if they intended to commit a similar crime but against a different victim
• Case= Latimer

Question 31

What is general malice?

Answer 31

• The D may not have a specific victim in mind for example a terrorist planting a bomb intending to kill/injure anyone who happens to be there
• In this case the D’s mens rea is held to apply to the actual victim

Question 32

What is the coincidence of actus reus and mens rea and a case example?

Answer 32

• Both the actus reus and mens rea must be present at the same time for an offence to take place
• Case= Church

Question 33

What is a continuing act and an example?

Answer 33

• Where there is a continuing act for the actus reus and at some point while that act is still going on the D has the necessary mens rea, then the 2 do coincide and the D will be guilty
• Case=Fagan v Metropolitan Police Commissioner