State of Mind

Question 1

2 key elements of offences

Answer 1

actus reus (the guilty act) and mens rea (the state of mind)

Question 2

Actus reus

Answer 2

physical act or omission of a crime n.b. liability will only arise from an omission to act if there is a breach of duty of care

Question 3

Mens rea

Answer 3

guilty state of mind of a crime

Question 4

Both elements must be present

Answer 4

As a general rule - the actus reus must be accompanied by the guilty mind (mens rea). There must be a coincidence of the actus reus and mens rea

Question 5

Coincidence

Answer 5

Actus reus + Mens rea = offence

Question 6

Do both elements of the offence need to be constant?

Answer 6

Only need a coincidence at some point

No - provided at some point during the commission of the offence the two factors coincide - the offence will be complete.

Question 7

Subsequent withdrawal of mens rea

Answer 7

Change of mind

Still guilty

If, after committing the actus reus with the necessary mens rea, the person changes their mind - they will still be guilty even if they take steps to remedy their actions

R v Jakeman (1983)

Question 8

Continuing Acts

Answer 8

Change of circumstances

Can the mens rea catch up with the actus reus to provide the necessary coincidence? Yes.

If the actus reus is a continuing act.

Question 9

Continuing act - penetration during sexual intercourse

Answer 9

Withdrawal of consent

Kaitamaki v The Queen (1985)

Ongoing actus reus - penetration

Mens rea later formed - aware consent withdrawn

Question 10

Continuing act - Laying of unlawfull force

Answer 10

Fagin v MPC

Ongoing actus reus - car wheel laying unlawful force

Mens rea - later formed (aware laying force and decided not to move vehicle)

Question 11

Strict liability offences - exception

Answer 11

No coincidence required

There is no mens rea requirement to accompany the actus reus.

All that is required is proof of the actus reus.

Question 12

Strict liability offences - presumption

Answer 12

There is a presumption that mens rea is required for all offences unless legislation indicates otherwise

B (A Minor) v DPP (2000)

Question 13

2 key forms of mens rea that crop up in the vast majority of offences are

Answer 13

Intent; and Recklessness.

Question 14

additional forms of mens rea

Answer 14

• Malice;
• Dishonestly;
• Wilfully;
• Knowing;
• Belief; and
• Negligence

Question 15

3 categories of intent offences

Answer 15

• Specific intent;
• Ulterior intent; and
• Basic intent.

Question 16

Specific intent offences

Answer 16

At the time of committing the actus reus - the defendant has the specific intention to bring about specific result

Example - Murder

The intention to either kill or cause GBH

Question 17

Ulterior intent offences

Answer 17

> An initial intention to carry out the actus reus of the offence

> A further intention to cuase a consequence prohibited by the offence

Example: Burglary Section 9(1)(a)

It is necessary to show both:

> The intention to enter the building as a trespasser

> With the additional ulterior intent to either inflict GBH, cause damage or steal

Question 18

Basic intent offences

Answer 18

These offences require nothing further than the basic intention to bring about a set of circumstances.

So whilst it is necessary to prove an intention to carry out the actus reus of the offence it is not necessary to prove that the person also intended any further prohibited consequence

Example: Burglary Section 9(1)(b)

It is only necessary to show that:

> A person intentionally entered a building or part of a building as a trespasser

> They went on to commit one of the following prohibited consequences with the requisite intent: steal or attempt to steal or inflict or attempt to inflict GBH

Question 19

SPECIFIC INTENT - RECAP POINTS

Answer 19

At the time of committing the actus reus the defendant has the specific intention to bring about a specific result - e.g. - kill or cause GBH for murder.

Question 20

ULTERIOR INTENT - RECAP POINTS

Answer 20

INTENTION 1

An initial intention to carry out the actus reus of the offence…

INTENTION 2

Plus a further intention to cause a consequence prohibited by the offence.

For example - burglary under section 9(1)(a) Theft Act 1968.

