Mens Rea

Question 1

What does mens rea mean?

Answer 1

It literally means criminal mind, for most criminal offences the prosecution need to prove both AR and MR. If someone commits an act, even if they cause harm, the criminal law will mostly not hold them liable unless they also have the necessary guilty mind.

Question 2

What are the 3 levels of mens rea?

Answer 2

• intention
• recklessness
• gross negligence

Question 3

What is recklessness?

Answer 3

Recklessness is a lower level of mens rea then intention, where an offence requires recklessness, the prosecution need to prove that the defendant took an unjustifiable risk, knowing that a prohibited result may happen. The first use of the phrase ‘subjective recklessness’ was used in R V Cunningham 1957.

Question 4

R V Cunningham 1957?

Answer 4

The defendant pulled a gas meter from a wall to steal the money it contained. Some gas seeped into the house next door and made his future mother-in-law very ill. Cunningham was convicted of the offence of ‘maliciously administering a noxious thing as to endanger life’ under Section 23 of the OAPA 1861. The Court of Appeal held that ‘malicious’ could mean intentionally or recklessly. Cunningham did not have the intention to poison the victim, the court considered recklessness, it was decided that the test was subjective - the defendant was reckless if he had foreseen the risk of a particular kind of harm, but still went on to take the risk.

Question 5

Caldwell 1981?

Answer 5

The test remained subjective for some years until the courts introduced an objective test in the case of Caldwell 1981 where the Court of Appeal decided that a defendant could be seen as reckless if they did an act creating an obvious risk even if the defendant was unaware of the risk.

Question 6

R V G and Another 2003?

Answer 6

The definition from Caldwell caused lots of problems and led to injustices and it was overruled in R V G and Another 2003. In this case, 2 boys aged 11 and 12 set fire to some newspapers which they left smouldering under a wheelie bin outside their local co-op. They assumed that the fire would burn itself out on the concrete floor but it didn’t and caused a large fire which resulted in over £1 million of damages. Using an objective, the risk was obvious and the boys were convicted of Arson under the Criminal Damage Act 1981. the House of Lords allowed their appeal on the basis of their age, meaning the risk was not obvious to them and over-ruled Caldwell, they ruled that recklessness is always subjective.

Question 7

What is the test for recklessness?

Answer 7

A person acts recklessly in respect to:
1. a circumstance when he is aware that it exists or will exist
2. a result when he is aware of a risk that it will occur
3. and it is, in circumstances known to him, unreasonable to take the risk
This was the definition provided by the Law Commissions Draft Criminal Code in 1989. So now, whenever a crime requires recklessness for the MR, the defendant will not be guilty unless they were aware that there was a risk - whatever the rest of us might think and even though the risk might seem really obvious. The prosecution must prove that the defendant realised that the risk and decided to take it anyway. Subjective recklessness applies to many offences including manslaughter.

Question 8

Advantages of recklessness?

Answer 8

Subjective recklessness if fairer to a defendant than the objective test. It can take into account things about a defendant which might make them incapable of realising there was a risk e.g. age, learning difficulties etc.

Question 9

Disadvantages of recklessness?

Answer 9

• does a subjective test make it easier for a defendant to avoid a conviction? It can almost be impossible to prove what was in a defendants mind.
• It might be argued that there is a conflict between public policy - protecting the public and the encouragement of good behaviour and legal principle which imposes liability when the defendant is to blame.
• The legal philosopher Hart felt that it does not seem unduly harsh to punish someone for gross unthinking and carelessness. Is it fair to apply an objective standard to ordinary people who are capable of appreciating a risk? It seems fair we should look at the defendants characteristics so that we do not punish people who could not have appreciated the risk but are we being too lenient to an adult who is perfectly capable of appreciating there is a risk but hasn’t bothered to consider it?
• It could be argued that the subjective test is harsher on victims and their families who might feel that the defendant should be punished for risky behaviour which might have caused serious injury, even death, and might have been a glaringly obvious risk to take to most people. What if a defendant was living on the 15th floor of a tower block and has a broken TV to get rid of but can’t be bothered to carry it downstairs as the lift has broken. So instead he throws it out of the window hitting and killing an old lady walking past underneath. If he says that he hadn’t considered there was a risk of harm, then he will be acquitted.

Question 10

What is intention?

Answer 10

Intention is one of the most difficult concepts to grasp in criminal law. There is no actual definition as to what we mean by intention, though there are guidelines that a judge can use to direct a jury.

Question 11

Is the test for intention subjective or objective?

Answer 11

The test for intention is always a subjective one i.e. what was in the defendant’s head at the time they committed the act - not what we think they should have been aware of. The Criminal Justice Act 1967 Section 8 makes this clear ‘a court or jury, in determining whether a person has committed an offence…shall not be bound in law to infer he intended or foresaw a result of his actions only by reason of its being a natural and probable consequence of his actions but shall decide whether he did intend that result be reference to all the evidence, drawing such inferences from the facts as appear in proper circumstances.’

Question 12

What are the two definitions of intention?

