mens rea

Question 1

when is a defendant taken to have intended a result?

Answer 1

• if it was his/her aim or purpose, and
• if the result was foreseen as virtually certain to occur as a result of the defendant’s actions and
• the defendant realised this

Question 2

when will defendants be found to be reckless?

Answer 2

if they appreciated that because of their actions there was a chance that the result might occur, and it was unreasonable for them to act as they did

Question 3

when will a defendant be found to be negligent?

Answer 3

if she/he behaved in a way that a reasonable person would not. it is rare for negligence to count as sufficient mens rea

Question 4

what happens if a defendant is found to be voluntarily intoxicated?

Answer 4

the defendant will be found to have been reckless. if, though intoxicated, the defendant intended the result, s/he will still be held to have the requisite mens rea

Question 5

what is the definition of intention?

Answer 5

normal meaning - purpose/aim.

• Lord Bridge in R v Moloney (1985)
• R v Wright (2000)
• R v Ogunbowale (2007)

but in exceptional borderline cases the jury can be directed that they are entitled to find intention if a result was virtually certain to occur and the defendant realised it was virtually certain to occur

• R v Hales (2005)

Question 6

jury will need to be persuaded beyond reasonable doubt

Answer 6

R v Haigh (2010) - clear evidence D had smothered her child, but no evidence as to how or in what circumstances she had done this. because it wasn’t clear beyond reasonable doubt that she had murdered her child, she could only be found guilty of manslaughter and not murder

Question 7

what is the test for seeing whether a result was the purpose of the defendant?

Answer 7

Antony Duff’s test of failure: had the result not occured, would the defendant regard himself as having failed in his plan?

• but where a result is a means to achieve a desired end, it has to be treated with caution

Question 8

what should intention be distinguished from?

Answer 8

foresight, motive and premeditation

Question 9

distinguishing intention and foresight

Answer 9

• in relation to core meaning - whether the defendant’s act was likely to produce the consequence is irrelevant
• but many commentators also accept that if the defendant believes that it is impossible for his action to cause the result, he cannot be said to intend it, however much he may have wanted the result to occur
• foresight of a consequence is not the same as intention, but it is evidence from which a jury may infer or find intention

Question 10

Lord Scarman in *Hancock and Shankland *(1986)

Answer 10

the greater the probability of a consequence the more likely it is that the consequence was foreseen and…if that consequence was foreseen the greater the probability is that the consequence was also intended…[T]he probability, however high, of a consequence is only a factor

Question 11

distinguishing intention and motive

Answer 11

Moloney (1985): “intention is something quite different from motive or desire”

• possible to intend something without wanting it to happen, and having foreseen it

Question 12

Hales (2005)

Answer 12

D ran over a police officer in his car in attempting to escape from an arrest - not his motive to kill the police officer, but he was (as Keene LJ explained) “prepared to kill in order to escape” and therefore intended to kill

Question 13

intention and premeditation

Answer 13

a person can act instinctively in the heat of the moment and yet intend to kill - shouldn’t be thought that a person can intend a result only if s/he has carefully formulated a plan as to how to produce that result

Question 14

Woollin (1999)

Answer 14

Confirms the Nedrick approach: to establish intent the defendant’s actions must have been virtually certain to have caused the consequence, and the defendant must have appreciated that such was the case.

• jury may find indirect intention, i.e. the intention of the person who does not aim or need to kill or even to cause grievous bodily harm to anyone but nonetheless takes (what he knows to be) an outrageously high risk of doing so, if the result of the defendant’s action was virtually certain to be death or grievous bodily harm (objective test), and the defendant personally foresaw this (subjective test)

Question 15

what is the chart for deciding whether a defendant has intention?

Answer 15

was it the result of the defendant’s purpose?

• yes: he intended it
• no: move to the next question

was the result a virtually certain result of his actions and did the defendant realise that the result was a virtually certain result of his actions?

• no: he didn’t intend the result

Question 16

problems with Woollin

Answer 16

• must the jury find intention, or may the jury find intention? e.g. Court of Appeal in Matthews (2003) made it clear that it was a misdirection for a judge to tell a jury that if a result was foreseen as virtually certain then they must find intention, but then went on to say that there would be certain situations (including the case itself) where it wold be “irresistable” for the jury
• jury can take any factor they deem relevant into account (but isn’t this throwing the scope a little too wide?)
• Lord Steyn provides no justification for his changing of the word ‘infer’ to ‘find’ - why?
• does Woollin apply to just murder, or to all crimes requiring proof of intention?

