Mens Rea (State of Mind)

Question 1

What are crimes of ‘specific’ intent?

Answer 1

When the offender has a specific intention to bring about the desired consequences, e.g murder (only one outcome).

The intention of the offender is critical—without that intent, the offence does not exist.

Question 2

What are crimes of ‘basic’ intent?

Answer 2

• Where there is a basic intent to bring about a general set of circumstances, but the outcome is not specific e.g GBH (s20).
• Recklessness will often be enough to satisfy the mental element.

For example, the offence of Burglary (9(1)(b)), the person only needs to enter the building and commit one of the said acts (burglary or GBH) so the outcome is not specific.

Question 3

What are the two ways a jury may be able to infer intent?

Answer 3

• Case Law, e.g the fact that the foresight of a probability of a consequence does not amount to an intention to bring the consequence about, but may be evidence of it.
• s8 of the Criminal Justice Act 1967, did they intend or foresee that result by reference to all the evidence?

Question 4

What is the body of case law which has developed around the area of ‘probability’?

What was settled from these cases?

Answer 4

Two cases in the House of Lords (R v Moloney [1985] AC 905 and R v Hancock [1986] AC 455).
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The probability of a consequence does not amount to an intention to bring that consequence about, but may be evidence of it.

Question 5

You cannot claim that a defendant intended a consequence of his/her behaviour simply because it was virtually certain to occur.

What you can do is to put evidence of the defendant’s foresight of that probability before a court, which may infer an intention from it. Such an argument would go like this:

Answer 5

• FORESIGHT: what did he/she see?
• PROBABILITY: what was likely to happen?
• CONSEQUENCE: as a result of the action.
• At the time of the criminal act there was a probability of a consequence;
• The greater the probability of a consequence, the more likely it is that the defendant foresaw that consequence;
• If the defendant foresaw that consequence, the more likely it is that the defendant intended it to happen.

Question 6

What is intent?

What is recklessness?

Answer 6

If you intend to do something then you want it to happen and set out to see that it does; it is your purpose.

Acting without caution or that the person is aware that a risk exists but knowing that risk it present, still proceeds with the act.

Question 7

In what case did recklessness based on an objective decision change to that of a subjective decision?

Answer 7

• Two children (11 and 12).
• Set fire to some newspapers and walked away.
• The fire spreads and causes over one million pounds worth of damage.
• They were convicted on the old basis of ‘objective recklessness) in that, it should have been obvious to a bystander what would happen.
• The conviction was quashed because a reasonable bystander may well have foreseen the risk but the children did not.
• EVERY CASE MUST BE LOOKED AT ON A CASE BY CASE BASIS.

Question 8

The House of Lords held that a person acts recklessly with respect to:

Answer 8

• a circumstance when he/she is aware of a risk that it exists or will exist;
• a result when he/she is aware of the risk that it will occur;

and it is, in the circumstances known to him/her, unreasonable to take that risk.

Question 9

Awareness

What is this concerned with?

Answer 9

What was going on in the mind of the defendant—were they aware of the risk?

Question 10

Reasonableness

What is this concerned with?

Answer 10

The risk a defendant is aware of may be small but that does not automatically mean that it is reasonable to take that risk.

Each situation will be decided on its own merits but whether the risk is reasonable or not will be decided by the court—not the defendant.

Question 11

Malice

What is this concerned with?

Answer 11

It should not be considered as one relating to ill will, spite or wickedness.

‘Malice’ requires either the actual intention to cause the relevant harm or at least foresight of the risk of causing some harm (though not the extent of the harm) to a person.

Question 12

Example of how malice can still amount to serious crimes regardless of what was intended/ foresaw?

Answer 12

D throws a coin at V thinking that this will result in a small cut to V’s forehead (so D has foresight that some harm, albeit minor, will befall V as a result of D’s actions). The coin actually strikes V in the eye, causing V serious injury and the loss of sight in the eye.

It does not matter that the harm that D foresaw was minor compared to the resultant harm caused to V. D has committed a s. 20 grievous bodily harm offence because D has behaved ‘maliciously’—D saw the risk of some harm befalling V but went on to take the risk anyway.

Question 13

Wilfully

What is this concerned with?

Answer 13

To have acted intentionally or recklessly.

Question 14

Dishonestly

What is this concerned with?

Answer 14

Key to theft offences.

