Mens Rea Flashcards
what is mens rea?
means “guilty mind”, it is proof of an element of fault or moral blameworthiness
mental element of the crime
looks at D’s state of mind at the time of committing the offence
everyone offence has its own MR
different levels of fault
direct intention
indirect intention
recklessness
negligence
strict liability
intention
some crimes can only be committed intentionally e.g. murder
defined in Mohan (1975) as “a decision to bring about the prohibited consequence”
also established that motive is not the same as intention (a mercy killer’s motive is to end pain but they still intend death so have the MR for murder)
intention is judged subjectively, it is based on D’s mind in those circumstances not on what the reasonable person would think — s.8 of Criminal Justice Act 1967
2 types; direct and indirect
direct intention
highest level of fault/MR
consequence is desired by D, it is wanted or aimed at for its own sake
e.g. murder — if someone’s purpose is to kill someone else and they achieve it then they have certainly intended the act
CASE = Mohan (1975)
indirect intention
consequence was foreseen by D as virtually certain
D goes ahead with their actions knowing that the consequence would be almost bound to result
CASE EXAMPLE = in Woollin, D threw baby towards a pram but the baby died when it hit the wall, if D foresaw the consequence as virtually certain then the jury is entitled to find that D intended it
direct or indirect intention?
second highest level of fault/MR
whether D had direct or indirect intention depends on their foresight of consequences
intention and foresight are not the same thing — foresight is part of the evidence from which intention may be inferred
D will have indirect intention if the consequence was a virtual certainty as a result of their actions and that D appreciated it was — as set out in Woollin (1998)
negligence
consequence was not foreseen by D, but the reasonable person would have foreseen it
judged objectively — a person is negligent if they fail to meet the standards of the reasonable person, it is not about what D was thinking
D is negligent if they were unaware of the risk but ought to have been aware
manslaughter is the only example of a serious crime in common law in which negligence is the basis of liability (although negligence must be gross)
CASE EXAMPLE = Adomako (1994)
a reasonably competent anaesthetist would have realised that the oxygen tube had become disconnected but D did not and so was negligent
strict liability
not even a reasonable person would’ve foreseen the consequence
a person who causes harm inadvertently and without any fault on their part will usually not be convicted of a crime — however, it’s sometimes in the public interest for parliament to create crimes of strict liability
in strict liability offences, D must be proved to have done the AR by a voluntary act but SL offences do not require MR to be proved in relation to at least one element of AR — Callow v Tillstone (1990)
“no fault” offences, D can be convicted if his voluntary act caused a prohibited consequence even though they are totally blameless and reasonable precautions were taken — Harrow v Shah (1999)
there is no defence of due diligence or even honest mistake — Cundy v Le Cocq (1884)
Gammon (1984) set out the basic principles of strict liability:
• there is a presumption of MR in criminal offences
• presumption is particularly strong if the offence is “truly criminal”
• this is only displaced if the statute clearly excludes MR, it is a matter of public safety and if it will encourage businesses to be more vigilant
strict liability; details about where SL offences are found, etc
most SL offences are created by statute law and are summary offences such as driving without a valid license
usually punished with a fine
common law example = outraging public decency (Gibson, 1991)
usually an act of parliament will make it clear if MR is needed by using words such as “intention” or “malicious” — judges will presume MR is required if the act is unclear
if the act makes it clear MR is not required then the offence will be one of strict liability
strict liability; truly criminal
presumption of MR will be strong if an offence is truly criminal
EXAMPLE = Sweet v Parsley (1970)
a woman was found guilty of allowing her house to be used for the smoking of cannabis, she had rented it to students and did not know cannabis was being smoked there. an offence involving drugs would be regarded as truly criminal
strict liability; examples
most SL offences are regulatory and are therefore not true crimes — Harrow v Shah (1999)
many concern road traffic offences or breaches of health and safety legislation (can include any issues of social concern) — Blake (1997)
penalty is usually only a fine and not a custodial or community sentence — B v DPP (2000)
absolute liability
occasionally a person will be liable for a crime of absolute liability, meaning they may be guilty even though the AR was involuntary
e.g. Larsonneur (1933)
transferred malice
D can be guilty if he or she intended to commit a crime against one person but actually commits the same offence against another
MR is transferred from the intended victim to the actual victim
EXAMPLE = Latimer (1886)
D aimed to hit a man with a belt but the belt struck a woman in the face, D was guilty of an assault against the woman even though he had not intended to hit her. the MR of the crime was transferred to the actual victim
MR cannot be transferred if the eventual crime committed is different to the one intended
EXAMPLE = Pembliton (1874)
D threw a stone at V but missed and smashed a window instead, MR cannot be transferred from a crime against a person to a crime against property so D was not liable for the damage
in some cases, D may not have a specific victim in mine e.g. a terrorist who plants a bomb intending to kill or injure anyone who happens to be there — in this case, D’s MR is held to apply to the actual victim
coincidence of AR and MR
in order for an offence to take place, both the AR and MR must be present at the same time
however, the AR and MR do not always coincide so judges have found ways around this:
• continuing act
• series of connected acts
continuing act
where there is initial AR and at some point while the act is still going on, D forms the MR
the AR and MR are said to coincide
EXAMPLE = Fagan (1986)
D drive on to a police officer’s foot by mistake and therefore had the AR of battery. when D realised what he had done, he refused to move the car and formed the MR. AR was treated as a continuing act so it does not matter than MR was formed while the AR was still continuing
