Mens Rea Flashcards
what is mens rea?
the fault element in crime
what approaches to mens rea exist?
cognitivist - assess the factual state of mind in order to determine intention, recklessness etc.
moral/attitudinal - assess the morality associated with the conduct
what standard is applied to the assessment of mens rea?
objective standard
what words reflect the mens rea element for criminal damage (under the Criminal Damage Act 1971 s.1)?
‘INTENDING to destroy/ damage any such property or being RECKLESS as to whether any such property would be destroyed/damaged’
what objective standards are articulated under the Road Traffic Act 1998 s.1 (causing death by dangerous driving)?
acceptable standard
expected of a competent and careful driver
which it would be obvious to a competent and careful driver
what is the ordinary meaning of intention?
result is intended if it is the aim or purpose of an act or an omission
what is Duff’s ‘test of failure’?
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
what is an ‘oblique intention’?
where an event is the natural consequence of the action taken
what is objective intention?
intending something that ‘the ordinary man or woman would in all the circumstances have contemplated as the natural and probable result’
what case highlighted the conflict between an application of a subjective vs an objective test?
what was the issue?
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
what case highlighted that a foresight of a high probability was sufficient for intent?
Hyram 1974
set fire to someone’s house without the knowledge that people were inside, which led to their murder
what case highlighted that the ‘probability of the consequence must be little short of overwhelming before it will establish the necessary intent’?
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
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?
Hancock and Shankland 1986
overlap with the notion of recklessness
what is the Nedrick (1986) test?
‘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’
how did the Nedrick test change in Woollin 1999?
the entitlement to ‘infer’ was changed to ‘find’
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?
R v Matthews and Alleyne 2003
only needed to consider the virtual certainty which might give rise the presence of intention
why might oblique intention be seen to be under-inclusive?
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
why does Steyn argue that the possible under-inclusiveness of the Nedrick/Woollin/Oblique test does not mean that it is rendered insufficient?
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
what is ‘subjective’ recklessness referenced in Cunningham 1957?
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’
what is ‘objective’ recklessness?
being reckless as to whether some harm/damage could arise
considered by the objective or reasonable standards
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?
Caldwell v Lawrence 1981
how did the ruling in Caldwell v Lawrence 1981 generate a problematic result in Elliot v C?
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
what case opposed the ruling in Elliot v C/ Caldwell and overruled it?
how?
R v G 2003
now a subjective consideration of the awareness of the risk
what were Bingham’s reasons for overruling the Caldwell principle in R v G? x4
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’
what objective standards still exist within the law, despite the imposition of a subjective approach to intention and recklessness?
Road Traffic Act 1988 - ‘competent and careful driver’
Sexual Offences Act 2003 s.1 - ‘A does not reasonably believe that B consents’
what are negligence standards in criminal law based upon?
tort law
what is required to establish gross negligence manslaughter under the Bateman case?
’’ Adomako case?
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?
what is the importance of coincidence in the generation of liability?
AR and MR must coincide in time
MR must be present at time of criminal act/omission
what is meant by ‘correspondence’ in relation to MR?
where is it found in statute?
person must have MR that directly corresponds to the AR
Criminal Damage Act 1971 s.1
‘destroys or damages property belonging to another intending…’
what is the concept of transferred malice?
intention is transferred despite the AR not sufficiently being fulfilled
liability and MR for act is maintained
what are examples of transferred malice?
Saunders v Archer - poisoned apple intended for wife given to daughter
Latimer - belt swung and hit woman who was not intended to be hit
what are examples of cases where malice could not be transferred?
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’)
