Criminal Law - Mens Rea

Question 1

Mens Rea

Answer 1

• State of mind which must be present at the time the actus reus is committed
• Intention or recklessness

Question 2

Intention

Answer 2

Direct intention: aim or purpose

Indirect (or oblique) intention: outcome not the defendant’s aim or purpose. Two stages:

1. Outcome must be virtually certain consequence (objective)
2. Defendant must realise outcome is virtual certainty (subjective)

Question 3

Indirect Intention

Answer 3

1. Outcome a virtually certain consequence
2. Defendant realised outcome was virtually certain

Only applies when intention is the only form of mens rea available (specific intent offences such as murder or s.18 GBH)

If offence can be committed with reckless mens rea you cannot rely on indirect intention (basic intent offences can be committed recklessly)

Question 4

Specific Intent Offences

Answer 4

Can only be committed with intention mens rea

Question 5

Basic Intent Offences

Answer 5

Can be committed with intention and reckless mens rea

Indirect intention available

Question 6

Transferred Malice

Answer 6

• Defendant has mens rea but directed at different victim / item
• Defendant usually guilty of two offences (completed offence against actual victim and attempted offence against intended victim)
• Only works when offence committed is of the same type as the one intended

Question 7

Recklessness

Answer 7

Defendant takes risk not justified in the circumstances

Two parts:

1. Defendant foresees risk (subjective)
2. Under the circumstances known to the defendant the risk is unreasonable to take (objective)

Indirect intention and recklessness are mutually exclusive (as indirect intention only applies to specific intent offences where intention is the only type of mens rea)

Question 8

Negligence

Answer 8

Lower culpabilty than recklessness

1. Did defendant owe a duty of care?
2. Did the defendant breach the standard of care?

Standard may be defined by statement or by the common law

An objective standard

Question 9

Identification Doctrine

Answer 9

• Used in corporate liability situations
• Because a corporation is a separate entity disctinct from its owners difficult to prosecute it for any crime that requires a mental state
• Identification doctrine involves the prosecution finding a ‘controlling mind’ whose actions and mental state can be said to be that of the corporation as a whole

Question 10

Statutory Offences

Answer 10

Specific offences that target corporations and do not require a mental element

CPS and Serious Fraud Office can also defer prosecutions on corporations to allow them to ‘fix’ problems