Mens rea

Question 1

What’s mens rea

Answer 1

Mens rea literally means ‘the guilty mind’

Question 2

Intention

Answer 2

The test for intention is always a subjective one – i.e. what was in the defendant’s head at the time they committed the act – not what we think they should have been aware of but what they were actually aware of at the time of committing the act.

Question 3

Direct Intention

Answer 3

The defendant sets out to achieve a particular result.

Question 4

Indirect or oblique intention

Answer 4

It is where the defendant may try to argue that they meant to do something else, rather than what actually happened.

The leading case today is R v Woollin 1998

Question 5

The current position

Answer 5

• There is no real definition of intention.
• For most cases direct intention applies (aim or purpose) and the jury need no more guidance.
• But intention does not mean the same as desire/wanting to achieve something.
• In the difficult cases where D says they wanted to do something else the jury should be directed using the Nedrick/Woollin guidelines.
• Foresight of consequences is part of the evidence that the jury can use when deciding if the D intended them.
• But sometimes – according to the Court of Appeal in Matthews and Alleyne it would be difficult for a jury NOT to find intention where D is aware that a consequence WILL almost inevitably happen.

Question 6

Evaluation of Intention

Answer 6

• There is no statutory definition of intention. The cases don’t actually define intention but give guidelines on how a jury might decide that the defendant intended something. So the same facts might equally produce a conviction or acquittal depending on the composition of the jury. This leads to inconsistency in the law.
• Intention is a subjective concept, based on the defendant’s state of mind at the time they commit the act. The jury must somehow get into the defendant’s mind and find out what they actually intended at the time. The defendant probably can’t say either by the time of the trial
• If foresight were equated with intention we could not distinguish between intention and subjective recklessness. There should be much clearer divisions between a state of mind that leads to a murder conviction and one that would mean manslaughter instead.
• Juries may still equate foresight with intention particularly where a case is very emotive, e.g. child killing or terrorist cases.

Question 7

Reform

Answer 7

• Law Commission “It is in the interests of clarity and consistent application of the criminal law to define intention.”
• They felt that a statutory definition should simply codify the common law and continue to leave a discretion to the jury.

Question 8

Recklessness

Answer 8

prosecution need to prove that the defendant took an unjustifiable risk, knowing that a prohibited result may happen.

Question 9

Caldwell (1981)

Answer 9

where the Court of appeal decided that D could be seen as reckless if they did something creating an obvious risk even if D was not actually aware of the risk.

Question 10

“obvious risk taking”

Answer 10

• Recklessness is “an ordinary English word” and the legal term should mean the same as ordinary language
• He believed that failing to think about an obvious risk was just as blameworthy as thinking about a risk and taking it.
• He also believed that the new test would be easier for juries to understand and apply

Question 11

The appropriate test for recklessness in criminal damage

Answer 11

“A person acts recklessly within the meaning of section 1 of the Criminal Damage Act 1971 with respect to –

(i) a circumstance when he is aware of a risk that it exists or will exist;

(ii) a result when he is aware of a risk that it will occur;

(iii) and it is, in the circumstances known to him, unreasonable to take the risk.”

Question 12

Evaluation of recklessness

Answer 12

• Subjective recklessness is fairer to D than the objective test. It can take into account things about D which might make them incapable of realising there was a risk – age, learning difficulties etc.
• It could be argued that the subjective test is harsher on Vs and their families who might feel that a D should be punished for risky behaviour which might have caused serious injury and even death and might have been a glaringly obvious risk to take to most people.
• It might be argued that there is a conflict between public policy – protecting the public and the encouragement of good behaviour – and legal principle – which imposes liability when the defendant is to blame.

Question 13

Negligence

Answer 13

• Duty of care

*Breach of that duty

*Damage caused as a result of the breach

Leading case : R v Adomako (1994)