Mens Rea

Question 1

Mens rea

Answer 1

state of mind

Question 2

Criminal Justice Act 1967 which says (under s. 8) that a court/jury, in determining whether a person has committed an offence:

Answer 2

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.

Question 3

Foresight

Answer 3

Foresight of the probability of a consequence does not amount to an intention to bring that consequence about, but may be evidence of it.

Question 4

Argument - Mens Rea

Answer 4

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.

Question 5

Specific intent

Answer 5

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.

Question 6

Basic intent

Answer 6

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.

Question 7

OFFENCES OF ‘SPECIFIC’ AND ‘BASIC’ INTENT

Answer 7

Whether an offence is one of ‘specific’ or ‘basic’ intent connects to the issues around voluntary or involuntary intoxication.

Question 8

Intoxication can be divided into two categories

Answer 8

Voluntary intoxication (you got yourself in that condition)

involuntary intoxication (you are not responsible for getting in that condition)

Question 9

Specific intent offence and intoxication

Answer 9

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.

Question 10

DPP v Majewski [1977]

Answer 10

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.

Question 11

Basic intent offence and intoxication

Answer 11

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.

Question 12

Voluntary and Involuntary intoxication

Answer 12

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.

Question 13

R v Allen [1988]

Answer 13

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

Question 14

R v Kingston [1995]

Answer 14

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’

Question 15

Source of the intoxication can be drink or drugs.

Answer 15

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.

Question 16

‘mistaken belief’

Answer 16

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

Question 17

False courage

Answer 17

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.

Question 18

R v G and R [2003]

Answer 18

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.

Question 19

R v Cunningham [1957]

Answer 19

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.

Question 20

Recklessness

Answer 20

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.

Question 21

Reasonableness

Answer 21

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.

Question 22

DIFFERENT CRIME = DIFFERENT RISK

Answer 22

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

Question 23

‘Malice’

Answer 23

• 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.

Question 24

Malice Example

Answer 24

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.

Question 25

Wilfully

Answer 25

E.g. child cruelty
Intentionally or recklessly (subjective)

Question 26

Dishonestly

Answer 26

S2 of the Theft Act 1968 definition.
- Common law decisions of the courts (as per the decision in Barlow Clowes and Royal Brunei Airlines)

• Offences that require proof of dishonesty such as theft or fraud.
• Nature of the state of mind required.

Question 27

Knowing

Answer 27

E.g. S22 of the Theft Act 1968 - handling stolen goods

One knows something if one is absolutely sure that it is so.

A person who feels ‘virtually certain’ about something can be equally be regarding as ‘knowing’ it. (R v Dunne (1998) 162 JP 399).

Question 28

Belief

Answer 28

The degree of certainty required to be experienced by an accused to create a ‘belief’ would appear to be the same for ‘knowing’

○ the difference is that knowing something implies correctness of belief whereas a ‘belief’ could turn out to be mistaken.

E.g. handling stolen goods: a need to distinguish belief from recklessness or suspicion and that it is not sufficient that an accused believed it to be more probable than not that the goods were stolen.

Question 29

Negligence

Answer 29

Compliance with the standards of reasonableness of ordinary people.

Consequences of conduct

Notion of ‘fault’ or ‘blame’
○ Acted in a way that runs contrary to the expectations of the reasonable person.

E.g. manslaughter (manslaughter by gross negligence)

Other offences attract that test in relation to the mental element e.g. standards of driving.

Question 30

Strict Liability

Answer 30

There is little prove beyond the act itself.

There is no need to prove mens rea in relation to one particular aspect of the behaviour.

DPP v H [1997] 1 WLR 1406 it was stated that the offence of driving with excess alcohol, contrary to the Road Traffic Act 1988, s. 5 did not require proof of any mens rea.

Situations where strict liability is imposed are usually to enforce statutory regulation (e.g. road traffic offences), particularly where there is some social danger or concern presented by the proscribed behaviour.

A presumption that mens rea is required for a criminal offence unless Parliament clearly indicates otherwise (B (A Minor) v DPP [2000] 2 AC 428)

Question 31

Transferred Mens Rea

Answer 31

State of mind required for one offence can be ‘transferred’ from the original target or victim to another.

ONLY IF THE CRIME REMAINS THE SAME i.e. a defendant cannot be convicted if he/she acted with the mens rea for one offence but commits the actus reus of another offence.

R v Latimer (1886) 17 QBD 359, the defendant lashed out with his belt at one person but missed, striking a third party instead.

Issue of transferred mens rea can be important in relation to the liability of accessories.

If the principal’s intentions are to be extended to an accessory, it must be shown that those intentions were either contemplated and accepted by that person at the time of the offence or that they were ‘transferred’.

Question 32

R v Pembliton (1874)

Answer 32

If a defendant is shown to have thrown a rock at a crowd of people intending to injure one of them, the mens rea required for that offence cannot be ‘transferred’ to an offence of criminal damage if the rock misses that person and breaks a window instead.

Question 33

Transferred Mens Rea Example

Answer 33

A person (X) encourages another (Y) to assault Z. Y decides to attack a different person instead. X will not be liable for that assault because it was not contemplated or agreed by X. If, however, in trying to assault Z, Y happens to injure a third person inadvertently, then ‘transferred mens rea’ may result in X being liable for those injuries even though X had no wish for that person to be so injured.

Question 34

Foresight of the Probability of a Consequence vs Intent

Answer 34

A court/ jury:
a) 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
b) 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

You cannot claim that a defendant intended a consequence of their behaviour simply because it was virtually certain to occur. However, you can put evidence of their foresight of that that probability before a court, which may infer an intention from it.

Question 35

Does mens rea have to be proved?

Answer 35

Although not frequent, there have been isolated instances where the courts have held an offence does not require any mens rea to be proved

Question 36

Is there a specific legal definition of the word intent?

Answer 36

No, intent is not defined by law as it varies according to the offence being committed

Question 37

Is there a situation where strict liability can be imposed?

Answer 37

In some rare cases, strict liability can be imposed e.g. rape under 13