Mens rea

Question 0

Degrees of fault

Answer 0

Intention
Recklessness
Negligence
- all imply difference degrees of fault in the criminal law, set out in the Draft Criminal Code Bill which provides that:
- fault element: means an element of offence consisting:
a) state of mind with which a person acts; or
b) a failure to comply with a standard of conduct; or
c) partly of such a state of mind and partly such a failure…

Question 1

Mens Rea

Answer 1

Mental element of offence.

• burden of proving the mens rea is on the prosecution.
• mens rea is the intention to bring about some result.

Question 2

Subjective and objective fault.

Answer 2

Subjective assessment = any mens rea which is subjectively assessed according to what D was thinking at the time of the actus reus.
- despite weighty academic opinion that the ‘torch of orthodox subjectivism carried by Glanville Williams and the Law Commission, should be doused- however it remains the approach favoured by the judiciary particularly in serious crimes.

Objective mens rea= assesses what D was thinking but also considers what a reasonable person would have thought - and where D did not think in that way the mens rea may be satisfied.

Question 3

Subjective mens rea assessments

Answer 3

• Intention - Moloney 1985
• Recklessness- Cunningham 1957
• Wilful -Sheppard 1980
• Did D intend the result?
• Did D realise, recognise, want or aim to achieve the result?
• Did D foresee the result?

Question 4

Objective mens rea assessment

Answer 4

Recklessness - Caldwell (1981-2003)
Negligence -Adomako 1994

Should D have thought about the consequences of his acts?
Would a reasonable person have thought about what might happen?
And is D at fault for not thinking about it?

Question 5

Intention

Answer 5

Widely regarded as the highest level of mens rea.
Intention never been defined by Parliament however the Draft Criminal Code suggests that it is:

‘Person acts intentionally with respect to a result when he acts either in order to bring it about or being aware that it will occur in the ordinary course of events’.

Question 6

Mohan 1976- definition of intention.

Answer 6

INTENTION IS A DECISION TO BRING ABOUT A CERTAIN CONSEQUENCE.
In order to get away, D drove his car at a police officer.
Officer jumped out of the way and was not injured.
D was convicted of attempting to cause bodily harm to a police officer by wanton driving.

Question 7

Moloney 1985

Answer 7

INTENT COULD BE INFERRED WHERE THE DEFENDANT FORESAW THE CONSEQUENCE AS A NATURAL CONSEQUENCE OF HIS ACT.

D and his stepfather drunk a considerable amount at family party.

• after party were heard talking and laughing then been dared to pull the trigger after being accused of not having the guts to do so.
• he just pulled the trigger and he was dead.

Lord Bridge: ‘foresight of consequences as an element bearing on the issue of intention in murder, or indeed any other crime of specific intent, belongs not to the substantive law but ti the law of evidence.

Bridge used ‘natural consequences of intention’.

Question 8

Hancock and Shankland 1986

Answer 8

D’s were miners on strike and tried to prevent another miner from going to work by pushing a concrete block from a bridge onto the road in which he was driving along
-block struck the windscreen of the car and killed the driver.
-Trial judge used the Moloney guidelines (intention being inferred where and foresaw the consequence as a natural consequence of action), and were convicted of murder.
Court of Appeal dismissed the conviction.

Lord Scarman: ‘the Moloney guidelines as they stand are unsafe and misleading. They require a reference to probability- and a greater explanation that THE GREATER THE PROBABILITY OF A CONSEQUENCE, THE MORE LIKELY IT IS THAT THE CONSEQUENCE WAS FORESEEN AND THAT IF THAT CONSEQUENCE WAS FORESEEN THE GREATER THE PROBABILITY IS THAT THAT CONSEQUENCE WAS ALSO INTENDED.

Question 9

Hyam v DPP 1975

Answer 9

The mens rea for murder (intention to kill or cause GBH) is satisfied if D knew death or serious harm was highly probable.

Question 10

Nedrick 1986

Answer 10

Jury should ask themselves 2 questions when deciding upon intention:
1) How probable was the consequence which resulted from D’s voluntary act?
2) Did D foresee that consequence?
THE CONSEQUENCE HAD TO BE A VIRTUAL CERTAINTY AND D MUST HAVE REALISED THAT FOR THERE TO BE EVIDENCE ON WHICH TO INFER THAT D HAD NECESSARY INTENTION.

