Crim: w 3 - MENS REA

Question 1

What is mens rea?

Answer 1

Mens rea is the mental state that turns an unlawful act into a criminal offence

Question 2

Must mens rea and actus reus occur at the same time?

Answer 2

Yes, the accused must have the relevant mental state at the time of his/her criminal conduct.

Question 3

Can mens rea be transferred? (case)

i.e. if A means to shoot B, but accidentally shoots C?

Answer 3

General rule is that mens rea may transfer in straightforward cases. (Roberts v Hamilton)

Less clear in less straightforward cases (Byrne- transferred MR does NOT apply to fire-raising))

Question 4

What happened in Roberts v Hamilton?

Answer 4

Roberts v Hamilton

• Intended to hit partner with pole, hits son instead.
• Intent was transferred.

Question 5

Did transferred mens rea apply in Byrne v HM Adv?

Answer 5

No

Byrne v HM Adv
* A accidentally set fire to other items when intentionally setting fire to some.
Held: could only be liable for the things he intended to set fire to.

Question 6

What are the two most important mens rea for most crimes?

Answer 6

1. Intention - sufficient for most crimes.

2. Recklessness (lesser)

Question 7

Is motive relevant for intention?

Answer 7

No, in general motive is irrelevant to criminal liability.

Question 8

What did Palazzo v Copeland state about motive?

Answer 8

Palazzo v Copeland

• Man shot at gang of youths with gun
• claimed his motive was to prevent breach of the peace so he could not be convicted of breach of the peace.
• motive irrelevant to intention.

Question 9

Does Scots or English law recognise oblique intention?

Answer 9

Generally Scots law does not. However this is changing re: homicide.

England has recognised in a long line of cases.

Question 10

What is recklessness?

Answer 10

Recklessness is the most important mens rea after intention.

Involves unjustified risk-taking

Question 11

What is the subjective and the objective definitions of mens rea?

Which is used in England and which in Scotland?

Answer 11

Objective: not based on accused’s own knowledge/belief
(do not need to have known/believed you were taking a risk)
- SCOTLAND

Subjective: based on accused’s own knowledge/belief
(knew/believed the risk was unjustifiable)
- ENGLAND

Question 12

What is the definition of recklessness for statutory offences and which case defined it?

Answer 12

Allan v Patterson
* conduct that falls far below the standard to be expected of a competent and careful person.

Now used for other statutory offences e.g. vandalism.

Question 13

Which case uses the Allan v Patterson definition of recklessness in relation to a common law offence?

Answer 13

Gizzi v Tudhope
* Clay pigeon-shoot
* workmen behind trees shot
Held: Applied Allan

Now out of date

Question 14

What is the modern test for recklessness in common law offences? (case)

Answer 14

Utter disregard of the consequences of one’s actions.

Quinn v Cunningham
* cyclist hit pedestrians round blind corner
Held: Relevant Mens rea of recklnessness not proved

Question 15

Which case affirmed the recklessness test in Quinn v Cunningham?

Answer 15

Cameron v Maguire

* Required level of recklessness was met when man tested out new rifle near footpath.

Question 16

Intention and recklessness are the most important mens rea.

What are 5 other mens rea terms?

Answer 16

1. wicked recklessness (murder)
2. negligence
3. Knowledge/belief
4. Wilful blindness (Latta v Heron)
5. Dishonesty

Question 17

What happened in an alleyway in Latta v Heron?

Answer 17

Latta v Heron
* solicitor convicted when he bought stolen firearms in secret alleyway
* claimed he did not know they were stolen.
Held: ‘wilful blindness’

Question 18

What type of offences do not require mens rea?

Answer 18

Strict Liability offences do not require mens rea.

Question 19

What is distinctive about a strict liability offence?

Answer 19

Strict liability offences do not require mens rea: do not need to be committed intentionally, knowingly, recklessly etc.

Question 20

Many statutory offences are strict liability offences. Most are uncontroversial.

How can these be distinguished from true crimes?

Answer 20

• Aimed at corporations (rather than individuals)
• Enforced by specialist regulators (rather than the police and prosecution services) * Non-stigmatic 
• Punishable by fines (rather than imprisonment)

Question 21

What is an example of a strict liability offence that does count as a true crime?

Answer 21

Possession offences.

e.g. s 5 Firearms Act 1968

Question 22

When does an offence require strict liability? it is ‘a question of… ‘

Answer 22

Question of statutory interpretation.

Question 23

What factors might serve to rebut the presumption that criminal offences require mens rea?

Answer 23

• if the language of the statute suggests strict liability 
• if it provides any defences (e.g. due diligence, reasonable excuse, ‘no fault’ defences) 
• Whether any of the actus reus elements imply mens rea (e.g. possession: see R v Warner [1969] 2 AC 256) 
• Whether strict liability is necessary to achieve the policy of the statute

Question 24

What French case suggested strict liability contravene the ECHR?

Do UK courts agree?

Answer 24

Salabiaku v France

UK courts do NOT believe strict liability contravenes ECHR

Question 25

Which case describes the UK’s position on whether strict liability contravenes ECHR?

Answer 25

R v G
* Rape of child under 13 (requires no mens rea)
* victim was 12, but 15y/o believed she was 15 too - this was accepted by court.
Held: convicted because no mens rea was required - not a breach of human rights.