Question 21

BASIC INTENT - RECAP POINTS

Answer 21

An offence of basic intent requires nothing further than the basic intention to bring about a set of circumstances.

Whilst it is necessary to prove an intention to carry out the actus reus of the offence - it is not necessary to prove that the person also intended any further prohibited consequence.

For example - burglary under section 9(1)(b) Theft Act 1968.

Question 22

OPERATION OF THE TEST TO PROVE INTENT

Answer 22

The combined effect of the legislation and the case law is that:

• Just because a consequence is highly probable or virtually certain to occur it does not necessarily mean that a person intended the consequence to arise.
• Evidence of the defendant’s foresight can be put before the court and the court may then infer the presence of the defendant’s intention from it.

The prosecution will:

• Indicate the probability of the consequence arising from an act;
• Argue that the higher the probability of the consequence, the more likely the defendant foresaw the consequence; and
• If they foresaw the consequence it is likely that they intended it to happen.

Question 23

S8 - Criminal Justice Act 1967

Answer 23

A court or jury in determining whether a person possessed the requisite intent:

> Shall not be bound in law to infer that they intended or foresaw a result of their actions by reason of it being a natural and probable consequence of their actions

> Shall decide whether they did intent or foresee the result by reference to all the evidence - drawing such inferences from the evidence as appear proper in the circumstances

Question 24

Foresight does not equal intent

Answer 24

Foresight of the probability of a consequence, does not amount to the intention to bring about the consequence - but may be used as evidence to prove the intention to bring about the consequence

R v Moloney (1985)

Question 25

Combined Effect

Answer 25

Just because a consequence is virtually certain to occur - it does not, of itself, prove that the defendant’s intent to cause the consequence. Evidence of the defendant’s foresight can be put before the court to infer the presence of the defendant’s intention from it

Question 26

The argument that will be presented by the prosecution

Answer 26

1. The prosecution will indicate the probability of the consequence arising from an act (i.e. was it virtually certain to occur?)
2. The prosecution will argue that the higher the probability of the consequence - the more likely the defendant foresaw the consequence
3. The prosecution will argue that if they foresaw the consequence - the more likely that they intended it to happen

Question 27

The decision whether to infer intent

Answer 27

Question of fact: decision whether to infer intent, will then be a question of fact - that will be left to the jury or magistrates to determine

Caselaw: if a consequence is virtually certain to flow from an action and the defendant appreciated (i.e. understood) that this was the case - then a jury can infer intent.

R v Nedrick (1986)

Consequence a virtual certainty + Appreciated (understood) by defendant = infer intent

Question 28

Subject test

Answer 28

The test is subjective in nature

You need to focus on what is going on in the defendant’s head

R v G and R (2003)

It is NOT an objective reasonable person test.

Question 29

Subjective Recklessness Test - 3 Steps (R v Cunningham 1957)

Answer 29

1. Subjective awareness of a risk

A person foresees the risk of a consequence arising from their actions. i.e. they are subjectively aware of the risk. It is not adequate to show that the defendant ought to have foreseen the consequences of their actions - as this is NOT an objective reasonable person test.

Youths lite fire under a bin - expecting the fire to burn out. The fire caused £1 million damage. The children did not subjectively foresee the risk that was posed by leaving the fire to burn itself out - criminal damage conviction quashed. (R v G&R (2003))

2. Taking the risk

They go on to take the risk.

3. Unreasonable to have taken the risk

In all the circumstance it was reasonable for them to have taken the risk.

The court will determine whether or not the risk taken was unreasonable in the circumstances.

Question 30

APPLYING THE RECKLESSNESS TEST

Answer 30

SCENARIO

A commits an act which causes B harm.
A did not foresee the risk of harm - as the risk did not occur to A before acting.
The risk of harm would however have been obvious to a reasonable person.
Has A behaved recklessly under the current subjective recklessness test?

ANSWER
No - A has not behaved recklessly under the current subjective recklessness test.