Question 17

Moloney (1985)

Answer 17

• D and stepfather engaged on long drinking spree - then decided to engage in a shooting competition to see who could load and fire a gun the fastest - D won, but in so doing shot his stepfather dead
• held not guilty for murder (but for manslaughter). defence in this case wasn’t the intoxication, but that he lacked mens rea (of which the intoxication was evidence)
• established that a person can have intention, where they did not want the result but merely foresaw it.

Question 18

Cunningham recklessness

Answer 18

1. the defendant was aware that there was a risk that his/her conduct would cause a particular result AND
2. the risk was an unreasonable one for the defendant to take

Byrne J: “the accused has foreseen that the particular kind of harm might be done and yet has gone on to take the risk of it”

note that the risk doesn’t have to be obvious to the reasonable man - just the defendant. recall Stephenson (1979) - schizophrenic man set fire to a haystack, but because of his illness he didn’t realise that in lighting a match there would be danger to the haystack

Question 19

R v Parker (1977)

Answer 19

upheld R v Briggs (1977), amending definition to say “a man is reckless in the sense required when he carries out a deliberate act knowing or closing his mind to the obvious fact that there is some risk of damage arising from that act but nevertheless continuing in performance of that act”

Lane LJ: “in the view of this court, that type of action, that type of deliberate closing of the mind, is the equivalent of knowledge and a man certainly cannot escape the consequences of his actions in this particular set of circumstances by saying ‘i never directed my mind to the obvious consequences because i was in a self-induced state of temper’”

Question 20

Brady (2007)

Answer 20

affirmed that it’s merely enough for the defendant to have foreseen *a *risk, didn’t necessarily have to be obvious and significant

Question 21

Caldwell recklessness

Answer 21

will be guilty if

1. aware of a risk OR
2. there was an obvious and serious risk AND they failed to consider whether or not there was a risk

approved in R v Lawrence (1982), but confirmed abolished by Attorney-General’s Reference (No 3 of 2003)

Question 22

difference between cunningham and caldwell

Answer 22

caldwell included defendants who weren’t aware of an obvious risk - punished those who failed to notice a risk which would’ve been obvious to a reasonable person

• unfairly penalises those who fail to appreciate a risk they are incapable of foreesing
  
  • Elliot v C (1983)

Question 23

R v G and R (2003)

Answer 23

defendant must be shown to have subjectively appreciated a risk to the health or property of another but carried on in any event before they may be said to be criminally culpable. It abolished the “objective recklessness” test previously established under R v Caldwell

Bingham saw the need to modify Lord Diplock’s definition to take account of the defence of infancy, which contains the concept of “mischievous discretion”. This rule requires the court to consider the extent to which children of eight or more years are able to understand the difference between “right” and “wrong”. The Diplock test of obviousness might operate unfairly for 11- and 12-year-old boys if they were held to the same standard as reasonable adults. Bingham stated that “a person acts ‘recklessly’ with respect to:

(i) a circumstance when he is aware of a risk that it exists or will exist;
(ii) a result when he is aware of a risk that it will occur
and it is, in the circumstances known to him, unreasonable to take the risk.”

This brings the test back to a subjective standard so that defendants can be judged on the basis of their age, experience and understanding rather than on the standard of a hypothetical reasonable person who might have better knowledge and understanding.

Question 24

alternatives to caldwell and cunningham

Answer 24

1. defendants would be reckless if they are awake of a risk or failed to consider a risk which should have been obvious to a reasonable person of their age and mental abilities
2. defendants would be reckless if they were aware of a risk or failed to consider an obvious risk without a good explanation –> acquittal of those who failed to see a risk due to an illness or emergency, but lead to the conviction of those who failed to see the risk due to drunkenness or anger

Question 25

problems with R v G and R

Answer 25

• too easy for a defendant to claim that they didn’t consider a risk to others and so be entitled to acquittal
• confirmed the rules relating to intoxication - whereby a defendant who is voluntary intoxicated can be convicted without awareness of the risk. HL presented the intoxication rules as a special exception to the nromal requirement of having to prove a subjective state of mind, but given the number of crimes committed by intoxicated people it seems like the norm rather than exception

Question 26

negligence

Answer 26

if the defendant behaved in a way which a reasonable person would not

• uses an objective test - defendant’s state of mind not relevant in deciding whether the defendant is negligent, and there’s no need to show the defendant intended/foresaw a risk
• what matters is conduct

Question 27

problems with the meaning of negligence

Answer 27

1. what if the defendant acts out of panic/fear?
2. is the standard expected of the person ‘reasonable’/’ordinary’?
3. what if the defendant is unable to act in accordance with the standard of the reasonable person?
4. is it possible to expect the defendant to show a higher standard of behaviour than that expected of the reasonable person?

