Elements of a Crime - Mens Rea

Question 1

Why do we have mens rea?

Answer 1

To ensure only blameworthy defendants are punished

Question 2

What is mens rea?

Answer 2

Legal term used to describe elements of offence that relates to D’s mental state

Question 3

Standards of Mens rea

Answer 3

• Intention
• Recklessness
• Negligence
• Knowledge

Question 4

Mens rea - 2 methods of culpability

Answer 4

• Objective: D’s conduct fell below the standards to the ordinary reasonable person
• Subjective: D held a state of mind at the time of the offence that was blameworthy

Question 5

Assault definition

Answer 5

D intentionally or recklessly causes V to apprehend imminent unlawful contact

Question 6

Murder definition

Answer 6

D kills V with the intention to kill or cause GBH

Question 7

Criminal damage definition

Answer 7

D intentionally or recklessly destroys or damages property belonging to another

Question 8

Capacity for under 10 years old

Answer 8

Irrefutable presmuption of doli incapax

Question 9

Doli incapax defintion

Answer 9

A presumption in the law that a child is incapable of forming criminal intent to commit an offence

Question 10

Intention definition

Answer 10

• Ordinary meaning of work, not ‘desire’ or ‘motive’
• Judge should avoid elaboration, leave jury to good sense - Moloney [1985]
• Intention does not require premeditation

Question 11

Intention v foresight

Answer 11

Intention is distinguished from foresight, but is evidence from which jury may find or infer intention: Hyam v DPP [1975]

Question 12

Oblique intention

Answer 12

D does not consciously aim to bring about a particular consequence but has knowledge that in doing something else he is liable to cause that consequence

Question 13

Defining oblique intention

Answer 13

A person should be taken to intend a result if he or she acts in order to bring it about

Question 14

Recklessness definition

Answer 14

The responsibility line is drawn according to an evaluation of the nature of the activity and the degree of the risk

Question 15

Recklessness has three parts…

Answer 15

1. D has awareness
2. Of any degree of risk
3. Taking that risk is unjustified or unreasonable

Question 16

Caldwell abolished by…

Answer 16

R v G and R [2004] abolished Caldwell recklessness for criminal damage offences

Question 17

Recklessness; criticisms

Answer 17

• Does G make it too easy for defendant to claim that they did not consider a risk to others to be so entitled to acquittal?
• Should an alternative to both Cunningham and Caldwell recklessness have been considered?

Question 18

Recklessness: criticisms (2)

Answer 18

• D would have been reckless if they were aware if a risk or fail to consider a risk which should have been obvious to a reasonable person for their age and mental abilities
• D would be reckless if they were aware of a risk or fail to consider an obvious risk, without good explanation

Question 19

Negligence: definition

Answer 19

• D has behaved in a way in which a reasonable person would not have behaved
• A form of culpable carelessness

Question 20

Negligence Criteria

Answer 20

1. Inadvertent
2. Objective: D is negligent as to a circumstance relevant to his conduct if he ought to have been aware of its existence because a reasonable person would have thought the risk might exist

Question 21

Is negligence liability fair?

Answer 21

• No: doesn’t account for autonomy, individual difference and capacity, doesn’t reflect a real social standard, involves non-moral form of wrongdoing, it is unclear and uncertain
• Yes: It applies to those who could and should do better, who choose to undertake an obligation and who have good reasons for doing otherwise

Question 22

Negligence is where D…

Answer 22

‘failed to comply with a standard of conduct with which any ordinary man could and would have complied’ (Hart 1968)

Question 23

Strict liability

Answer 23

Some offences require no mens rea - just completion of the actus reus

Question 24

Presumption in favour of mens rea

Answer 24

Do strict liability offences contravene Art 6 ECHR?

Question 25

Relationship of AR to MR

Answer 25

The general rule is captured by the correspondence principle - fault should correspond to conduct or consequence

Question 26

Exception of Relationship of AR to MR

Answer 26

A. Constructive crimes
B. Dutch courage
C. Transferred malice
D. ‘Continuing acts’

Question 27

Transferred malice/mens rea

Answer 27

• Fault may be transferred within the same class of offence
• When the fault is transferred, any defence d may have is also transferred with it

Question 28

Continuing acts cases

Answer 28

Fagan v MPC [1969]
Miller [1983]
Thabo Meli [1954]
Church [1966]
Le Brun [1992]