Crim: w 3 - MENS REA Flashcards
What is mens rea?
Mens rea is the mental state that turns an unlawful act into a criminal offence
Must mens rea and actus reus occur at the same time?
Yes, the accused must have the relevant mental state at the time of his/her criminal conduct.
Can mens rea be transferred? (case)
i.e. if A means to shoot B, but accidentally shoots C?
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))
What happened in Roberts v Hamilton?
Roberts v Hamilton
- Intended to hit partner with pole, hits son instead.
- Intent was transferred.
Did transferred mens rea apply in Byrne v HM Adv?
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.
What are the two most important mens rea for most crimes?
- Intention - sufficient for most crimes.
2. Recklessness (lesser)
Is motive relevant for intention?
No, in general motive is irrelevant to criminal liability.
What did Palazzo v Copeland state about motive?
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.
Does Scots or English law recognise oblique intention?
Generally Scots law does not. However this is changing re: homicide.
England has recognised in a long line of cases.
What is recklessness?
Recklessness is the most important mens rea after intention.
Involves unjustified risk-taking
What is the subjective and the objective definitions of mens rea?
Which is used in England and which in Scotland?
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
What is the definition of recklessness for statutory offences and which case defined it?
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.
Which case uses the Allan v Patterson definition of recklessness in relation to a common law offence?
Gizzi v Tudhope
* Clay pigeon-shoot
* workmen behind trees shot
Held: Applied Allan
Now out of date
What is the modern test for recklessness in common law offences? (case)
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
Which case affirmed the recklessness test in Quinn v Cunningham?
Cameron v Maguire
* Required level of recklessness was met when man tested out new rifle near footpath.
Intention and recklessness are the most important mens rea.
What are 5 other mens rea terms?
- wicked recklessness (murder)
- negligence
- Knowledge/belief
- Wilful blindness (Latta v Heron)
- Dishonesty
What happened in an alleyway in Latta v Heron?
Latta v Heron
* solicitor convicted when he bought stolen firearms in secret alleyway
* claimed he did not know they were stolen.
Held: ‘wilful blindness’
What type of offences do not require mens rea?
Strict Liability offences do not require mens rea.
What is distinctive about a strict liability offence?
Strict liability offences do not require mens rea: do not need to be committed intentionally, knowingly, recklessly etc.
Many statutory offences are strict liability offences. Most are uncontroversial.
How can these be distinguished from true crimes?
- 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)
What is an example of a strict liability offence that does count as a true crime?
Possession offences.
e.g. s 5 Firearms Act 1968
When does an offence require strict liability? it is ‘a question of… ‘
Question of statutory interpretation.
What factors might serve to rebut the presumption that criminal offences require mens rea?
- 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
What French case suggested strict liability contravene the ECHR?
Do UK courts agree?
Salabiaku v France
UK courts do NOT believe strict liability contravenes ECHR
Which case describes the UK’s position on whether strict liability contravenes ECHR?
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.