Question 28

gross negligence

Answer 28

in relation to manslaughter - show defendant killed negligently and this negligence was so bad as to justify a criminal conviction

Question 29

distinguishing between intention, recklessness and negligence

Answer 29

boundary between intention and recklessness

• Woollin direction: cases where a result was not the defendant’s purpose but it was foreseen as virtually certain

boundary between recklessness and negligence

• whether result was foreseen vs whether acted as a reasonable person would
• but - consider Parker (1977)

Question 30

intoxication and intent

Answer 30

1. if the drunken D had as his purpose the result he intended it, according to Majewski (1977), “a drunken intent is still an intent”
2. if the drunken D lacked intent he is not guilty of an intent-based crime, although he may be guilty of a recklessness based offence

Question 31

in what ways can intoxication be relevant to a criminal case?

Answer 31

1. D may for some crimes seek to rely on his intoxication as evidence that he lacked mens rea
2. prosecution may in some crimes seek to rely on D’s intoxication to establish D’s mens rea
3. some crimes specifically refer to being intoxicated, e.g. it is an offence to drive a vehicle under the influence of drink or drugs (Road Traffic Act 1988)

Question 32

voluntary intoxication

Answer 32

can introduce evidence of their intoxication to prove they lacked the mens rea in crimes of specific intent and are therefore not guilty

in crimes of basic intent the fact that they were intoxicated when they committed the crime will provide the evidence that they had the necessary mens rea

Question 33

involuntary intoxication

Answer 33

can introduce evidence of their intoxication to persuade the jury that they lacked the mens rea of the crime. if, however, the jury finds they had the mens rea they will be guilty; if they did not, they are not guilty

Question 34

knowledge requirement

Answer 34

involves a positive belief that a state of affairs exists. D who fears that circumstances may exist and deliberately decides not to make any further inquiries in case his/her suspicions prove to be well founded will be said to know the circumstances

Question 35

Forbes (Giles) (2001)

Answer 35

for cases where the mens rea is knowledge, careful consideration should be given to which aspects of the actus reus need to be known

Question 36

Grainge (1974)

Answer 36

knowledge requires a positive belief; a suspicion alone may not be enough

• Reader (1977): belief that property may be stolen isn’t enough for a belief that it is stolen. doesn’t mean that D must be absolutely certain that circumstances exist - if s/he assumes a set of facts to be true and has no serious doubts about them, that state of mind amounts to knowledge

Question 37

doctrine of ‘wilful blindness’

Answer 37

if court decides that D was aware that there was a risk that the circumstances existed and deliberately decided not to make any further enquiries to find out whether his/her fears are true, then in effect the D is presumed to know the facts

Question 38

Westminster CC v Croyalgrange Ltd (1986)

Answer 38

“it is always open to the tribunal of fact, when knowledge on the part of a D is required to be proved, to base a finding of knowledge on evidence that D had deliberately shut his eyes to the obvious/refrained from enquiry because he suspected the truth but didn’t want to have his suspicions confirmed”

Question 39

transferred mens rea

Answer 39

often called doctrine of transferred malice (though misleading because it applies to any mens rea)

applies where a person aims to harm one person/piece of property but misses and harms another

• Mitchell (1983)

Question 40

Attorney-General’s Reference (No 3 of 1994)(1998)

Answer 40

D stabbed pregnant girlfriend - child was born early as a result of the wound, and died from the wound - can D be charged with murder?

