Mens Rea Intention and Recklessness

Question 1

Why will a genuine accident not be punished in the criminal courts?

Answer 1

The D is not to blame for the result of his actions

Question 2

What should mens rea not be confused with?

Answer 2

Motive
Motive - explains why a D did something
Mens rea - state of mind when they did something
NORMALLY JUDGED SUBJECTIVELY (influenced by own opinion not looking at the reasonable man)

Question 3

What are the different levels of mens rea?

Answer 3

Intention, recklessness and gross negligence (look at GN in manslaughter)

Question 4

What is recklessness?

Answer 4

Lower level of mens rea than intention - prosecution must prove D took an unjustifiable risk knowing that a prohibited result may occur

Question 5

When was the first use of subjective recklessness?

Answer 5

R v Cunningham 1957 - pulled a gas meter off a wall where money contained, gas seeped next door and made mother in law very ill, convicted of offence MALICIOUSLY ADMINISTERING A NOXIOUS THING SO AS TO ENDANGER LIFE - court of appeal held malicious could mean intentionally or recklessly

Question 6

When was an objective test for recklessness bought in?

Answer 6

Caldwell 1981 - D could be seen as reckless if he did an act creating an obvious risk even if D was not aware of risk - OVERULED IN R V G AND ANOTHER 2003 - 11 ans 12 year old boy fire outside co-op

Question 7

Why was the Caldwell test overruled? What were the problems?

Answer 7

Confusion
Possibly unnecessary - Elliot v C 1983 - 14 year old girl with limited capacity hid in neighbours shed, was cold, lit a fire, £3000 damage
LORD STEYN “in Caldwell the law took a wrong turn”

Question 8

What did the HOL say when they overruled the Caldwell test in recklessness?

Answer 8

ALWAYS SUBJECTIVE
A person acts recklessly in respect to;
circumstance where he is aware a risk exists or could exist
A result where he is aware a risk could occur and in the circumstances to him unreasonable to take the risk

Question 9

Where was the new definition of recklessness provided?

Answer 9

Law Commissions Draft Criminal Code 1989

Question 10

What must the prosecution prove in recklessness?

Answer 10

The D realised the risk and decided to take it anyway

Question 11

What did the case Shimmen 1986 say about the problems with foreseeing a risk with the Caldwell test?

Answer 11

If a D thought there could be a risk, but concluded there was not one and then damage happens they can still be convicted
Korean man with self defence aimed kick at shop window to prove his professionalism but hits it

Question 12

What is the definition of intention?

Answer 12

THERE IS NO ACTUAL DEFINTION

Question 13

What is the test for intention always?

Answer 13

Subjective - Criminal Justice Act 1967 makes this clear ‘should not be bound by law… but shall decide whether he DID intend that result by reference to all evidence’

Question 14

What are the 2 meanings of intention?

Answer 14

Direct - defendant sets out to achieve particular result

Oblique/indirect - defendant may try to argue they meant to do something else rather than what happened

Question 15

What is the main problem with intention?

Answer 15

Courts have most difficulty in this area and the law is still to some extent unsettled and uncertain

Question 16

How do we go about intention without a definition?

Answer 16

Guidelines have been developed focusing on relationship between D’s foresight or consequences and the outcome LEADING CASE R v Woolin 1998

Question 17

What were the cases that bought about the development of the subjective test in oblique intent?

Answer 17

HYAM 1972 - HIGHLY LIKELY
Newspaper through lovers door who was going on holiday with another woman, 2 kids killed
MOLONEY 1985 - NATURAL CONSEQUENCES
D and stepfather been drinking, competition to see who could load gun fastest, stepfather killed
HANCOCK AND SHANKLAND 1986 - HIGHLY PROBABLE
Miners strike, threw concrete block off bridge, hit taxi and driver killed
NEDRICK 1986 - VIRTUAL CERTAINTY
Paraffin through door of house of person she argued with, child was killed
WOOLIN 1998 - INFER TO FIND
Threw 3 month old baby across room and died after getting annoyed that he was choking on food

Question 18

What was the issue with the standard set in Hyam?

Answer 18

Confused with recklessness as so broad - something could be a natural consequence without it being likely (Moloney) LORD BRIDGE

Question 19

What was the issue with the standard set in Moloney?

Answer 19

No reference to probability - the fact it could be 1 in a million that death would result of D’s actions might still mean it was a natural consequence but not something the D intended
THE FORESIGHT OF CONSEQUENCES DOES NOT MEAN A D INTENDED THIS

Question 20

When did the HOL confirm the Nedrick guidelines?

Answer 20

Woolin 1998 after COA got the ruling wrong, HOL used the virtual certainty test

Question 21

What did the COA say in Woolin that later linked to the case Matthews and Alleyne 2003?

Answer 21

‘If the D realised for all practical purposes that death or serious injury was inevitable the jury are almost bound to judge this as the D intended the consequence’
Case - 18 year old boy thrown off bridge into river even after telling attackers he couldn’t swim IT WAS IMPOSSIBLE TO SEE HOW HE WOULDN’T DROWN

Question 22

What are the problems with intention? (5)

Answer 22

No statutory guidelines
Impossible to get into D’s head at that time - subjective
Should be clearer on difference between intention and subjective recklessness
Difficult to produce intention test for ALL
Not entirely sure if Nedrick/Woolin guidelines apply to other crimes other than murder

Question 23

What did the Law Commission say about the reform of intention?

Answer 23

Law Commission Consultation Paper 2005 wanted to put all criminal law together - never worked
A person acts intentionally;
In order to bring his acts about
Knowing there is a virtual certainty it will occur

Question 24

What did the Law Commission think about a statutory definition for intention?

Answer 24

It should simply codify the law and continue to leave discretion to the jury

Question 25

What is the American comparison to our intention system?

Answer 25

American Model Criminal Code - ‘practically certain’

Similar standard/approach in other legal systems is a strength of our own