Mens Rea (MR) Flashcards
subjective
what the D saw/perceived, exception is negligence
objective
reasonable person test.
types of MR
intention, recklessness, knowledge, belief, negligence, dishonesty.
Moloney case
intention is distinct from motive or desire
ulterior MR
conduct, circumstance, or result not required.
normal liability
MR requirements with respect to each AR element
strict liability
one or more AR element does not require MR
absolute liability
no MR at all - conduct must be voluntary
wilful blindness
will to be taken knowledge; someone has the foreseeability to see something is going to happen.
knowledge
D has if he/she believes the case and is correct in that belief; subjective and objective
belief
that a circumstance exists, no objective second requirement requiring the D to believe.
dishonesty
- subjective - D’s actual knowledge or belief as to the facts
- objective - given this, would ordinary decent people find D’s conduct dishonest?
negligence
holding D to an objective standard of conduct, breaches of duty, gross negligence.
types of intention
direct and oblique
direct intention
person acts with the objective of bringing about a certain consequence
oblique intention
doesn’t involve a person’s aim/purpose and doesn’t involve a desire to do the act, a person intends an AR requirement where the guilty act is certain to arise and D recognises this, jury finds.
intention established (Case)
Woollin
Hyam v DPP
flaming newspaper through letterbox, foresight of high probability, caused a house fire, intention was to scare but killed their children, held enough to be foresight of probability.
r v Moloney
D shot stepfather, good terms, they were drinking and playing a game with the guns when shot the V, found guilty but HoL quashed conviction, incorrect direction to the jury couldn’t amount to intention.
r v Hancock
miners hit a car with a concrete block aiming for the strikers to scare them, killed V, convicted for murder using Moloney, quashed as foresight of natural consequence could go far beyond something certain/virtually certain to happen.
r v Nedrick
D put paraffin through letterbox, killed a child, convicted of murder, quashed this as the death/serious bodily harm had to be a certainty and the D had to appreciate it.
r v woollin
D lost temper when baby was choking, shook and threw the baby across the room in anger, V died, accepted that in throwing the baby there was a serious risk of injury, HoL quashed murder conviction, manslaughter instead, trial judge misdirected by saying substantial risk.
3 parts to the test
objective, subjective and jury
objective part
the outcome/circumstance was virtually certain.
subjective part
D had subjective foresight that the outcome/circumstacne was virtually certain, irrelevant what a reasonable person would do.
jury part
entitled to find intention if the objective and subjective parts are satisfied, not obliged to find intention.
recklessness
taking of an unjustified or unreasonable risk, foresee a risk of the consequences of your actions, less culpable form of MR than intention as it involves foresight of possible/probable consequences.
recklessness perspective - subjectively
from the D’s own knowledge and foresight
reckless perspectives - objectively
using the standards of reasonable awareness and conduct.
r v Cunningham
D broke gas meter, cracked a gas pipe which leaked into house next door who inhaled it, D convicted of endangering life. CoA found it to be a misdirection, said maliciously meant recklessly, applied SUBJECTIVE - must have foreseen the harm that may occur but done it anyway.
r v Stephenson
D lit a fire to stay warm, it spread and caused a lot of damage, charged with arson, defence was schizo, appeal was quashed and held misdirection as it had to be done subjectively from the point of the accused person - not objectively as to reasonable person test.
r v caldwell
introduced objective recklessness, D started a fire in hotel room, tried for arson, argument was he was too drunk, appeal stated he should have known and the lack of thought dint relieve him of guilt, objective recklessness was no defence for those with a lack of maturity and intellect.
r v Lawrence
risk must be serious, death by reckless driving, applied caldwell, risk to be obvious and serious.
Elliot v c
child with learning difficulties burnt a shed down and caused damage to the property, reckless as to whether the property would be damaged, acquitted due to age and lack of understanding, Crown appealed, held that caldwell was objective and claimed it wasn’t reasonable, directed to conviction.
r v g and another
overturned caldwell, 2 D’s set fire to some newspapers they threw under a bin, caused damage to the shop, charged, quashed convictions and overruled caldwell and went back to Stevenson.
4 reasons for abolishing objective recklessness (r v g and another)
d needs actual mental state, only be liable is he knew about the intended risk, objective test is unfair, misinterpreted recklessness.
test for recklessness (r v g and another)
subjective foresight of a risk (of a required result/circumstance), unreasonable taking of that risk.
D must foresee the risk
r v Stephenson
degree of risk is irrelevant - r v Brady
fell off a balcony drunk and squashed someone causing serious injuries to that person, argument was that foresight must be of an obvious and serious risk, rejected idea as any degree of foresight is allowed.
how careful D considers the risk is irrelevant - r v Parker
D angry when using a public telephone and smashed the receiver damaging the phone, charged with criminal damage, recklessness was an issue, said he wasn’t aware of the risk but still should have appreciated it.
constructive liability
AR elements without MR elements but building upon a base offence.
ulterior MR
MR elements without AR elements within the offence.
transferred malice
D’s MR can transfer from one V to another - R v Latimer.
- can only transfer within offences of the same type and cannot transfer twice.