• at time of stabbing the foetus was not a person in the eyes of the law
• HL held not possible to transfer the intent to kill from the mother to the child who (at the time of the stabbing) didn’t exist as a legal person - but it can still be a criminal offence to kill a foetus, e.g. offence of procuring a miscarriage contrary to the Offences Against the Person Act 1861 s58
• cannot transfer intent to kill/cause grievous bodily harm from girlfriend to child who actually died - would count as ‘double transfer’ (mother –> foetus, foetus –> person it would become in the future)

Question 41

Kay v Butterworth (1945)

Answer 41

example of how the actus reus and mens rea must coincide in order to find the defendant guilty

• D is driving and begins to feel sleepy - decides to drive on rather than to stop for a rest - falls asleep at the wheel and kills a pedestrian
• although at the time when he drove into the pedestrian he was acting involuntarily and so technically ‘not driving’ (he was an automaton), his careless driving caused him to fall into an involuntary state –> caused pedestrian’s injuries –> guilty of causing death by dangerous driving

Question 42

exceptions to coincidence rule

Answer 42

• D may have mens rea at one point in time and then later (without mens rea) perform the actus reus
  
  • Meli v R (1954)
  • Le Brun (1991)
  • Lord Mustill in Attorney-General’s Reference (No 3 of 1994): the existence of an interval of time between the doing of an act by the defendant with the necessary wrongful intent and its impact on the victim in a manner which leads to death does not in itself prevent the intent, the act and the death from together amounting to murder, so long as there is an unbroken causal connection between the act and the death
• D committed actus reus at one point in time (without the necessary mens rea) but at a later point in time has the mens rea
  
  • initial act should be seen as continuing act which is still continuing at the point in time the mens rea arises
  • D’s failure to stop the harm he was causing amounted to a criminal omission for which D should be convicted
    
    • R v Miller (1983)
• unclear when actus reus occured
  
  • Attorney-General’s Reference (No 4 of 1980)

Question 43

A-G’s Reference (No 4 of 1980)

Answer 43

illustrates exception to coincidence requirement where unclear when the actus reus occured

• D slapped girlfriend, pushed her down the stairs, put a rope around her neck, dragged her back up the stairs, cut her throat and cut her body into pieces. unclear which act caused her death, but clear one of them definitely had
• held that as long as D had the necessary mens rea at the time of each of the possible acts that caused the death he could be properly convicted of murder/manslaughter

Question 44

Fagan v Metropolitan Police Commissioner (1969)

Answer 44

“it is not necessary that mens rea should be present at the inception of the actus reus; it can be superimposed on an existing act. on the other hand, the subsequent inception of mens rea cannot convert an act which has been completed without mens rea into an assault”

• so while D’s acts might have been initially unintentional, the time came when, knowing the wheel was on the officer’s foot, he remained seated in the car so that his body through the medium of the car was in contact with the police officer, he switched off the ignition, maintained the wheel of the car on the foot and used words indicating the intention of keeping the wheel in that position […] there was an act constituting battery which at its inception wasn’t criminal because there was no element of intention, but which became criminal from the moment the intention was formed to produce the apprehension which was flowing from the continuing act

Question 45

what does the existence of mens rea show?

Answer 45

Kadish (1987): criminal law regards people as autonomous agents who are responsible for their actions/choices they make

Question 46

functions of mens rea

Answer 46

1. ensures that censure correctly attaches to a criminal conviction (i.e. that D harmed V in a blameworthy way)
2. ensures blameworthy people are convicted of the right offence (Brudner, 2008) e.g. distinction between murder and manslaughter
3. helps define wrong done to the victim through identification of intent behind D’s actions
4. ensures V is given fair warning of what is criminal (Chan and Simester, 2011)
5. Chan and Simester: helps fight against over-criminalisation

Question 47

Baroness Wootton (1981)

Answer 47

• proposed a legal system containing no mens rea requirements - argued criminal court wasn’t in a position to assess the blameworthiness of a defendant
• offences should simply require proof that D harmed V - judge would be free to take into account D’s state of mind along with other relevant considerations at the sentencing stage

Question 48

cons of Wootton’s argument

Answer 48

• have to accept that a person could be guilty of a crime even though s/he was entirely blameless for his/her actions
• censuring effect of conviction would be lost
• cannot assume anymore that a person found guilty of a crime was morally blameworthy
• Evans 1987: if blameworthiness became irrelevant such a system could logically return to the practice (common in medieval law) of sentencing animals for criminal offences, i.e. if all you care about is conviction based on the consequences it could logically be possible to sentence an animal to death

Question 49

pros of Wootton’s argument

Answer 49

• acknowledges harm done to the victim
  
  • e.g. rape victim - D’s state of mind (i.e. whether or not he knew she was consenting) doesn’t matter to him/her bc it doesn’t change the fact that s/he was raped
• emphasises that we cannot be overconfident in the law’s ability to assess the blameworthiness of the D

Question 50

most serious criminal offences require proof of mens rea (B v DPP [2000])

Answer 50

there is a presumption that offences require proof of mens rea unless there is clear evidence rebutting that presumption

Question 51

choice theory

Answer 51

people are responsible for the things they chose to do; people should be guilty of a crime only if they chose effectively to do the actus reus

Question 52

capacity theory

Answer 52

• similar to choice theory - accepts argument that people are responsible for what they chose to do
• but also accepts it is proper to punish those who could have effectively chosen to act lawfully but didn’t

Question 53

character theory

Answer 53

• D is responsible for his/her own character
• if criminal actions reveal character traits that are opposed by the criminal law s/he should be punished

Question 54

how do the different theories suggest alternative understandings of mens rea?

