Mens Rea Flashcards
What is Mens Rea?
Latin for guilty mind
Describes the mental element required for criminal liability for a particular offence
About legal liability not morality
What are the 4 types of mens rea?
1) Intention/knowledge
2) Recklessness
3) Negligence
4) Absolute/ Strict Liability
What is Subjective Mens Rea?
What did D think?
For example intention or recklessness
What is Objective Mens Rea?
What we assume D thought?
For example Negligence and Absolute/Strict liability.
How do we know what type of Mens Rea is required?
Many statutory offences statitorily define the requirement for Mens Rea
Some offences are defined in common law, with mens rea specified
Courts may be unclear
Courts can inconsistent when discussing the type of mens rea required
What is the key question when considering Mens Rea when it comes to criminal liability?
What was the state of mind of D at the time of the AR?
What is intention?
Most serious MR standard
Greatest culpability and blameworthiness
Broader concept than just premeditation and also includes spontaneous acts
What are the select offences of intention?
Murder
Criminal damage
receiving stolen property
non- fatal offences against the person
What is the intention requirement of murder?
concequeces of conduct e.g. intent for death or GBH
relevant circumstance e.g. V is a human being under the kings peace
What is the intention requirement for criminal damage?
circumstances e.g. intent as to where property belongs to another
What is the intention requirement concequences for receiving stolen property?
receiving property known to be stolen (if only believes it’s probably stolen (does not equal) intentionally handling stolen property
What are the two types of intention?
Direct and oblique intention
What is Direct intention?
A person intends to cause the result if they can act with the purpose of doing so
straightforward and uncontroversial
D’s aim and objective must be synonymous with D’s desire. D acts in order to acheive the result. D does not require premeditation or planning. Direct intention must exist at the time of the Actus Reus
Moloney (1985)
What is Oblique Intention?
Where it is VC that D has foreseen it as VC and the jury find intention
cases where D doesn’t intend the result or it is not their purpose or aim
D doesn’t desire the result but realises that it is almost (but not quite inevitable)
Allows D to be laible even when the outcome is not guaranteed e.g. firing a loaded gun
What is the Oblique intention test?
R v Woollin
3 prongs:
1) The circumstance/ result is VC (objective)
2) D foresees it as VC
3) jury find intention
Must satisfy all prongs to establish oblique intention
What is the case for the second prong of woollins oblique intention test?
Matthews and Alleyne (2003) where finding D’s foresight of VC of the result by itself is insufficient to establish Woollin’s intention
What does it mean by the jury choose to find intention?
Jury can choose to find infer intention from a) and b) or not
It may or may not conclude there was oblique intention
Gives jury flexability
Jury has “moral elbow room” so jury has discretion to reach or not reach the intention conclusion (Horder, 1995)
courts have failed to give crystal clear directions about when and how juries should arrive at this decision
Matthews and Alleyne (2003)
Does foresight equal intent?
No just evidence of intent (Matthews and Alleyne (2003)
What is Recklessness?
Foreseeing a risk of the result
Taking an unjustifiable risk of a particular concequence occuring, with awareness of that risk
What are the Select Offences in Recklessness?
Reckless Manslaughter
Criminal damage (whether the property belongs to another)
Non- fatal offences against the person (malicious wounding inflicting GBH
What is the test for recklessness?
Cunningham [1957] recklessness test:
3 prongs
1) D’s awareness of the actual risk
2) D’s awareness of any degree of risk
3) Risk D believes is present is unjustified or unreasonable one under the circumstances
What does it mean by D’s aware of the actual risk?
The size of the risk is irrelevant
How carefully D considers the risk is irrelevant
What D thinks about the risk is irrelevant
Even where D closes their mind to the risk e.g anger they can be found reckless to the risk (parker 1977) and (stephenson (1979)
What does it mean that D must have been unreasonable to have run that risk?
Risk was one a reasonable and prudent person might have taken
Objective social value of the activity relative to the probability and gravity of the harm which might be caused
What is Caldwell Recklessness?
D is reckless if they run a risk that a reasonable person would have foreseen (objective)
Liable even if D did not personally foresee the risk (subjective)
What were the problems with Caldwell recklessness?
Objective test alone and doesnt consider the D’s mind (subjective)
Did not require proof D had culpable state of mind and thus D could be convicted for no state of mind as to the risk of harm
What is negligence?
Did D act unreasonably
Rare and very low threshold
Even if D did not foresee the relevant risk, this failure can create culpability
What are the select offences for negligence?
Careless driving: D falls below the standard expected of a competent and careful driver
Dangerous driving: D falls below the standard expected of a competent and careful driver
Gross Negligence Manslaughter
What is Absolute/ Strict Liability?
Criminalise D for acting in particular circumstances (and sometimes causing results) without proof of choice or control
Does not require showing intention, recklessness or negligence
As long as D’s actions satisfy Actus Reus and were voluntary that can equal criminal liability
Created by parliament (controversial as courts prefer to have a MR)
Why do we have Absolute/ Strict Liability?
1) To protect the public good (public policy justification)
2) Deter unwanted behaviours
What are absolute Liability Offences?
No mens rea required
precluded from relying on defences
No need to establish if AR was voluntary
What are the types of Absolute liabilty offences?
Many immigration offences
Being drunk on a highway contrary to s12 of licensing Act 1872
What are strict liabilty offences?
D must be proven to have conducted the AR voluntarily
No need to establish MR for at least part of AR
What type of offences are strict liabilty offences?
Summary offences: triable in the magistrates court with low penalties
Statutory offences
Regulatory offences: sale of food, alcohol, gaming tickets, preventing pollution, safe use of vehicles
What might parliament expressly state or imply in relation to Strict liability offences?
No mens rea is required for part of actus reus
