mens rea Flashcards
direct intent - dolus directus
- focuses on the will or desire of the actor to bring about a certain result
- highest degree of intent
- goals that are not primarily desired but are understood as necessary means to the end goal count as direct intent
indirect intent - dolus indirectus
- actor knows their conduct will almost certainly bring about consequences that they do not desire or primarily aim at
- deals with he side- effects that the actor knows are almost certain to occur
test of failure= if the result does not happen does the actor consider their plans to have failed
conditional intent - dolus eventualis
- actor was aware of the possible side effects and decided to act nonetheless
- awareness risk
- acceptance of risk
- actor must endorse or come to terms with the result
conditional intent- risk awareness
- cognitive = awareness of risk
- volitional = taking the risk for granted
DE= defendant only needs to be aware of possible chance that the risk may materialise
- GSC 1988
NL= the degree of this risk must be considerable
- Dutch Supreme Court 2007- HIV case
conditional intent- acceptance
DE = leather belt case
recklessness
- conscious taking of an unreasonable risk
- does not require that the person takes the risk for granted
- person needs to be aware of the risk
- risk is assessed normatively
R v Konzani
caldwell recklessness test
- ## definition was extended to the failure to foresee an obvious risk
Negligence or culpa
conscious
- the actor could have foreseen a possibility of a consequence resulting from their conduct but relied on the idea that the result would not occur
unconscious
- actor does not consider consequence of action
was there a duty of care
negligence in England is always unconscious
subjective test for recklessness
Murder in England
Causing death of a human being with malice aforethought (motive and premeditation are not relevant)
S.1 (1) murder act 1965: life imprisonment
Voluntary manslaughter
Mens rea for murder but mitigating circumstances allowing partial defence –Coroners and justice act 2009
- Loss of self-control (due to fear of serious violence)
- Diminished responsibility (abnormal mental functioning)
involuntary manslaughter
- Mens rea for murder is lacking
Constructive manslaughter = unlawful act resulting in unintended death / mens rea of core offence
Gross negligence manslaughter = violation of specific duty of care
Gross negligent manslaughter
R v Adomako
- During operation an oxygen pipe was disconnected and the patient died
- Aneasthetist failed to notice the obvious signs
Honey v Rose
- Optometrist performs sigh test on 8 year old boy
- Fails to notice abnormalities in retinal images
- Boy dies 5 months later due to built up fluid in the brain
- There was a breach of duty but no GNM
- She was not actually aware of the problem but she was aware that there was a possibility something could be wrong if she didn’t perform the test
R v Rudling
- Duty of care which is reasonably foreseeable gives rise to a serious and obvious risk of death
- Foreseeability
- Reasonable person would have foreseen a serious and obvious risk
- Grossness
- Decided by the jury
Background of German murder offence
- Motives, means and aims are morally loaded
- Article was created during the nazi regime
- Before murder was defined as killing with consideration
- The distinction between manslaughter and murder stemmed from roman law which was too foreign for the nazis
Roland Freisler
- Criminal law should not be based on the wrongfulness of the act but rather perpetrator typologies
- Some people are innately evil
- Criminal law should embody what the people what/ popular sentiment
criticism of 211 GCC
- Definition born from nazi ideology which is in conflict with modern criminal law
- Application of qualifying circumstances is often arbitrary, problematic, vague and uncertain
- Insidiously = if you kill without stealth you are a coward
- Problemes illustrated by Marianne Bachmeier case
- Mother killed the person who murdered her daughter inside a courtroom by shooting him in the back- showing cowardice
