Mens rea Flashcards
What is the mens rea of an offence?
The mental state required for a particular offence.
What are the two types of intention in respect of mens rea?
Direct
Indirect
What is direct intention in respect of mens rea?
Where the defendant seeks to achieve the consequence of their act.
What is indirect intention in respect of mens rea?
When the consequences that the defendant achieves are a by-product of what they were intending to do.
What is the test for indirect intention?
Where direct intention, does not apply the jury must consider two issues:
- Was the consequence virtually certain to occur from the defendant’s act?
- Did the defendant appreciate the consequences were virtually certain to occur?
The jury may also draw inferences as appear proper from the evidence when deciding what this particular defendant foresaw.
What is recklessness?
When a risk is unjustified/unreasonable and the defendant is aware of such and goes on to take the risk.
What is the three part test for recklessness?
Was the risk justified? (objective)
Did the defendant personally see the risk? (subjective)
Did the defendant go on to take the risk?
If yes to all = recklessness.
What is negligence in respect of mens rea?
When the defendant falls below the standard to be expected of a reasonable person (objective test).
What are examples of negligence from a criminal perspective?
Gross negligence manslaughter
Statutory offences such as careless driving
What is a strict liability offence?
A crime where it is not necessary to prove mens rea or negligence.
What types of offences are strict liability offences? (6)
Food safety
Consumer protection
Misuse of drugs
The environment
Road safety
Health and safety
How do you identify a strict liability offence?
A statute may expressly state that it is one of strict liability or use clear words such as ‘intentionally’ that makes clear that it is not.
If a statute is silent, it will presume mens rea but this can be rebutted by the court by looking at the context and the criminality of the behaviour.
What is transferred malice?
Where the defendant has the intention or recklessness to commit a crime against one person, but it is transferred to an unintended victim and combines with the actus reus to complete the offence.
What are the limits to transferred malice?
Where the actus reus and mens rea relate to different types of offences, transferred malice does not operate.
If the mens rea of the offence includes recklessness, it may not be required to consider the doctrine of transferred malice at all.
How do the actus reus and mens rea coincide with each other?
The accused must have the necessary mens rea at the time they commit the actus reus.
