Mens Rea

Question 1

Law Commission on term “mens rea”

Answer 1

Used in a strict sense, excludes important elements such as negligence or recklessness. The Law Commission prefers to use term “fault element”

Question 2

Strict liability

Answer 2

Does not require fault element

Question 3

Subjective categories of fault element - determent according to what D was actually thinking

Answer 3

(subjective) intention and subjective recklessness

Question 4

Objective categories of fault element - court’s view as to how D should have behaved (NOT determined by D’s state of mind)

Answer 4

(objective) negligence and objective recklessness

Question 5

Mohan

Answer 5

intention vs. desire
You cold intend an act, your purpose being to cause the prohibited result even though you didn’t desire that consequence –> D intends to kill if they set out to kill (or its their purpose/aim)
If D purposes to kill, doesn’t matter that conduct very unlikely to achieve it, intention nonetheless

Question 6

Lord Hailsham in Hyam v DPP

Answer 6

“Intention includes means to an end”

Question 7

Gillick v West Norfolk Area Authority

Answer 7

OBITER - Flexibility on the principle of intention for policy reasons:
A doctor who intentionally gave contraceptive advice to girl under 16, knowing she would assist/encourage men to have sexual intercourse with her would NOT be guilty of aiding and abetting any ensuing unlawful sexual intercourse
–> ultimate objective to prevent pregnancy not cause her to have sex

Question 8

“Non-purpose intention crimes”

Answer 8

Crime was subsidiary to your main purpose - prohibited result is a virtually certain consequence rather than a definite condition of D’s ultimate aim. Theoretically, D’s primary purpose can be achieved without producing forbidden result

Question 9

Hancock and Shankland

Answer 9

Foresight by D that the prohibited result is likely (not virtually certain) consequence of primary objective is NOT, in itself intention.
HOWEVER: argued that a high degree of foresight COULD provide basis for jury to make an evidential inference of intention

Question 10

Nedrick

Answer 10

Restricting Hancock: evidential inference of intention only when consequence foreseeable as virtually certain rather than merely likely

Question 11

Lord Lane’s remarks in Nedrick

Answer 11

Ambiguity as to whether court was saying that foresight of virtually certain prohibited result was solely an evidential inference from which intention could be drawn or whether it was actually in itself intention

Question 12

Woolin

Answer 12

In anger and frustration, D threw his three-months old son across the room, causing serious brain damages from which he later died. Prosecution accept ultimate aim = release anger, primary intention = cause GBH not kill
–> HoL reversed CoA, D not guilty of murder

Question 13

Lord Steyn’s leading judgement in Woolin

Answer 13

Modification of the Nedrick test: jury would not be entitled to find the necessary intent unless they felt sure that the prohibited consequence was virtually certain of D’s acts and D was appreciative of this - D not only has to believe that prohibited consequence was virtually certain but the consequences also had to be in fact virtually certain!

Question 14

Ambiguity in Woolin’s modification of the Nedrick test

Answer 14

Stating it in the negative and substituting “infer” for “find”, which suggests that intention is pre-established and only to be discovered as an empirical fact rather than legally construed as an implication of law

Question 15

Effect of Wollin

Answer 15

Court might have wanted to give the jury a modicum of discretion as to allow them NOT to find intention - especially in “double effect cases” like Gillick, Moor, Re A (children)

Question 16

“Double effect cases”

Answer 16

D has a normal primary purpose but realises the virtual inevitability of an illegitimate side effect later

Question 17

Moor

Answer 17

Double effect case: doctor provides painkillers to relieve suffering of terminally ill patient, realising at the same time that this is virtually certain to shorten their life

Question 18

Re A (children)

Answer 18

Double effect case: conjoined twins - saving viable twin Jodie was virtually certain to lead to death of non-viable twin Mary

Question 19

Matthews and Alleyne vs. MD

Answer 19

Disagreed as to whether Wollin had included virtual certainty in the definition of intention ore merely preserved it as a basis from which to draw an evidential inference of intention