Answer 12

Direct and indirect.

Question 13

What is direct intention?

Answer 13

Where the defendant sets out to achieve a particular result. If they want something to happen and set out to do it and they achieve their aim.

Question 14

What is indirect intention?

Answer 14

It is where the defendant may try to argue that they meant to do something else, rather than what happened. This is the area where the courts have had the most difficulty and the law is still to some extent unsettled and uncertain. There is no statutory definition of intention and the guidelines have developed through a number of cases which have focussed on the relationship between the defendants foresight of consequence and the outcome. The leading case today is R V Woollin 1998 HL.

Question 15

Hyam 1972?

Answer 15

Mrs Hyam had put a blazing newspaper through the letterbox of a woman who was going on holiday with her boyfriend. Two children were killed in the fire and she argued that she did not want to kill the children but just set fire to the house to frighten the woman. The HoL ruled that ‘is she foresaw the consequences of her actions as highly probable that meant she intended it’ so that even if she did not want to kill the children she may be said to have intended it if she knew it was highly likely to happen, it is enough to establish a MR. The defendant’s murder conviction was upheld. Hyam was declared bad law in the case of Moloney 1985. Hyam’s case had not followed the rules in the Criminal Justice Act 1957, which just because someone foresaw something it did not automatically follow that they intended it. The jury need to consider all the evidence and draw inferences as to whether they think the defendant did intend it. The ruling here was too broad and resembled recklessness.

Question 16

Moloney 1985?

Answer 16

The defendant and his step-father had been drinking together at a family party and when everyone had gone to bed they engaged in a competition to see who could load and fire a gun the fastest. Moloney shot and killed his step-father, there was no evidence that they had argued and relations between the two were good. Moloney himself said he didn’t know what had happened ‘I just pulled the trigger and he was dead’. On appeal by the defendant against a murder conviction Lord Bridge made it clear that it was quite possible for someone to intend a result they didn’t actually want, he gave an example of someone being chased who boards a plane to Manchester in order to escape, he might not want to go to Manchester but he does intend to go there. Lord Bridge formulated the Moloney guidelines. There are two questions the jury should be asked:
- was death or serious injury a natural consequence of the defendant’s act?
- did the defendant foresee that?
If the answer to both questions was yes then the jury could infer that the defendant intended it, looking at all the other evidence in the case. The defendant’s murder conviction was quashed and manslaughter substituted. Moloney overruled Hyam and held that foresight of consequences is not the same as intention, it was just evidence of intention. This guidance caused problems. Although in the case itself Lord Bridge talked about probability he did not mention it in the guidelines. Something could be a natural consequence without it being very likely. The HoL considered the guidelines in the case of Hancock and Shankland 1986.

Question 17

Hancock V Shankland 1986?

Answer 17

This was a controversial case during the miners strike threw a concrete block off a motorway bridge when a convoy taking a strike-breaker to work was passing by. The block hit a taxi and killed the driver. The defendant’s claimed they wanted to block the road and discourage strike breaking but the jury convicted them of murder after the judge directed them using the Moloney guidelines. The HoL held that this was incorrect and substituted manslaughter. They ruled that the guidelines were ‘unsafe and misleading’ and should not be used without further elaboration - if at all. The problem was that the guidelines made no reference to probability, the fact there might be a one in ten million chance that death would result from the defendants actions, it might still mean it was a natural consequence but not something that the defendant would have thought about or intended at all. The guidelines were not wrong - Lord Bridge had still made clear that foresight of consequence was not the same as intention but part of the evidence that the defendant did intend it but they did not go far enough and could mislead a jury. The Hol added a reference about probability to the Moloney guidelines that could be given by a judge direction a jury ‘they require an explanation that the greater the probability of a consequence the more likely it is that the consequence was foreseen and that if the consequence was foreseen the greater the probability is that the consequence was also intended.

Question 18

Nedrick 1986?

Answer 18

The defendant held a grudge against a woman and poured paraffin through the letterbox of her house, setting it alight and killing a child in the house. The Court of Appeal quashed his murder conviction and substituted manslaughter. The Court of Appeal laid down the model direction to be given to juries on the meaning of indirect/oblique intent, it confirmed the Moloney ruling that foresight of consequences does not mean a defendant intended those consequences. The Court of Appeal said a jury must consider the following two questions ‘was death or serious injury a virtual certainty to result from the defendant’s illegal act?’ and ‘did the defendant foresee this as a virtual certainty?’ If a defendant foresees a consequence as virtually certain then the jury are entitled to infer they intended it, looking at the evidence in the case. Nedrick became the leading direction on intention and was used to guide juries.

Question 19

Woollin 1998?

