Mens Rea

Question 1

What is Mens Rea?

Answer 1

Latin for guilty mind

Describes the mental element required for criminal liability for a particular offence

About legal liability not morality

Question 2

What are the 4 types of mens rea?

Answer 2

1) Intention/knowledge
2) Recklessness
3) Negligence
4) Absolute/ Strict Liability

Question 3

What is Subjective Mens Rea?

Answer 3

What did D think?

For example intention or recklessness

Question 4

What is Objective Mens Rea?

Answer 4

What we assume D thought?

For example Negligence and Absolute/Strict liability.

Question 5

How do we know what type of Mens Rea is required?

Answer 5

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

Question 6

What is the key question when considering Mens Rea when it comes to criminal liability?

Answer 6

What was the state of mind of D at the time of the AR?

Question 7

What is intention?

Answer 7

Most serious MR standard

Greatest culpability and blameworthiness

Broader concept than just premeditation and also includes spontaneous acts

Question 8

What are the select offences of intention?

Answer 8

Murder
Criminal damage
receiving stolen property
non- fatal offences against the person

Question 9

What is the intention requirement of murder?

Answer 9

concequeces of conduct e.g. intent for death or GBH

relevant circumstance e.g. V is a human being under the kings peace

Question 10

What is the intention requirement for criminal damage?

Answer 10

circumstances e.g. intent as to where property belongs to another

Question 11

What is the intention requirement concequences for receiving stolen property?

Answer 11

receiving property known to be stolen (if only believes it’s probably stolen (does not equal) intentionally handling stolen property

Question 12

What are the two types of intention?

Answer 12

Direct and oblique intention

Question 13

What is Direct intention?

Answer 13

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)

Question 14

What is Oblique Intention?

Answer 14

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

Question 15

What is the Oblique intention test?

Answer 15

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

Question 16

What is the case for the second prong of woollins oblique intention test?

Answer 16

Matthews and Alleyne (2003) where finding D’s foresight of VC of the result by itself is insufficient to establish Woollin’s intention

Question 17

What does it mean by the jury choose to find intention?

Answer 17

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)

Question 18

Does foresight equal intent?

Answer 18

No just evidence of intent (Matthews and Alleyne (2003)

Question 19

What is Recklessness?

Answer 19

Foreseeing a risk of the result

Taking an unjustifiable risk of a particular concequence occuring, with awareness of that risk

Question 20

What are the Select Offences in Recklessness?

Answer 20

Reckless Manslaughter
Criminal damage (whether the property belongs to another)
Non- fatal offences against the person (malicious wounding inflicting GBH

Question 21

What is the test for recklessness?

Answer 21

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

Question 22

What does it mean by D’s aware of the actual risk?

Answer 22

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)

Question 23

What does it mean that D must have been unreasonable to have run that risk?

Answer 23

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

Question 24

What is Caldwell Recklessness?

Answer 24

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)

Question 25

What were the problems with Caldwell recklessness?

Answer 25

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

Question 26

What is negligence?

Answer 26

Did D act unreasonably

Rare and very low threshold

Even if D did not foresee the relevant risk, this failure can create culpability

Question 27

What are the select offences for negligence?

Answer 27

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

Question 28

What is Absolute/ Strict Liability?

Answer 28

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)

Question 29

Why do we have Absolute/ Strict Liability?

Answer 29

1) To protect the public good (public policy justification)
2) Deter unwanted behaviours

Question 30

What are absolute Liability Offences?

Answer 30

No mens rea required

precluded from relying on defences

No need to establish if AR was voluntary

Question 31

What are the types of Absolute liabilty offences?

Answer 31

Many immigration offences
Being drunk on a highway contrary to s12 of licensing Act 1872

Question 32

What are strict liabilty offences?

Answer 32

D must be proven to have conducted the AR voluntarily

No need to establish MR for at least part of AR

Question 33

What type of offences are strict liabilty offences?

Answer 33

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

Question 34

What might parliament expressly state or imply in relation to Strict liability offences?

Answer 34

No mens rea is required for part of actus reus