Critical in dealing with offences requiring proof of dishonesty (such as theft or fraud), that you identify the nature of the state of mind required and the ways in which it can be proved/disproved.

Question 15

Knowing

What is this concerned with?

Answer 15

To be ‘virtually certain’ about something.

The term ‘knowing’ is relevant to several offences such as s. 22 of the Theft Act 1968 (handling stolen goods).

One knows something if one is absolutely sure that it is so. Since it is difficult to be absolutely sure of anything, it has to be accepted that a person who feels ‘virtually certain’ about something can equally be regarded as ‘knowing’ it (R v Dunne (1998) 162 JP 399).

Question 16

Belief

What is this concerned with?

Answer 16

The degree of certainty someone has about something (whether right or wrong).

Question 17

Negligence

What is this concerned with?

Answer 17

The conduct of someone that falls short of what a reasonable person would d to protect another person from the foreseeable risks of harm.

Failing to act in a way that is expected. Actions which denote ‘fault’ or ‘blame’, e.g manslaughter by gross negligence.

Question 18

Strict Liability

What is this concerned with?

Answer 18

An offence proven by the act itself. it is not required to prove men’s rea, only that the criminal act occurred. Prevalent in road traffic offence.

For example, in DPP v H [1997] 1 WLR 1406 it was stated that the offence of driving with excess alcohol, contrary to the Road Traffic Act 1988, s. 5 did not require proof of any mens

Question 19

Transferred Mens Rea

What is this concerned with?

Answer 19

The state of mind required for one offence can, on occasions, be ‘transferred’ from the original target or victim to another. This only operates if the crime remains the same.

In other words, a defendant cannot be convicted if he/she acted with the mens rea for one offence but commits the actus reus of another offence.

Question 20

Example of Transferred Mens Rea

Answer 20

In R v Latimer (1886) 17 QBD 359 the defendant lashed out with his belt at one person but missed, striking a third party instead. As it was proved that the defendant had the required mens rea when he swung the belt, the court held that the same mens rea could support a charge of wounding against any other victim injured by the same act.

If the nature of the offence changes, then this approach will not operate. Therefore if a defendant is shown to have thrown a rock at a crowd of people intending to injure one of them, the mens rea required for that offence cannot be ‘transferred’ to an offence of criminal damage if the rock misses that person and breaks a window instead (R v Pembliton (1874) LR 2 CCR 119).

INTENT IS ONLY TRANSFERABLE WHEN THE NATURE OF OFFENCES ARE SIMILAR.

Question 21

What actually is ‘mens rea’?

Answer 21

The state of mind that accompanies some offences.

Thinking about committing an offence alone is not an offence.

Question 22

Foresight looks into whether or not the defendant should have foreseen what was going to happen when they committed an offence, e.g forcing someone out of their car to steal it, for them to run into traffic and die.

But who’s job is it to ascertain whether a defendant intended a particular consequence?

Answer 22

This is a matter entirely for a jury or magistrate so don’t get caught up in it.

Question 23

Malice may be defined as undertaking action with bad intentions.

Can you have ‘Malice’ linked to recklessness?

Answer 23

• Yes you can.
• e.g Intending to cause someone mild injury and it is worse than intended. Choosing to take risks despite foreseeing this could happen.

Question 24

Intent is usually adduced through clear evidence, such as an admission of their intention ‘I shot the victim in the head as I intended to kill them’. However, where is doubt that the defendant may not have wanted the consequence but may have foreseen it, two things need to be considered?

What are these two things?

Answer 24

1. Section 8 of the Criminal Justice Act 1967 - the court must decide whether the accused intended or could foresee the conclusion.
2. Case Law - specifically r v Moloney (1985) that the jury could consider that the accused intended a consequence if they foresaw it as a natural consequence of their actions.

Question 25

Question: In relation to the offence of murder, when talking about a jury deciding whether or not the required specific intention, describe what the jury may do?

Answer 25

Where the defendant’s actions would suggest a virtual certainty of death or serious injury coupled with a defendant appreciating that, the jury may infer that the defendant intended to bring about that consequence.

R v Nedrick 1986 talks about a situation where this applied and the view from that case explains that where the defendant’s actions would suggest a virtual certainty of death or serious injury coupled with a defendant appreciating that, the jury may not simply infer that the defendant intended to bring about that consequence

Question 26

Describe what recklessness is?