D had a grudge against a woman so poured paraffin through a letterbox of her house and set it alight.
-a child died in the fire.
D was convicted of murder but Court of Appeal quashed the conviction and substituted one for manslaughter.

Lord Lane CJ: jury should be directed that they are not entitled to infer the necessary intention unless they feel sure that death or serious bodily harm was a virtual certainty (barring some unforeseen intervention) as a result of the defendants actions and that the defendant appreciated that such was the case.

Question 11

Woollin 1998

Answer 11

D lost temper with 3 month baby and threw him towards his pram.
-child struck his head on a hard surface and died from fractured skull.

Model direction should be: ‘the jury should be directed that they are not entitled to find the necessary intention unless they feel sure that death or GBH was a virtual certainty, barring some unforeseen intervention, as a result of the defendants actions and that the defendant appreciated that such was the case.

Question 12

Law Commissions homicide review

Answer 12

led them to consider a number of proposals in relation to intention
Decided to retain the flexibility inherent in the present law and the moral room it leaves.

1) a person should be taken to intend a result if their act in order to bring it about.
2) in cases where the judge believes that justice may not be done unless an expanded understanding of intention is given, then they jury should be directed as follows: an intention to bring about a result may be found if it is shown that the D thought that the result was a virtually certain consequence of their action.
:

Question 13

Is intention a question of Law or Fact?

Answer 13

Judiciary has been inconsistent with its answer.
Fact =
Moloney - foresight is evidence from which an inference of intent may be made by jury.
Matthews and Alleyne - foresight of a virtual certainty is evidence from which the jury may find intention.

Law-
Nedrick -
Woollin
Re A

Question 14

Recklessness

Answer 14

Recklessness = taking an unjustifiable risk.

Test is a subjective form of mens rea, focused on D’s own cognition of the existence of a risk.

Question 15

Cunningham Recklessness

Answer 15

-requires not only proof of taking an unjustified risk, but proof that D was aware of the existence of the unreasonable risk.

Question 16

Cunningham 1957

Answer 16

THERE NEED ONLY BE REALISATION OF A RISK FOR RECKLESSNESS: (whereas for specific intent D must realised that the consequence is a virtual certainty)

D broke into a gas meter to steal money and in the process fractured a gas pipe.
Gas then leaked next door where the V was sleeping.
D was charged under s23 of Offences Against the Person Act 1861 with ‘unlawfully and maliciously’ administering a noxious substance to V endangering their life.
D MUST HAVE HAD INTENTION OR REALISED THERE WAS A RISK OF THE CONSEQUENCE OCCURRING AND GONE ON TO TAKE THAT RISK.

Byrne J: statutory definition of a crime, malice must not be taken in the old vague sense of wickedness in general but as either regarding, 1) an actual intention to to that particular kind of harm that was done or 2) recklessness as to whether such harm should occur or not (the accused had foreseen the risk that the particular kind of harm might be done, and yet gone on to take the risk.

Question 17

Stephenson 1979

Answer 17

Well established that where D closes his mind to the risk he can be found reckless in the subjective sense as Lord Lane puts it= ‘knowledge or appreciation of a risk of the proscribed harm must have entered the D’s mind even though he may have suppressed it or driven it out’.

Question 18

Objective recklessness: the rise and fall.

Answer 18

Caldwell and the objective approach brought a brief turn of approach to recklessness before the Cunninggham recklessness subjective test was introduced.

Question 19

Caldwell v MPC

Answer 19

UNDER CALDWELL TEST IT WAS SUFFICIENT TO CONVICT D FOR AN OFFENCE WHERE THE REASONABLE PERSON WOULD HAVE SEEN THE RISK EVEN IF D NOT, NOR EVEN WHEN WHERE D COULD NOT SEE THE RISK BECAUSE OF SOME LIMITATION IN HIS CAPACITY.

D set fire to a hotel where he had been employed.
D was so drunk that it did not occur to him that there might he people there whose lives may be endangered.

House of Lords held that a person is reckless as to whether or not any property would be destroyed or damaged if he does an act which creates an obvious risk that property will be destroyed or damaged.

• when he does the act he either has not given any thought to the possibility of there being any such risk;
• or has recognised that there was some risk involved and had nonetheless gone on to do it.