Question 20

Matthews and Alleyne (threw victim into river, knowing that he could not swim)

Answer 20

Virtual certainty remains evidential inference only. However, basically said that it did not matter whether virtual certainty was rule of evidence or substantive law - once established, very little to choose (quoting Lord Lane in Nedrick: “irresistible inference”)

Question 21

MD

Answer 21

Virtual certainty = intention.
Mother removed feeding tube and liquids entered her son’s lungs, killing him.
Prosecution (rather oddly) argued oblique intention, she did not want to kill son but knew it was virtually certain result of removing feeding tube
CoA: conviction only safe if jury read virtual certainty = direct intention

Question 22

Jones and others

Answer 22

Applied virtual certainty as the applicable test in non-purpose cases not involving murder (here, s. 18 OAPA)

Question 23

De Than and Heston on autonomy

Answer 23

Individualist ontology that underlies criminal responsibility: we refuse to consider political/social context underlying individual’s act. Considerations of motives/life experiences would leave us in intractable position to considering to what extent the individual really does act autonomously

Question 24

Smith (1960)

Answer 24

Good motive will not negate criminal liability.
D was charged with corruptly offering a gift to a mayor . In fact, D’s motive here was to expose the major as corrupt, he had no intention of going through with it. However, he did intend to corruptly offer

Question 25

Yip Chiu-cheong (Privy council)

Answer 25

Good motive will not negate criminal liability - law enforcement officers importing illegal drugs to incriminate members of a drug ring

Question 26

Chandler v DPP

Answer 26

Judges isolate courtrooms from political debate: Ds entered airfield to protest against nuclear weapons, charged under Official Secrets Act 1911, requiring proof that they had acted for a PURPOSE prejudicial to the interests of the State. To avoid Ds making a political argument, court construed PURPOSE narrowly as to render it equivalent to INTENTION to illegally enter

Question 27

Anti-Terrorism, Crime and Security Act 2001

Answer 27

Occasionally, statutory definitions of offences CAN compile courts to take MOTIVE into account –> here, creation of “radically aggravated” offences

Question 28

Motive in defences

Answer 28

Motive can play a part in defences: D will avoid liability for violence inflicted in self-defence or prevention of a crime.
Motive = self-defence or public interest of crime prevention

Question 29

Recklessness timeline

Answer 29

Cunningham recklessness –> Caldwell recklessness –> Reid’s prediction of fundamental change of Caldwell formulation –> R v G’s abolishment of Caldwell recklessness and return to Cunningham subjective recklessness

Question 30

“Recklessness” (subjective or objective, when it was still applicable)

Answer 30

Risk of proscribed consequence which D is taking must be an unjustifiable one

Question 31

Cunningham (subjective recklessness)

Answer 31

D must know they are taking a risk of the forbidden consequence and consciously taking it. If court decides ask was unjustifiable –> D is subjectively reckless with regard to it

Question 32

Stephenson

Answer 32

It is for the court to decide it the risk assumed was unjustifiable - Lord Geoffrey: in all circumstances unreasonable

Question 33

Chief Constable of Avon v Shimmen

Answer 33

Threshold to trigger subjective recklessness: AWARENESS of the POSSIBILITY that risk could result in harm, no need to show awareness of risk being virtually certain/even probable
Here, subjective recklessness was ruled out because possibility never dawned on D

Question 34

R v G and R [2003]

Answer 34

Adopted definition given by Law Commission in its draft Criminal Code Bill - A person acts recklessly …

… a circumstance when they are aware of a risk that it exists or will exist
… a result when they are aware of the risk that it will occur

and it is in the circumstances known to them, unreasonable to take risk

Question 35

Objective Recklessness

Answer 35

Caldwell. The decision in R v G and R heralds the complete demise of the concept of objective recklessness, which had caused terminal confusion

Question 36

Lord Diplock’s Caldwell objective recklessness

Answer 36

(1) D does an act which creates an obvious risk AND
(2) When they do that act they EITHER
a. have not given any thought to the possibility of being such a risk
b. recognised that there was some risk involved but nonetheless went on to do it anyway