Answer 19

The defendant lost his temper when his 3-month-old baby was choking on his food and threw him across the room towards his pram. The baby hit the wall and died of his injuries. Woollin claimed he had not wanted the child to die. The trial judge told the jury they might infer intention if they were satisfied that when the defendant threw the child he appreciated that there was a ‘substantial risk’ he would cause serious harm to the baby. The defendant was convicted of murder and on appeal, arguing that the trial judge should have used the phrase ‘virtually certain’ and not a ‘substantial risk’. The House of Lords reduced his conviction to manslaughter. They approved the Nedrick direction but changed the word ‘infer’ to ‘find’ saying ‘where the charge is murder and in the rare cases where the simple direction is not enough, the jury should be directed that they are not entitled to find the necessary intention unless they feel sure that death or serious bodily harm was a virtual certainty…as a result of the defendant’s actions and that the defendant appreciated that this was the case. The decision is one for the jury to be reached on consideration of all the evidence.’ In Nedrick the Court of Appeal had also said that if the defendant realised that for all practical purposes it was inevitable that death or serious injury would result the inference might be irresistible. They were implying that in those circumstances they jury were almost bound to find the defendant intended the consequence. In Woollin the Lords softened this approach as they wanted the jury to feel less pressured to find intention.

Question 20

Matthews ans Alleyne 2003?

Answer 20

An 18 year old student was thrown off a bridge into a river, he had already told his attackers he could not swim but they walked off and let him drown. They were convicted of murder and appealed. The judge had told the jury they must find intention if they foresaw as a virtual certainty that the victim would be killed or seriously injured. Upholding their murder conviction, the Court of Appeal held that on the facts of the case if they jury were sure that both defendant’s appreciated the virtual certainty of the victim’s death when they threw him into the river it was ‘impossible’ to see how they could not have drawn the inference that both intended the victims death. The Court of Appeal held that there was no real difference between a rule of evidence and one of substantive law, on these facts they felt the finding of intention was irresistible.

Question 21

What is the current position on intention?

Answer 21

• there is no real difference of intention.
• for most cases direct intention applies and the jury need no more guidance.
• intention does not mean the same as desire/wanting to achieve something.
• in the difficult case where the defendant says they wanted to do something else the jury should be directed using the Nedrick/Woollin guidelines.
• foresight of consequences is part of the evidence that the jury can use when deciding if the defendant intended them.
• but sometimes according to the Court of Appeal in Matthews and Alleyne 2003 it would be difficult for a jury not to find intention where the defendant is aware that a consequence will almost inevitably happen.

Question 22

Advantages of intention?

Answer 22

The guidance given in Woollin enables juries not only expand but to contract their definition of intention to meet the justice of the particular case. For example, in Moloney where the defendant killed his stepfather, their close loving relationship could be relevant in persuading a jury not to find intention and liability. Similarly, in Steane 1947, in order to save his family from a concentration camp during World War II the defendant made pro-German radio broadcasts. He was charged with the offence of doing acts likely to assist the enemy with intent to assist the enemy and escaped liability on the grounds that he had not made the broadcasts with the requisite intention, but instead acted to save his family. If the case were heard today the definition would allow a jury not to find intention despite the fact that Steane must have foreseen as a virtual certainty that is acts would assist the enemy.

Question 23

Disadvantages of intention?

Answer 23

• There is no statutory definition of intention, the cases don’t actually define intention but give guidelines on how a jury might decide that the defendant intended something. So the same facts might equally produce a conviction or acquittal depending on the composition of the jury. This leads to inconsistency in the law.
• Intention is a subjective concept based on the defendant state of mind at the time they commit the act. The jury must somehow get into the defendant’s mind and find out what he actually intended at the time.
• If foresight were equated with intention we could not distinguish between intention and subjective recklessness. There should be much clearer divisions between a state of mind that leads a murder conviction and one that would mean manslaughter instead.
• Juries may still equate foresight with intention particularity where a case is very emotive e.g. child killing or terrorist cases.
• It is difficult to produce a test of intention acceptable to all, even if we did have a statute, judges might interpret it differently.
• Juries could fail to distinguish intention from motive e.g. Kronlid 1996. This might also apply to euthanasia which our law says is murder.
• It is also not entirely clear whether the Nedrick/Woollin direction only applies to murder or to all other crimes where the prosecution must prove intention.
• Leaving intention undefined gives more flexibility to juries, ‘some moral elbow room’ (Clarkson) or as Horder says a ‘flexible friend’.

Question 24

Reform proposals for intention?

Answer 24

There have been many suggestions as to reform, the Law Commission Consultation Paper in 2005 proposed a definition as follows: a person acts intentionally with respect to a result when they act either; in order to bring about or knowing it will be virtually certain to occur knowing it would be virtually certain to occur if they were to succeed in his or her purpose in causing some other result. This would mean that foresight would be the same as intention, reverting to the direction in Hyam. After the consultation the Law Commission changed its final recommendation, they felt that a statutory definition should simply codify the common law and continue to leave a discretion to the jury. Foresight of consequences would remain part of the evidence that a jury can consider when they are deciding if the defendant had the necessary mens rea and of course in many cases where the defendant did foresee a consequence as virtually certain it would be difficult to see how they could then decide they did not intend it. But they do need that flexibility to consider all the evidence, so for example in Moloney where the defendant and his stepfather were in a loving relationship they could still decide that the defendant did not intend the result.