Mens Rea: Recklessness Flashcards
What is necessary to establish recklessness in a general sense?
necessary to show D took an unjustifiable risk.
What is the classic test for recklessness? Where does it come from?
- D has foreseen that the PARTICULAR KIND of harm might be done and has carried out the act regardless.
- R v Cunningham [1957]
Explain the Cunningham test for recklessness
- D knows of the existence of the particular risk
- D has deliberately taken that risk despite knowing this.
- therefore a subjective test of what D believed at the time.
What must the prosecution prove to obtain a conviction of criminal damage based on recklessness? Under what authority?
1) at the time of committing the actus reus, the accused was SUBJECTIVELY aware of the risk
2) in the circumstances known to him it was OBJECTIVELY unreasonable for the accused to take that risk
3) from R v G and Another [2003]
Which recklessness test applies where?
- they are effectively the same test for recklessness but apply to different crimes
- R v G [2003] is relevant to criminal damage cases
- R v Cunningham [1957] applies in all other scenarios
What is the only example of negligence in common law?
Manslaughter
How can gross negligence be defined? From what authority?
- D showed such disregard for the life and afety of others as to amount to a crime against the state and conduct deserving punishment
- R v Bateman [1925]
What is ‘transferred malice’? Give the authority for transferred malice in regards to manslaughter
- where D tries to kill X, misses, and kills Y.
- where the mens rea against one party is transferred to an unintentional actus reus against another party
- D’s mens rea to kill X is transferred from the intended harm to the actual harm - the actus reus of killing Y
- R v Mitchell [1983]
What is the ‘continuing act’ theory and what gives it authority?
Where an actus reus is one continuing act, the mens rea can occur at any point during that time. Eg Fagan v Metropolitan Police Commissioner [1969] Fagan drove onto a policeman’s foot and then put the handbrake on.
What is the transaction principle? What gives it authority?
Where a court categorises the actions of the accused as a series of acts, making up one transaction. In certain circumstances it is enough for D to have the mens rea at some time during that transaction. From Thabo Meli v R [1954] where D thought he had killed the victim and then threw him off a cliff, where he later died of exposure.
How does the principle of causation work in terms of mens rea? Give an authority for it
- D knocks V unconcious, believes him to be dead, and then sets his house on fire
- when D sets the house on fire he has no intention to cause death
- but his earlier acts were done with the mens rea of murder and were the cause of death
- ie view the act done with mens rea as causing subsequent acts which lead to death. R v Masilela [1968]
What happens if a court isn’t sure which of D’s actions caused a death?
D must have the mens rea for the relevant crime when does each of the acts which could constitute the actus reus. An example can be seen in A G Ref (No 4 of 1980) [1981] where a man cuts and straggles a woman.
Is ignorance of the law a defence against liability?
ignorance is no defence, even if D’s ignorance is reasonable or it would be impossible for him to know about the prohibition in question