NOTE: recklessness would be satisfied if either subjective or objective mens rea demonstrated (subjective recklessness wasn’t finished all together)

Question 37

Lawrence

Answer 37

Endorsed Caldwell, except that the House modified (1) so that the risk had to be both, obvious and serious
Risk needs only be obvious to reasonable person, not invested with any characteristics of D whatsoever

Question 38

2 main criticism of Caldwell

Answer 38

1) HoL ignored Criminal Damage Act 1971 (and this Parliament’s intention) which defined “reckless” in criminal damage as ONLY subjective recklessness
2) Failing to think of risk is NOT a state of mind, it is the absence of a particular state of mind –> D who does not have ordinary person’s capacity to perceive ordinary risks

Question 39

Lord Goff in Reid on Caldwell test

Answer 39

“serious” could apply to either likelihood of risk being produced or the extend of damage that would happen if risk materialises

“obvious” attached only to 2.a - “obvious” vs. recognition of “some risk”

Question 40

The Caldwelll lacuna/loophole

Answer 40

Where D did give thought to the risk but erroneously concluded that there was none –> not subjectively reckless because they did not recognise risk when they acted (2.b) but not objectively reckless either because they had given no thought to it (2.a)

Question 41

Defence of Cadwell lacuna

Answer 41

Unsuccessfully pleaded in Shimmen and Merrick

Question 42

Reid’s rejection of Caldwell recklessness - Lord Bingham’s 4 reasons

Answer 42

1) conviction of a serious crime should require proof of a culpable state of mind in actual perception of harmful risk NOT mere stupidity or lack of imagination
2) Unfairness - children example (citing Elliott v C: 14 year old girl with low intelligence was Caldwell reckless even though she had no awareness of the consequences that would arise)
3) quotes leading scholars (Profs. Smith and Glanville Williams
4) Criminal Damage Act 1971

Question 43

Brady

Answer 43

Even after R v G and R , courts have been guilty of confusing objective and subjective tests.
Drunk man perched perilously on bannister, fell off, landed on dancer rendering her quadriplegic –> trial judge misdirected jury as to whether objective or subjective tests should apply and appeal was allowed

Question 44

Parker

Answer 44

The narrowness of fault based cognition: D’s awareness of risk has not prevented courts from adjusting subjectivity.
Here, D broke public telephone box in anger/frustration after failing to make a call.
Court: if he did not know of the risk, it was because he deliberately closed his mind to the obvious –> sufficient for subjective recklessness (this was accepted By Lord Bingham in R v G and R)

Question 45

Booth

Answer 45

Closing the mind to risk satisfies subjective recklessness, because it is predicated in actual knowledge of the risk - he was aware of risk however fleetingly in his rage and frustration but dispatched it to the inner recess of his mind

Question 46

“Negligence”

Answer 46

Failure by D to act in conformity with an objective standard decided by the courts looking back at that actually happened –> D’s actual state of mind at the time is irrelevant, the yardstick is the reasonable objective person

Question 47

2 forms of negligence

Answer 47

Ordinary: equivalent to everyday carelessness

Gross: extreme/serious negligence (similar to objective limb of Caldwell recklessness)

Dividing line has no precise definition, at the discretion of the court. The distinction is usually not necessary because most crime require proof of ordinary negligence (e.g. driving without care and attention)

Question 48

Adomako

Answer 48

In cases of manslaughter by criminal negligence involving a breach of duty, 2 assessments of negligence:

1) test for ordinary negligence in establishing whether breach of duty
2) If breach, jury would determine if breach qualified as gross n. Difference to be determined according to Bateman direction

Here, appellant was anaesthetist who failed to notice/respond to oxygen pipe having become disconnected

Question 49

Lord Atkin in Andrews v DPP

Answer 49

High degree of negligence needed to establish manslaughter

Question 50

Bateman (Lord Hewart)

Answer 50

Leading case on the distinction between ordinary and gross negligence:

