Mens Rea Flashcards
what are the two senses that mens rea may infer too
- narrow elemental sense
- broad blameworthy sense
what is the narrow elemental sense
mental state required in the definition of an offence, or with which the defendant actually committed the offence
what is the broad blameworthy sense
conditions for the criminal law to ascribe blameworthiness to an accused, or a general ‘evil will’
what is the rationale for requiring MR
connecting the accused to their actions, part of AR, through having a particular mental state
what is the Common element
connection between an agent, their actions, their understanding or cognition of those actions and their circumstances
what is intention
linked to aim, purpose, or objective of an action
what are some crimes that can only be committed intentionally
- assault
- theft
what are some crimes in Scotland that require special or specific intent + cases
- Murder - ‘Wicked intention’
(Brennan v HM Advocate 1977) - Assault - ‘Evil intention’
(Smart v HM Advocate 1975)
what is transferred intent
Doctrine used to deal with situations where there is an intention relevant to an offence committed by A against B, but resulting harm affects C instead
what is the classic case of transferred intent
Roberts v Hamilton 1989
what is the case where there happens to be no transferred intent
Blane v HMA 1991
what is recklessness
- Unjustified risk taking
- to act without regard to the consequences of one’s actions
what are the two issues in regards to recklessness
- Risk of specific result – indifference towards the risk
- Awareness of risk or the risk is foreseeable
what are the two ways in which recklessness can be determined
- subjective
- objective
what is subjective recklessness + case
-accused was aware of the risks involved in their actions
- Quin v Cunningham 1956
what is objective recklessness + case
- risk should have been foreseen or the accused should have been aware of it, in view of a reasonable person standard
- Allan v Paterson 1980
what is negligence
‘A person is said to be negligent when the conduct has failed to reach the standard of the reasonably competent or careful person’
what are the differences between objective recklessness and negligence
- Degree of carelessness is lower than for negligence
- Standard for negligence to be criminal is much higher than for recklessness – Paton v HM Advocate ‘ negligence must be gross, or wicked..’
- Argument for the criminal law to drop ‘negligence’ and prefer recklessness
what is knowledge in regards to the mens rea
- building block for intention generally
- Knowledge of surrounding circumstances can be a requirement for particular intentional actions
- Knowledge does not equal belief
Situations where knowledge can be relevant
- ‘dispositional knowledge’ and cognitive capacities – e.g. mental abnormality
- Knowledge of facts and ‘active knowledge’
- Ignorance and expected knowledge
what is Wilful ignorance/ Wilful blindness
Accused puts themselves wilfully in an position where they don’t know or cant know, about facts that are criminally relevant
what are two general ways in which a wilful lack of knowledge can be problematic
- A didn’t do enough to find out
- A actively avoided finding out
case of Friel v Docherty
- A charged with reset of MOT certificates
- deliberately accepted the possibility that the certificates were false, and avoided finding out
what is the Error of law
it’s not a requirement of mens rea that the accused should have been aware of the illegality of their behaviour
what are the two ways in which error of fact can show up
- A may have been in error about a fact that would make their conduct justifiable or excusable – reasonableness test
- A may have been in error about a fact relevant to an ingredient of the definitions of the crime for which they are being persecuted
what does mens rea infer about
mens rea doesn’t look to track mental states, but infers mental states from the factual circumstances and the actions of the accused
what is motive in regards to mens rea
refers to the explanatory reasons for someone’s actions
what is the traditional view in regards to motive and mens rea
- that motive is irrelevant to determine the mens rea, this is true to a large extent
- Establishing criminal liability doesn’t require or depend on the motives on the accused
what does motive in mens rea generally regard too
blameworthiness and sentencing – excusatory defences look at explanations of actions, mitigation in sentencing considers motives
