Mens Rea

Question 1

what are the two senses that mens rea may infer too

Answer 1

• narrow elemental sense
• broad blameworthy sense

Question 2

what is the narrow elemental sense

Answer 2

mental state required in the definition of an offence, or with which the defendant actually committed the offence

Question 3

what is the broad blameworthy sense

Answer 3

conditions for the criminal law to ascribe blameworthiness to an accused, or a general ‘evil will’

Question 4

what is the rationale for requiring MR

Answer 4

connecting the accused to their actions, part of AR, through having a particular mental state

Question 5

what is the Common element

Answer 5

connection between an agent, their actions, their understanding or cognition of those actions and their circumstances

Question 6

what is intention

Answer 6

linked to aim, purpose, or objective of an action

Question 7

what are some crimes that can only be committed intentionally

Answer 7

• assault
• theft

Question 8

what are some crimes in Scotland that require special or specific intent + cases

Answer 8

• Murder - ‘Wicked intention’
  (Brennan v HM Advocate 1977)
• Assault - ‘Evil intention’
  (Smart v HM Advocate 1975)

Question 9

what is transferred intent

Answer 9

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

Question 10

what is the classic case of transferred intent

Answer 10

Roberts v Hamilton 1989

Question 11

what is the case where there happens to be no transferred intent

Answer 11

Blane v HMA 1991

Question 12

what is recklessness

Answer 12

• Unjustified risk taking
• to act without regard to the consequences of one’s actions

Question 13

what are the two issues in regards to recklessness

Answer 13

• Risk of specific result – indifference towards the risk
• Awareness of risk or the risk is foreseeable

Question 14

what are the two ways in which recklessness can be determined

Answer 14

• subjective
• objective

Question 15

what is subjective recklessness + case

Answer 15

-accused was aware of the risks involved in their actions
- Quin v Cunningham 1956

Question 16

what is objective recklessness + case

Answer 16

• 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

Question 17

what is negligence

Answer 17

‘A person is said to be negligent when the conduct has failed to reach the standard of the reasonably competent or careful person’

Question 18

what are the differences between objective recklessness and negligence

Answer 18

• 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

Question 19

what is knowledge in regards to the mens rea

Answer 19

• building block for intention generally
• Knowledge of surrounding circumstances can be a requirement for particular intentional actions
• Knowledge does not equal belief

Question 20

Situations where knowledge can be relevant

Answer 20

• ‘dispositional knowledge’ and cognitive capacities – e.g. mental abnormality
• Knowledge of facts and ‘active knowledge’
• Ignorance and expected knowledge

Question 21

what is Wilful ignorance/ Wilful blindness

Answer 21

Accused puts themselves wilfully in an position where they don’t know or cant know, about facts that are criminally relevant

Question 22

what are two general ways in which a wilful lack of knowledge can be problematic

Answer 22

• A didn’t do enough to find out
• A actively avoided finding out

Question 23

case of Friel v Docherty

Answer 23

• A charged with reset of MOT certificates
• deliberately accepted the possibility that the certificates were false, and avoided finding out

Question 24

what is the Error of law

Answer 24

it’s not a requirement of mens rea that the accused should have been aware of the illegality of their behaviour

Question 25

what are the two ways in which error of fact can show up

Answer 25

• 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

Question 26

what does mens rea infer about

Answer 26

mens rea doesn’t look to track mental states, but infers mental states from the factual circumstances and the actions of the accused

Question 27

what is motive in regards to mens rea

Answer 27

refers to the explanatory reasons for someone’s actions

Question 28

what is the traditional view in regards to motive and mens rea

Answer 28

• 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

Question 29

what does motive in mens rea generally regard too

Answer 29

blameworthiness and sentencing – excusatory defences look at explanations of actions, mitigation in sentencing considers motives