Gross negligence if negligence went beyond a mere matter compensation and showed such disregard for life and safety of others as to amount to a crime against the State, deserving punishment

Question 51

Adomako’s test of gross negligence manslaughter

Answer 51

Replaced old test of reckless manslaughter (Lawrence 1982 NOT 1974) .
Reckless manslaughter continues to apply ONLY in categories of driving offences as in Lidar

Question 52

Stone and Dobinson

Answer 52

Negligence imposes objective standard applying to all. Increased if D member of a group that has specific skills (doctor - judged against reasonable person with that skill set) BUT not decreased to take into account what could have been expected of D given their weakness

Question 53

s. 5 Domestic Violence, Crime and Victims Act 2004: injustice of an astutely objective stance

Answer 53

Designed to cover cases where child has been killed by unlawful act of a member of its household but it cannot be proven whose.
ANY adult > 16 who had regular contact with child may be convicted of causing or allowing death. Liable if ought to have been aware of risk and took no reasonable steps to protect

Question 54

Mens rea as to circumstances

Answer 54

Intention = knowledge
Mens rea of rape: intention to have sexual intercourse without the victim’s consent –> a) intention to have sex and b) knowing that victim was not consenting
OTHERWISE D could just say never intended to rape

Question 55

Hall

Answer 55

Courts appreciate uncertainty in human affairs: knowledge question of degree rather than certainty.
Here, a person would have actual knowledge that goods were stolen where he was told by someone with first-hand knowledge –> definite and correct belief

Question 56

Montila

Answer 56

Intention = knowledge, clarification of Hall: believe with virtual certainty and no significant doubt. This belief must also be objectively correct

Question 57

Westminster CC v Croyalgrange

Answer 57

Knowledge –> wilful blindness

D was charged with knowingly allowing his premises to be used as a sex establishment without a licence

Question 58

Roper v Taylor’s Central Garages - Lord Delvin

Answer 58

Lord Delvin famously referred to “knowledge of the third degree”, meaning constructive knowledge (i.e. objective recklessness (comparison: constructive trust - courts establish what ought to have been known)

Question 59

“Indifference”

Answer 59

On occasion, courts have used concept of indifference to convey the fault element - controversial in terms of objective recklessness

(before Sexual Offences Act 2003) rape required D either knew V wasn’t consenting or was reckless towards it
Here, courts often objective recklessness = indifference (Kimber)

Question 60

Criticism of “indifference”

Answer 60

D cannot be indifferent because to be indifferent is already predicted on a conscious decision to disregard risk –> indifference = subset of SUBJECTIVE recklessness NOT objective recklessness

Question 61

EXAMPLE: mistake may prevent D from having mens rea required for crime charged

Answer 61

D mistakenly believes stolen goods they are handling are not stolen –> they cannot have the requisite mens rea of knowing/believing goods to be stolen

Question 62

McCullum

Answer 62

If D only believes goods to be stolen rifles rather than stolen antiques, mistake will not negate mens rea because because he nevertheless believed they were stolen

Question 63

Mistake –> subjective recklessness

Answer 63

Negation of mens rea if mistake in relation to acts reus, no need for mistake to be reasonable (because subjective)

Question 64

Mistake –> objective fault element

Answer 64

Unreasonable (ordinary) or grossly unreasonable mistake (gross) will not negate mens rea (because objective) but rather be evidence of fault element because evidence of negligence

Question 65

Negation of mens rea by mistake

Answer 65

Will depend of form of mens rea prescribed for each crime

Question 66

Prince

Answer 66

For strict liability offences, it doesn’t matter how reasonable your mistake was, it will not negate mens rea because no fault was required in the first place

Prince took an unmarried girl < 16 from possession of her parents without consent though he reasonably believed she was much older

Question 67

R v G [2008]

Answer 67

Strict liability - mistake doesn’t apply.
15 year old boy had sex with 12 year old girl (age of consent 13), whom he believed to be 15. Convicted of rape under Sexual Offences Act 2003 because strict liability office - no matter how convincing, being under 13 she could not consent

