MENS REA Flashcards
What is Mens Rea?
The mental element required by the definition of a particular crime.
a. the intention to cause the actus reus of a crime
b. or the recklessness whether it be caused
What is the “proof/degrees of fault”?
a. a state of mind with which a person acts
b. a failure to comply with a standard of conduct (recklessness)
c. partly due to state of mind and failure (negligence)
Mens rea is used by the courts to include all degrees of fault
What is Intention?
a. D’s aim or purpose (want or desire is not the same as intention)
b. the state of mind of D is the only thing that matters (not the S.o.M of a reasonable person)
c. R v Mohan defines intention as a decision to bring about a particular consequence, does not matter if the accused desire the consequence or not
What are the 2 types of intention?
a. Direct Intention - The actor’s purpose to cause it
b. Indirect Intention - D knows it is a virtually certain consequence
What is Direct Intention?
a. Where your desire is to produce that outcome
Where one desires an outcome and acts to produce it
b. Equivalent to desire - someone desires an outcome and acts to produce it
-D wants to kill and acts in order to kill
-If the result is Ds purpose, it’s certainty
of happening is immaterial
What is Indirect Intention?
a. Where ones does not necessarily want a particular outcome but it is a consequence of his act.
Is more than mere desire; refers to the S.o.M where D might act and produce an outcome he does not necessarily desire
b. while foresight is not intention, intention can be inferred
c. the result may not be desired (for its own sake) but it is intended;
d. Indirect Intention should not be confused with recklessness as D knows (or think he knows) that his aim of A will lead to the occurrence of B
What are the 2 things that must be established if the evidence suggests Indirect Intention?
- did D’s act lead to the outcome?
2. was the consequence foreseen as virtually certain?
Intention
CASES
Hyam
D attempts to frighten V (Ms. Booth) her rival for X’s affection. D puts blazing newspaper in V’s letterbox (in her house) resulting in the death of 2 of her children.
PRINCIPLE: Intention = Foresight
If D knew it was HIGHLY PROBABLE THAT THE ACT WOULD RESULT IN S.B.H then intention can be inferred.
Moloney
D shot and killed his father - who he loved- after he pulled the trigger of a shotgun during a drunken challenge.
PRINCIPLE:
Judge insisted on the need for a ‘moral certainty’, using the term natural consequence t mean a natural consequence that is virtually certain to occur. Thus ‘likelihood’ of the consequence was too broad. If D saw the outcome as a NATURAL CONSEQUENCE OF THE ACT then intention can be inferred.
R v Hancock & Shankland
Two striking miners pushed concrete blocks into the street which struck a taxi taking another miner to work. They simply intended to block the road not cause S.B.H or death.
PRINCIPLE:
In applying Moloney’s Natural Consequence the court held that a thing can be a natural consequence but that does not mean it will happen. Only if the likelihood of the outcome is FORESEEN WITH A HIGH DEGREE OF PROBABILITY can intention be inferred.
Nedrick
D has a grudge with X and poured paraffin (liquid wax) in X’s letterbox and set fire to it resulting in the death of a child. The court equated intent with foresight and convicted D of murder.
PRINCIPLE:
In looking at the confusion resulting from previous cases the appeal court asked:
How probable was the consequence of D’s voluntary act and did he foresee this consequence.
ONLY if the consequence is VIRTUALLY CERTAIN can intention be inferred.
*virtual certainty mean a very high probability of occurance.
Woollin:
D lost his temper and threw his 3month old son on to a hard surface, killing him. D had not thought he would kill the baby, nor did he intend to. The court argued that he must have known that S.B.H was a virtual certainty. D was convicted of murder as the court believed he knew there was a ‘substantial risk ‘that his actions would cause S.B.H. and appealed.
PRINCIPLE:
The use of the term ‘substantial risk’ blurred the lined between intention and recklessness (and enlargened the scope of murder). In this case te principle in Nedrick (foresight of virtual certainty) was combined with D’s intention to cause S.B.H or death. However, though D knew the virtual certainity of S.B.H his intent was to vent his anger (and nothing more).
ONLY A RESULT THAT IS FORESEEN AS A VIRTUALY CERTAIN OUTCOME of the act can infer intention.
What is Basis and Specific Intent
Basic Intent
- An intention (or any other form of mens rea) that does not go beyond the actus reus.
- Crimes whose definitions imply a mens rea (intention, recklessness or knowledge) which does not go beyond the actus reus.
- An intent to do the act required (deliberate or voluntary)
- Recklessness is sufficient mens rea
Specific Intent
- D’s intention must be proved to secure conviction for a particular offence for which intention is the only state of mind specified
- Aka a direct intention
- a mens rea required for particular offences only (D may successfully plea of its absence (e.g. voluntary intoxication).
Ulterior/Further Intention
- An unterior intent crime requires mens rea in relation to a consequence which goes beyond the actus reus.
- Intention which does not relate to the consequence required for the actus reus of the offence (but relates to something beyond it)
Example: Normally not an offence to enter a building as a trespasser but a person who does so with intent to steal is guilty of burglary. It is irrelevant if he is arrested immediately and so never steals anything as the actus reus of burgulary is complete when D enters.
Categories of Mens Rea
- Intention
- Recklessness
- Negligence
- Motive
What is Recklessness?
Types of recklessness:
- Inadvertent recklessness
- advertent recklessness
- Consciously taking a risk of causing an actus reus
- The taking of an unreasonable rick which D is aware of
- In many crimes: intention to cause a crime and recklessness on whether it is caused/occurs is grounds for liability.
- A person may not intent to cause a harmful result but takes the unjustifiable risk of causing it - this is recklessness (as in Woollin)
- The accused must proceed to act not caring whether or not the result he foresaw occurs (flows from his actions).
- It is not foresight alone that constitutes recklessness but a combination of foresight and of the result and a dismissive attitude.
- TO JUSTIFY FORESIGHT IN CASES D MUST HAVE TAKEN AN UNJUSTIFIABLE RISK
- If you are not aware of the risks that means you are not reckless.
- the state of mind requires thoughts and awareness
INADVERTENT RECKLESSNESS:
the risk taken must be proven to both obvious and serious
D has not given any thought of the possibility of there being a risk
ADVERTENT RECKLESSNESS
the risk taken must be proven to both obvious and serious
D is aware of the risk involved and takes it anyway
RECKLESSNESS TESTS:
Subjective Test
Cunningham: the risk of a particular harm being done need not be foreseen as obvious nor signified- only foreseen as possible by D
(It must be proven that D was aware of the existence of the unjustifiable risk
(it does not matter if he hopes the risk will not occur, or obvious or significant, the risk just needs to be foreseen))
PROMINENT CASE
Cunningham
D tore a gas meter from the wall of an unoccupied house to steal money in it. He left the gas which seeped into a nearby house endangering
the life of (P/V). D was convicted of maliciously administering a noxious thing as to endanger life. D appealed
Principle:
The court held that ‘malice’ suggests foresight of the consequence. D therefore has foresight that harm can be done but takes the risk anyway.
It is not limited to ill-will towards the person injured but only necessary that one intended to cause harm or foresaw that the harm might be done.
THEREFORE:
Cunningham was not guilty unless he foresaw the harm that could occur when he broke off the gas meter or left the gas gushing out.
RECKLESSNESS TESTS:
Objective Test
Caldwell/Lawrence:
- D is aware of the unreasonable risk and takes it
- If D fails to think of the possibility of the existence of an OBVIOUS risk
therefore what is justifiable is judged by the standard of the ordinary and prudent individual (i.e. the man in the jury box)
