Chapter Two: Mens Rea Flashcards
What is the mens rea of an offence?
The mental state required for a particular offence.
For offences such as murder the MR can only be intention, but for most cases the defendant being RECKLESS is enough.
What is direct intention?
The person wanting to achieve something or having in mind a specific purpose or outcome.
The situation where the defendant seeks to achieve the consequence of their act.
What is indirect/ oblique intention?
Where the defendant argues that they did not intend to kill the victim and there is an alternative explanation for their actions.
What is the legal test for indirect intention?
R v Woolin, (baby against the wall)
The HOL stated that the jury should decide the defendant’s guilt as follows:
A result is intended when it is the accused’s purpose to cause it.
If this does NOT apply
(1) was the consequence virtually certain to occur from the defendant’s act (or omission), (objective test)
If affirmative,
(2) Did the defendant appreciate the consequences were virtually certain to occur? (subjective test)
If the answer to the two are ‘yes’, the jury may find that the defendant DID intend.
Define recklessness
Recklessness involves the defendant taking an unjustified risk.
What are the two distinct elements when dealing with recklessness?
(a) The risk must be an unjustified or unreasonable one to take
(b) The defendant must be aware of the risk and go on to take it
What determines whether a risk is justified or not?
Decided upon a number of factors including the reasons why the defendant acted as they did, what the risk was and the likely consequences.
The court will balance the social utility or benefit involved in taking the risk against the likelihood or severity of the harm resulting.
The justification of the risk will be determined by the standard of the reasonable person.
What is the test for recklessness?
Whether the defendant foresees that risk (of whatever is required by the specific offence) and goes on to take it (subjective).
What standard is negligence judged on?
An objective standard that can be satisfied even if the defendant is punished for failing measure up to the standards of the reasonable person. This could be seen as harsh as the accused may not understand or even be capable of recognising the risk.
What is the objective negligence test?
The defendant’s failed to foresee a risk that a reasonable person would have foreseen
The defendant foresaw the risk but did not take steps to avoid it.
The defendant foresaw the risk but took inadequate steps to avoid it.
What is the difference between recklessness and negligence?
Recklessness- conscious
Negligence- inadvertent taking
What are some statutory negligence offences?
s3 RTA 1988- careless driving driving ‘… without due care and attention, or without reasonable consideration for other persons using the road or place.’
To be negligent, must ‘fall below what would be expected of a competent and careful driver.’
Motive for doing so is irrelevant, eg due to inexperience or good reason.
What are strict liability offences?
Not necessary to prove mens rea or negligence.
Regulatory in nature, the aim is to discourage incompetence and unsafe actions and to encourage greater vigilance and safety.
They do not generally apply to the public at large, but to those people who are engaged in particular forms of conduct. Designed to regulate certain types of behaviour.
How can you identify a strict liability offence?
Statute
Case Law
The court will look at the statute as a whole, was the MR left out of a definition purposely?
They will look at the social contact
What is the doctrine of transferred malice?
When the defendant attacks the wrong person or damages the wrong property.
If the defendant has the ‘malice’- the intention or recklessness- to commit a crime against one person, this malice is transferred to the unintended victim and combines with the AR to complete the offence.
