Chapter 2 - MR (Case Law) Flashcards
DPP v Smith [1960]
*Establishing indirect intention - OUT OF DATE It was held that intention could be established where a reasonable person would have contemplated the result. This was an objective test and was criticised at the time as it did not account for D’s state of mind. S8 Criminal Justice Act 1967 reversed this decision!
Woollin [1998]
Establishing indirect intention D lost his temper and threw his baby 5 feet across the room, causing him a fractured skull from which he died. It was not D’s purpose to kill or cause serious bodily harm. The Court of Appeal held that the test for indirect intention was foresight (awareness) of a substantial risk of death of serious harm. If this could be established, intention could be inferred.
The House of Lords overruled the Court of Appeal and quashed D’s conviction for murder. The test for indirect intention was established to be:
- Was death or serious harm virtually certain to result from D’s acts? (The objective limb)
- Did D appreciate (was he aware) that death or serious harm was virtually certain to result from his acts? (The subjective limb)
If the jury answers both of these questions positively, then they are “entitled to find intention”.
G and Another [2003]
The elimination of objective recklessness Ds, aged 11 and 12, set fire to some newspapers which ended up spreading and causing over £1m in damages. There convictions of arson were quashed, as the House of Lords held that only subjective recklessness should be considered and therefore whether or not D was aware of the risk of causing the result. It was unfair to use the objective test on children and not take their state of mind into account.
Caldwell [1982]
Outdated objective recklessness D was drunk and set fire to a hotel. D pleaded not guilty as he said he had not been aware that his conduct could endanger life. The House of Lords redefined recklessness to include objective and subjective recklessness:
- Objective - D created an obvious risk of damage, which he did not consider. (But a reasonable person would have considered it).
- Subjective - D was aware that the result could occur, but nevertheless went on to take that risk.
Cunningham [1957]
The emergence of subjective recklessness D tore a gas meter off the wall of an unoccupied house and was inhaled by V, who life was endangered. D originally convicted of of maliciously administering a noxious substance as to endanger life. D’s conviction was later quashed as the Court of Appeal held recklessness would be established where D WAS AWARE THE RESULT could occur, but nevertheless went on to take that risk.
Brady [2006]
Subjective recklessness It was held that the test for subjective recklessness does not require D to foresee an “obvious” or “significant” risk. D simply has to foresee the risk, regardless of how unlikely.
Chief Constable of Avon and Somerset Police v Shimmen [1986]
The Caldwell lacuna or “loophole”. D alleged that he neither subjectively reckless or objectively reckless.
D was not objectively reckless, as he had in fact considered the risk. The definition of objectively reckless is that D must not have considered the risk.
D was not subjectively reckless, because he took precautions to minimise the risk “as much as possible”.
The Court of Appeal held that minimising a risk inadequately still established subjective recklessness, as D was aware of the risk.
Latimer [1886]
Doctrine of transferred malice D took off his belt and aimed at E. It struck E lightly, but bounced off at wounded V badly. D did not intend to hit V, but because the offence he intended to commit was actually committed, albeit to a different person, his MR towards E was transferred to V.
Pembliton [1874]
Doctrine of transferred malice where MR and AR are different D picked up a stone intending to throw it at someone, but missed and broke a window. Transferred malice could not established as D did not the MR for criminal damage as D had not been aware of the risk of breaking the window.
Sweet v Parsley [1969]
Presumption of MR when determining if an offence is strict liability If there are no words evidencing Parliament’s intention to make the offence once requiring MR, it is presumed that MR or negligence is required.
D had let rooms to a number of students who subsequently used the property to smoke cannabis, contrary to S5(b) Dangerous Drugs Act 1965. The House of Lords held that the presumption of MR is rebuttable and this will depend on whether there is evidence that Parliament intended the offence to be one of strict liability, when the statute was enacted.
Cundy v Le Cocq [1884]
Establishing if an offence is a strict liability offence - one section is silent on MR but others are not
D’s conviction was upheld as other sections of the Licencing Act contained the word “knowingly”, where this specific section did not. Therefore, appears this had been left out intentionally and therefore offence is one of strict liability.
Mitchell [1983]
Doctrine of transferred malice
D hit E, who fell back onto V, who then fell and died. D was convicted of unlawful and dangerous act manslaughter. D was the legal cause, despite that this act was aimed at E. MR was established as intention transferred from E to D.
Gammon v Attorney-General of Hong Kong [1985]
Determining whether an offence is one of strict liability or not
This case provides the tests to assess whether or not a case requires MR or is a strict liability offence.
- The severity of the punishment - the lower the punishment, the more likely it is to be strict.
- Whether the offence applies to specific sections of the public? An offence is more likely to be quasi-criminal if it relates to a specific sector of the population, rather than the population in general.
- Whether the offence is concerned with an issue of social concern, such as public safety? Statutes aimed at preventing social harm or danger, where the potential harm is great are more likely to be strict liability offences. (e.g not a couple of people but affect large groups - such as pollution or flying a plane too low).
- Whether the creation of strict liability will promote the object of the offence, by encouraging greater vigilance to prevent the commission of the prohibited act? Will making it a strict liability offence help people observe the law? Is it practical for a person to keep checking if they are breaking the law?