Answer 54

choice

• supports crimes based on intention and cunningham recklessness
• wouldn’t support offences based on caldwell recklessness, negligence, or strict liability, where the D didn’t necessarily choose to commit a crime

capacity

• also supports intention-based crimes and cunningham recklessness
• but would also be willing to support criminal liability for inadvertence insofar as D could’ve appreciated the risk
• would therefore support acquittal for Stephenson but not C (in Elliot v C)
• would also allow some convictions to be based on negligence but only where D had the capacity of acting non-negligently
  
  • Moore (2000): suggests liability for negligence could be supported on the basis of unexercised capacity

character

• allows for greater degree of distinguishment/identification of nuances in crime

Question 55

Brutus v Cozens (1973) (definition of mens rea)

Answer 55

words like ‘intention’ and ‘recklessness’ should carry their normal everyday meaning

• but note objections to Lord Reid’s dicta?

Question 56

what makes intent the most serious form of mens rea?

Answer 56

• Michael Moore (1997): an intended action is one where the actor seeks to control the action and its result in the sense used in moral assessment
• Ferzan (2002): a person seeks to exert as great a control as possible over an action and its result where that action is intended
• but - intended act can also be seen as simply the ideal conception of a voluntary act (Duff, 1990)
  
  • Gardner (1998): intention reflects not just a choice to act in a way which will lead to a result, but a wholehearted decision to act in order to bring a result about

Question 57

what are the four main views on intention? (note: names are given by Herring)

Answer 57

1. ‘pure intention’ (Finnis, 1991)
2. ‘moral elbow room’ view
3. ‘oblique intention’
4. ‘Hyam’

Question 58

‘pure intention’

Answer 58

promoted by those who argue that intention should mean purpose, nothing more/less

• narrow view - popular with those who think it’s never justifiable to take someone else’s life
• suggest that if we don’t like the conclusion we should just change the law on what the mens rea for [crime - usually murder] is rather than artificially stretch the law on intention
• to intend to do [harmful thing] is to intend to kill them - consequences are inseparable (e.g. removing someone’s heart yet arguing you didn’t intend to kill)
• support ‘ethical doctrine of double effect’

Question 59

doctrine of double effect (in relation to pure intention)

Answer 59

Keown: permissible to allow a bad consequence to result from one’ actions, even if it is foreseen to follow, provided certain conditions as identified by the principle of ‘double effect’ are satisfied:

• act one’s engaged in is not itself bad
• bad consequence isn’t a means to the good consequence
• bad consequence is foreseen but not intended AND
• there’s a sufficiently serious reason for allowing the bad consequence to occur (this requires jury to make a moral assessment of what D did)

Question 60

‘moral elbow room’ view (as appears in Horder, 1995)

Answer 60

• intention is purpose, but where a D is aware that a result is virtually certain to follow from his actions the jury should be given a discretion to decide whether the mental state is wicked enough to be called intention
• but test would produce too much uncertainty
  
  • different juries would reach different conclusions on different facts –> inconsistent verdicts

Question 61

‘oblique intention’

Answer 61

result which is foreseen as virtually certain is simply intended

Question 62

‘hyam’

Answer 62

• if a result is foreseen as likely, then it is intended
• had support of majority of HL in Hyam but has few supporters now
• but if foresight of a result is intention then the boundary between intention and recklessness becomes blurred

Question 63

Williams’ argument in favour of oblique intent (broad view of intent)

Answer 63

strong case where the desired consequence is inseparably bound up with the foreseen (though undesired) consequence - ensures justice?

• Arrowsmith v Jenkins: political campaigner commenced to address people on the highway and in so doing knowingly caused the highway to be blocked –> charged with wilfully obstructing the highway though her purpose was to hold a meeting
• Brighton case of 1971: woman who inserted strychnine into a chocolate and attempted to administer it to V - inserted same drug into a batch of chocolates to shift blame/prove her innocence