Mens Rea

Question 1

what is mens rea?

Answer 1

the fault element in crime

Question 2

what approaches to mens rea exist?

Answer 2

cognitivist - assess the factual state of mind in order to determine intention, recklessness etc.

moral/attitudinal - assess the morality associated with the conduct

Question 3

what standard is applied to the assessment of mens rea?

Answer 3

objective standard

Question 4

what words reflect the mens rea element for criminal damage (under the Criminal Damage Act 1971 s.1)?

Answer 4

‘INTENDING to destroy/ damage any such property or being RECKLESS as to whether any such property would be destroyed/damaged’

Question 5

what objective standards are articulated under the Road Traffic Act 1998 s.1 (causing death by dangerous driving)?

Answer 5

acceptable standard
expected of a competent and careful driver
which it would be obvious to a competent and careful driver

Question 6

what is the ordinary meaning of intention?

Answer 6

result is intended if it is the aim or purpose of an act or an omission

Question 7

what is Duff’s ‘test of failure’?

Answer 7

a result is seen to be intended if the defendant would regard the outcome of his conduct as a failure if the results did not occur

Question 8

what is an ‘oblique intention’?

Answer 8

where an event is the natural consequence of the action taken

Question 9

what is objective intention?

Answer 9

intending something that ‘the ordinary man or woman would in all the circumstances have contemplated as the natural and probable result’

Question 10

what case highlighted the conflict between an application of a subjective vs an objective test?

what was the issue?

Answer 10

DPP v Smith 1961

issue: whether D could be convicted of murder without subjective intent to kill
held: D could be found liable for murder under an objective test

Question 11

what case highlighted that a foresight of a high probability was sufficient for intent?

Answer 11

Hyram 1974

set fire to someone’s house without the knowledge that people were inside, which led to their murder

Question 12

what case highlighted that the ‘probability of the consequence must be little short of overwhelming before it will establish the necessary intent’?

Answer 12

Moloney 1985

shooting of step father was accidental and not perceived as a likely outcome
D did not ‘foresee the killing as a natural consequence of his act’
reduced the conviction to manslaughter

Question 13

what case presented the principle that the higher the probability of death, the more likely that the act had intention?

what overlap does this create?

Answer 13

Hancock and Shankland 1986

overlap with the notion of recklessness

Question 14

what is the Nedrick (1986) test?

Answer 14

‘the jury should be directed that they are not entitled to infer the necessary intention unless they feel sure that [foresight of] death or serious bodily harm was a vital certainty… as a result of Ds actions and that D appreciated that such was the case’

Question 15

how did the Nedrick test change in Woollin 1999?

Answer 15

the entitlement to ‘infer’ was changed to ‘find’

Question 16

what case established that it would be a misdirection for a judge to direct the jury that they ‘must’ find intention under the Nedrick/Woollin test?

Answer 16

R v Matthews and Alleyne 2003

only needed to consider the virtual certainty which might give rise the presence of intention

Question 17

why might oblique intention be seen to be under-inclusive?

Answer 17

suggests that if an individual is to report their crime beforehand and reduce harm that necessarily there is a lack of intention

ex// bombing informing police of planted bomb with good time but one person isn’t cleared from the area and is killed

Question 18

why does Steyn argue that the possible under-inclusiveness of the Nedrick/Woollin/Oblique test does not mean that it is rendered insufficient?

Answer 18

argues that the other injustices associated to acts of terrorism wouldn’t be undermined in the courts

even if murder cannot be argued, through a lack of intention, the next plea is manslaughter which can also ensure a life sentence

Question 19

what is ‘subjective’ recklessness referenced in Cunningham 1957?

Answer 19

D would have had to have foreseen ‘the particular type of harm that might be done, and yet has gone on to take the risk of it’

Question 20

what is ‘objective’ recklessness?

Answer 20

being reckless as to whether some harm/damage could arise

considered by the objective or reasonable standards

Question 21

what case established the principle that someone can also be found reckless, under the objective test, if they gave no thought to an obvious or serious risk?

Answer 21

Caldwell v Lawrence 1981

Question 22

how did the ruling in Caldwell v Lawrence 1981 generate a problematic result in Elliot v C?

Answer 22

14 year old with learning difficulties found to be reckless for setting fire to the garden shed when they did not foresee the risk because they were incapable of seeing the risk

Question 23

what case opposed the ruling in Elliot v C/ Caldwell and overruled it?

how?

Answer 23

R v G 2003

now a subjective consideration of the awareness of the risk

Question 24

what were Bingham’s reasons for overruling the Caldwell principle in R v G? x4

Answer 24

not blameworthy if D genuinely doesn’t perceive the risk

not moral or just to judge D on what someone else would have apprehended if they themselves had not apprehended it

Caldwell was widely criticised by academics, judges and lawyers

interpretation of recklessness in Caldwell as a ‘misrepresentation’

Question 25

what objective standards still exist within the law, despite the imposition of a subjective approach to intention and recklessness?

Answer 25

Road Traffic Act 1988 - ‘competent and careful driver’

Sexual Offences Act 2003 s.1 - ‘A does not reasonably believe that B consents’

Question 26

what are negligence standards in criminal law based upon?

Answer 26

tort law

Question 27

what is required to establish gross negligence manslaughter under the Bateman case?

’’ Adomako case?

Answer 27

negligence went beyond mere compensation between subjects
showed such disregard for the life and safety of others

was the conduct bad enough to amount to a criminal act or omission?

Question 28

what is the importance of coincidence in the generation of liability?

Answer 28

AR and MR must coincide in time

MR must be present at time of criminal act/omission

Question 29

what is meant by ‘correspondence’ in relation to MR?

where is it found in statute?

Answer 29

person must have MR that directly corresponds to the AR

Criminal Damage Act 1971 s.1
‘destroys or damages property belonging to another intending…’

Question 30

what is the concept of transferred malice?

Answer 30

intention is transferred despite the AR not sufficiently being fulfilled
liability and MR for act is maintained

Question 31

what are examples of transferred malice?

Answer 31

Saunders v Archer - poisoned apple intended for wife given to daughter

Latimer - belt swung and hit woman who was not intended to be hit

Question 32

what are examples of cases where malice could not be transferred?

Answer 32

Pembliton - malice towards intent to harm V by throwing a stone could not be transferred to the property damage

A-G ref 3/94 - intention towards V1 to stab could not be transferred to baby V2’s death (baby is not ‘a reasonable person or being’)