House of Lords in Caldwell- adopted the Law Commission’s recommendation that a person acts recklessly within the meaning of s1 Criminal Damage Act1971.

Question 20

Caldwell and the mental element

Answer 20

Sir John Smith wrote of Caldwell that ‘the decision sets back the law concerning the mental element in criminal damage in theory to before 1861.

It failed to respect the principle that for serious crimes at least the defendant should be provided to have a culpable state of mind.
Caldwell created injustice, and worked harshly against young people and this led to its downfall.

See Elliott v C 1983 where the D was a 14 year old girl with learning difficulties, she was guilty despite not appreciating the risk of her act- overruled by House of Lords in R v G.

Question 21

R v G 2003

Answer 21

2 boys aged 11 & 12 set fire to newspapers in the yard at the back of a shop and threw the lit newspapers under a wheelie bin.
- left the hard without putting the fire out.
-burning papers caused £1 million damages.
Boys were convicted under the Caldwell recklessness under both s1/s3 of Criminal Damage Act 1971.

Lord Bingham: a defendant could not be guilty unless he had realised the risk and decided to take it.

-important decision in reasserting the primacy of subjectivism.

Question 22

Negligence

Answer 22

Civil concept- if D’s conduct falls below the standard of a reasonable person then he is negligent.

Question 23

Bateman 1925

Answer 23

D was a doctor who attended a woman who was about to give birth.
His supervision of her labour was negligent and she died.

The standard of negligence that has to be proved in manslaughter cases is considerably higher than the level which is sufficient for civil claims in negligence.

Lord Hewitt CJ: in order to establish criminal liability, the facts must be such that, in the opinion of the jury, the negligence of e accused went beyond a mere matter of compensation between subjects and showed much disregard for the life and safety of others as to amount to a crime against the state and conduct deserving punishment.

Question 24

Adomako 1994

Answer 24

D was an anaesthetist who failed to notice, that during an operation, a tube supplying oxygen to a patient had become disconnected.
As a result, the patient died.

To establish gross negligent manslaughter, the elements of the civil tort of negligence must be present.

• D must owe V a duty of care;
• D must be in breach of that duty;
• the breach must cause the death.

Lord Mackay LC: the jury will have to consider whether the extent to which the defendant’s conduct departed from the proper standard of care incumbent upon him, involving as it must have done a risk of death to the patient- was such that it should be judged criminal’.

CIRCULAR TEST FOR NEGLIGENCE - the jury must decide that the breach is criminal and this is done by deciding that D’s conduct should be judged as criminal.

Question 25

Knowledge as a mens rea element.

USA v Dymaepe
Montila 2004
Saik

Answer 25

Knowingly in a statute as a prohibited state of mind.

Daymar: the Canadian Supreme Court held that knowledge is defined as true belief. The word knowledge refers exclusively to true knowledge.
This view was endorsed by the House of Lords in Montila & Saik

Saik: word true is not to be watered down- knowledge means true belief.

Question 26

Transferred Malice

Answer 26

=D is guilty if he intended to commit a similar crime but against a different victim.

Question 27

Latimer 1886-

Answer 27

D quarrelled with a man, during the quarrel D aimed a blow with his belt at the man.
Blow glanced off the man and struck and cut a woman on the face.
D was found guilty under s20 of the Offences against the Person Act 1861.

INTENTION AIMED AT 1 PERSON CAN BE TRANSFERRED TO AN UNINTENDED VICTIM.

Coleridge CJ: a man who has an unlawful and malicious intent against another, and, in attempting to carry it out, injures a third person, is guilty of what the law deems malice against the person injured because the offender is doing an unlawful act, and that is enough.

Question 28

A-G reference No3 1997

Answer 28

Convicted that the doctrine of transferred malice was still good law

Question 29

Gnango

Answer 29

Transferred malice still good law, and sufficient mens rea.

Question 30

Pembilton 1874

Answer 30

D threw a stone at some men during a fight.
The stone missed the men but broke a window.

Where the crime is completely different to that intended, then there cannot be any transferred malice.

Question 31

Ignorance of the law is no defence.

Grant v Borg

Answer 31

Lord Bridge: the principle that ignorance of the law is no defence in crime is so fundamental that to construe the word knowingly in a criminal statute as regarding not merely knowledge of facts material to the offenders guilt but also knowledge of the relevant law would be revolutionary and wholly unacceptable.