Answer 26

Recklessness is subjective, so a person is reckless if in respect to a situation in which they are aware that the risk exists or would exist, or an outcome that they are aware is likely to occur, and in the circumstances as known to them it was unreasonable to take the risk

Question 27

Considering mens rea and intent, can intent be formed whilst a person committing the crime is doing so under duress?

Answer 27

Yes – Intention can still be formed regardless of external factors including duress

Question 28

Thomas has spent his life bullying William. Thomas sees William walking home one day from work and to impress his friends, picks up a pebble and throws it hard towards William. Thomas is aware that the pebble will hurt William when it hits him likely resulting in a slight cut or bruising. In fact the pebble goes straight into Williams right eye and blinds him permanently.

Considering the concept of being ‘malice’ what offence did he commit?

Answer 28

Thomas has committed a s.20 GBH on William as he knew some harm would occur to William but did it anyway.

The concept of ‘malice’ becomes extremely relevant when looking at assault offences. Firstly, the ‘malice’ comes in relation to the fact that Thomas intended to cause harm to William. Don’t worry about the level of harm at this stage, only that he had the intention to hurt him or that he had the foresight that some harm would be caused. The reason he has committed a s.20 is that he saw that harm would befall William but did the action yesterday, the fact he didn’t expect him to lose an eye is irrelevant (mitigation at best), he did the action and caused the injury.

Question 29

In relation to the common law offence of murder, which of the following correctly describes the required mens rea?

Answer 29

To kill or commit GBH.

Question 30

Gary is having a difficult time with his new baby and throws the baby onto the floor in a fit of rage. The baby is killed instantly. It was not Gary’s intention to kill the child.

In these circumstances is Gary liable for the common law offence of murder?

Answer 30

Yes, in these circumstances he has committed murder.

R v NEDRICK 1986 tells us that because at the time there was a probability of the consequence, i.e. death, the greater the consequence the more likely it is the defendant foresaw the consequence, and therefore the higher the chance he intended it to happen. In other words, the outcome was a virtual certainty.

The jury may infer intention in this situation. In cases of murder such as this the jury inferred and were directed regardless by the judge.

Question 31

Considering criminal intent, in a situation where a burglar breaks into a house in which the occupant as a result of being confronted by the burglar has a heart attack and dies, which of the following statements best describes the ruling in R v Moloney 1985, which talks about the foresight and probability aspects of this type of situation?

Answer 31

Foresight of the probability of a consequence, does not amount to an intention to bring about the consequence but may be evidence of it.

Question 32

John is asleep in a pub toilet when the landlord closes the pub. The landlord did not check the toilets. John wakes up at 3am and wanders out into the main pub area. Confused, he decides to pour himself a drink from behind the bar, as he does he hears a noise in the back office, he picks up his glass ready to use as a weapon. As he enters the back office he is surprised by a squirrel. In his panic John slashes out at the squirrel with his glass and kills it. At that point John sees an open window and escapes.

Has John committed an offence?

Answer 32

John forms the mens rea for an aggravated burglary when he entered the office.

At the point of entering the office John has formed the intention of using a glass to assault someone. He is entering a building or part of a building with a weapon of offence (everyday item intended to be used as a weapon suffices) with the intention of committing GBH.

Question 33

In relation to Section 1 Theft Act 1968, what is the mens rea aspect of theft?

Answer 33

The intention to permanently deprive, dishonestly.

Question 34

What is s8 of the Criminal Justice Act 1967?

Answer 34

Legislation the references the proof of criminal intent, it says…

A court or jury, in determining whether a person has committed an offence,—

(a) Shall not be bound in law to infer that he intended or foresaw a result of his actions by reason only of its being a natural and probable consequence of those actions; but
(b) Shall decide whether he did intend or foresee that result by reference to all the evidence, drawing such inferences from the evidence as appear proper in the circumstances.

Question 35

Case Study: Builder doesn’t create chute down to skip when removing tiles from roof. Believes he’s accurate enough to throw directly into skip, but realises there is a slight chance that the flying debris could injure someone. He throws his first tile and it hits CASSWELL on the shoulder and breaks her collarbone.

In these circumstances, BAREHAM would be considered ‘reckless’ and could be convicted of an s20 assault. This is because the term ‘recklessness’ in assaults means ‘subjective recklessness’.

Do you agree with this statement?

Answer 35

Yes- recklessness is subjective, if the defendant did not see the risk then it would not have applied.