Mens Rea Flashcards
Mens rea
state of mind
Criminal Justice Act 1967 which says (under s. 8) that a court/jury, in determining whether a person has committed an offence:
shall not be bound in law to infer that he intended or foresaw a result of his actions by reason only of its being a natural and probable consequence of those actions
shall decide whether he did intend or foresee that result by reference to all the evidence, drawing such inferences from the evidence as appear proper in the circumstances.
Foresight
Foresight of the probability of a consequence does not amount to an intention to bring that consequence about, but may be evidence of it.
Argument
at the time of the criminal act there was a probability of a consequence;
the greater the probability of a consequence, the more likely it is that the defendant foresaw that consequence;
if the defendant foresaw that consequence, the more likely it is that the defendant intended it to happen.
Specific intent
Particular intention to bring about a specific consequence at the time of the criminal act. E.g. murder and burglary (without the intent the offence does not exist.
Basic intent
Bring about given circumstances e.g. maliciously wounding or inflicting GBH or taking a conveyance. Recklessness will often be enough to satisfy the mental element.
OFFENCES OF ‘SPECIFIC’ AND ‘BASIC’ INTENT
Whether an offence is one of ‘specific’ or ‘basic’ intent connects to the issues around voluntary or involuntary intoxication.
Intoxication can be divided into two categories
Voluntary intoxication (you got yourself in that condition)
involuntary intoxication (you are not responsible for getting in that condition)
Specific intent offence and intoxication
Where an offence is a specific intent offence, such as murder, defendants who were voluntarily intoxicated at the time the offence was committed may be able to show they were so intoxicated that they were incapable of forming the mens rea required for the offence.
DPP v Majewski [1977]
An individual who is voluntarily intoxicated would not be able to say this if accused of an offence of basic intent as the courts have accepted that a defendant is still capable of forming basic intent even when completely inebriated.
Basic intent offence and intoxication
Where the offence is a basic intent offence, such as s. 47 assault, defendants who were involuntarily intoxicated (perhaps because their drink had been spiked) at the time of the offence may be able to say that they lacked the mens rea for that basic intent offence.
Voluntary and Involuntary intoxication
Voluntary intoxication can be raised in answer to a charge of an offence of specific intent but not basic intent; involuntary intoxication can be raised in answer to a charge of both specific and basic intent.
R v Allen [1988]
If defendants simply misjudge the amount or strength of intoxicants which they take, this will not be regarded as involuntary intoxication.
Defendant knowingly drinks beer but is unaware that the beer has been laced with vodka, this will still be ‘voluntary’ intoxication
R v Kingston [1995]
If defendants can be shown to have actually formed the required mens rea necessary for the offence, intoxication (voluntary or involuntary) will not be available as a drunken intent is still an ‘intent’
Source of the intoxication can be drink or drugs.
The courts will consider the known effects of the drug in deciding whether or not defendants had formed the required degree of mens rea; the characteristics of the drugs will be relevant in determining whether defendants behaved recklessly in taking them.
‘mistaken belief’
Defendant forms a ‘mistaken belief’ based on the fact that he/she is intoxicated, that belief may sometimes be raised as a defence. In cases of criminal damage where a defendant has mistakenly believed that the property being damaged is his/her own property, and that mistaken belief has arisen from the defendant’s intoxicated state.
- The courts have refused to accept similar defences of mistaken, drunken belief (e.g. in R v O’Grady [1987] QB 995, where a defendant charged with murder (also applies to manslaughter see R v Hatton [2005] EWCA Crim 2951) could not rely on a mistake induced by his own voluntary intoxication and claim ‘self-defence’), or where the defendant mistakenly believed that the victim of a rape was consenting to sexual intercourse
False courage
If defendants become intoxicated in order to gain false courage to go and commit a crime, they will not be able to claim a defence of intoxication even if the crime is one of specific intent.
R v G and R [2003
The approach taken to the interpretation of the word ‘reckless’ is that it will be ‘subjective’.
· In G, the House of Lords held that a person acts recklessly with respect to:
· a circumstance when he/she is aware of a risk that it exists or will exist;
· a result when he/she is aware of the risk that it will occur;
and it is, in the circumstances known to him/her, unreasonable to take that risk.
In G the defendants were two children (aged 11 and 12) who set fire to some newspapers in the rear yard of a shop premises whilst camping out. The children put the burning papers under a wheelie bin and left them, expecting the small fire to burn itself out on the concrete floor of the yard. In fact, the fire spread causing around £1,000,000 of damage. The children were convicted of criminal damage under the former law (‘objective’ recklessness) on the basis that the fire would have been obvious to any reasonable bystander.
· House of Lords quashed convictions, reinstating the general subjective element.
· A reasonable bystander might well have been aware of the risk of such activity—the children were not.
R v Cunningham [1957]
The requirements of subjective recklessness are satisfied in situations where the defendant foresees the consequences of his/her actions as being probable or even possible.
Recklessness
To establish recklessness, therefore, requires consideration of the degree of risk that is actually foreseen by the defendant of which he/she is aware and whether it was reasonable.
Reasonableness
Each situation will be decided on its own merits, but whether the risk is reasonable or not will be decided by the court - not the defendant. Introduce an objective element into the recklessness equation - recklessness itself is still subjective.
DIFFERENT CRIME = DIFFERENT RISK
Example 1: offence under s. 20 of the Offences Against the Person Act 1861 - the defendant must unlawfully and recklessly wound or inflict grievous bodily harm on the victim. Here ‘recklessness’ means that the defendant was aware of the risk that some harm would befall the victim.
Example 2: Criminal damage under s. 1(1) of the Criminal Damage Act 1971 - the defendant would need to be aware of to be reckless is that property belonging to another would be damaged or destroyed
‘Malice’
- relevant to ss. 18, 20, 23 and 24 of the Offences Against the Person Act 1861
- requires either the actual intention to cause the relevant harm or at least foresight of the risk of causing some harm (though not the extent of the harm) to a person.
Malice Example
D throws a coin at V thinking that this will result in a small cut to V’s forehead (so D has foresight that some harm, albeit minor, will befall V as a result of D’s actions). The coin actually strikes V in the eye, causing V serious injury and the loss of sight in the eye.
It does not matter that the harm that D foresaw was minor compared to the resultant harm caused to V. D has committed a s. 20 grievous bodily harm offence because D has behaved ‘maliciously’—D saw the risk of some harm befalling V but went on to take the risk anyway.