NOTE: because of context of his mistake not given life imprisonment but 12-month conditional charge

Question 68

Transferred malice

Answer 68

Mens rea is allowed to transfer and marry with the acts reus (D intends to destroy police car by throwing a petrol bomb but misses and destroys resident’s car)

Question 69

Latimer

Answer 69

Latimer got into fight with another man in pub, took off his belt and smacked it against opponent’s face, belt ricocheted off the man’s face and seriously injured woman nearby –> liable even tough he did not intently directed at her

Question 70

Attorney General’s Reference (no 3)

Answer 70

Intention to kill/cause serious injury to a pregnant woman could not be transferred from mother to foetus to make D guilty of murder where Foetus was born alive but died subsequently as a result of premature birth that stemmed from the attack

Question 71

Reasoning in A-G’s Reference (no 3)

Answer 71

You cannot have “double transfer” of intention: first mother –> foetus and then foetus –> child unborn
Murder only possible if
a) D intended to kill/cause serious injury to foetus itself or child it would become after birth
b) foetus was born alive and died subsequently as result of injuries inflicted on mother or foetus NOT premature birth

Question 72

Pembliton

Answer 72

Transferred malice cannot be used to mix and match actus reus and mens rea of different crimes:
if you throw a rock at B intending to comment an offence against the person, your mens rea cannot be transferred to the acts res of criminal damage if the rock misses and smashes a near by window

Question 73

Wright (George)

Answer 73

Fault element must coincide in time with the performance of the actus reus: W was not in possession of cannabis with intend to supply within the meaning of the Misuse of Drugs Act 1971, s. 5(3) since the intention to supply had to be the intention to supply the thing the thing he had at that material time - could not be convicted for intent to supply immature plants

Question 74

EXCEPTION to coincidence of actus reus and mens rea

Answer 74

Continuing mens rea HOMICIDES (homicides where MR and AR don’t coincide)

Question 75

Thabo Meli

Answer 75

Continuing mens rea:
Ds struck V over the head, intending to kill him. Mistakenly believing he was dead, they threw him off a cliff to fake an accident, from which he died (didn’t intend to kill because believed to be already dead)

Enough that D has mens rea during any time of the series of acts that led to V’s death - Privy council attached great importance to fact that it was a pre-conceived plan to kill V from the beginning

Question 76

Church

Answer 76

Extended principle of continuing mens rea to cases not involving a pre-arranged plan
Church, with MR for murder beat woman unconscious, panicked thinking she was dead and threw her into river where she drowned

Question 77

Le Brun

Answer 77

Where initial unlawful application of force and eventual death are parts of the same sequence events/transaction, the time difference between the two events does not serve to exonerate the defendant from liability:
D hit his wife on the chin, knocking her unconscious. Tried to drag her body along the street to avoid detection but lost grip - she hit her head and died –> D convicted of manslaughter

Question 78

Mitchell

Answer 78

Transferred malice: D pushed 72 year old who fell on 84 year old who died - dangerous and intentional, transferred –> Mitchell liable for manslaughter

Question 79

Alan Norrie: “After Woollin”

Answer 79

Divisions within decision over what constitutes intention
Lord Steyn (virtual certainty subjectivity) vs. Lords Hope and Goff (Scots law position that intention = moral recklessness

TERRORIST BOMBER EXAMPLE

Lord Steyn: no direct intention on behalf of terrorists of the bomb disposal experts’ deaths - foreseeable as likely consequence of primary purpose of destroying plane but not virtually certain because experts

Lords Hope and Goff: fallacy in dividing victims by function. Moment terrorist renders virtually certain death of certain members of broader class of people, it doesn’t matter what the individual probability ratio are between them

Question 80

Syrota and Williams on Caldwell

Answer 80

Lord Diplock was in effect arguing an estoppel form of capacity defence:
allowed to depend on subjective characteristics that impinged on your judgement that arose through your own fault (drinking, overexcitement, rage)
on the other hand, you would be allowed to depend on mental deficiency
–> Lord Diplock’s approach wasn’t entirely objective