The subjective test requires the following 3 steps to be satisfied:
* A (subjectively) foresees the risk of a consequence from their actions - (i.e. A personally recognised that there was a risk);
* A goes on to take the risk; and
* In all the circumstances it was unreasonable for A to have taken the risk.

In the scenario A did not subjectively foresee the risk of harm - so A has not behaved recklessly.

Question 31

TRANSFERRED MENS REA - principle

Answer 31

Mens rea for an offence can be transferred from an original intended victim to another person - who instead inadvertently suffers harm as a result of the commission for the actus reus

Question 32

Sample principle

Answer 32

Belt swung instead of a punch

R v Latimer (1886)

Question 33

Transferred mens rea - golden rule

Answer 33

Transferred mens rea only works when the actus reus and mens rea relate to the same offence

Question 34

When will transferred mens rea not apply?

Answer 34

When the actus reus of the offence committed against the unintended victim differs from that which was directed towards the intended victim

R v Pembleton (1874)

Question 35

Incitement and transferred mens rea

Answer 35

Test

If the intentions of a principal are to be extended to an accessory - it must be established that the accessory’s intention was either contemplated and accepted by the principal or transferred. `

Question 36

TRANSFERRED MENS REA - FURTHER GUIDANCE

Answer 36

SITUATIONS WHERE TRANSFERRED MENS REA WILL BE RELEVANT

Transferred mens rea issues will apply when an individual directs their mens rea onto A, but inadvertently causes harm to another person or object - B.

THE NEED FOR A COINCIDENCE OF ACTUS REUS AND MENS REA

We know that both elements of a crime must be present for an offence to be complete - i.e. there must be a coincidence of both actus reus and mens rea.

KEY ISSUE TO ADDRESS

The question in such circumstances is whether the mens rea directed towards the intended victim - A can be shifted onto the unintended recipient of the actus reus - B to create the coincidence of actus reus and mens rea?

ESTABLISH WHETHER THE ACTUS REUS AND MENS REA RELATE TO THE SAME OFFENCE

Ask yourself whether the actus reus of the crime inflicted on the unintended victim is the same offence as the mens rea that was directed to the intended victim.

• If the answer is yes - transferred mens rea will apply and the offence will be complete.
• If the answer is no - transferred mens rea will not apply - i.e. as only half of the offence is present - no offence will be committed.

Question 37

TRANSFERRED MENS REA - RECAP QUESTION 1

Answer 37

SCENARIO

A intends to punch B and cause B really serious harm.
A throws the punch and B ducks.
A’s punch smashes a glass window behind B.

Will A be guilty of the offence of assault or criminal damage?

ANSWER
No - neither offence.

The principles of transferred mens rea do not apply if the actus reus of the offence committed against the unintended victim differs from that which was directed towards the intended victim – R v Pembliton.

Question 38

TRANSFERRED MENS REA - RECAP QUESTION 2

Answer 38

SCENARIO

A intends to punch B and cause B really serious harm.
A throws the punch and B ducks.
A’s punch lands on C who was standing behind B – breaking C’s jaw.

Will A be guilty of the offence of GBH?

ANSWER
Yes - A’s intention to cause B to suffer really serious harm at the time of throwing the punch will be transferred to C - resulting in a guilty GBH verdict

This is because the actus reus suffered by C and the mens rea directed towards B relate to the same crime.

Question 39

Offences that use the term maliciously

Answer 39

Section 18 OAPA 1861 - GBH
Section 20 OAPA 1861 - Malicious wounding
Section 23 & 34 OAPA 1861 - Poisoning

Question 40

Malice

Answer 40

Intention to cause harm or foresight of the risk of causing some harm

Question 41

Is foresight of the extent of harm required?

Answer 41

No.

Only need to foresee the risk of causing some harm.

Question 42

Knowing

Answer 42

Absolutely sure of a fact or virtually certain of a fact.

R v Dunne (1998)

Question 43

Belief

Answer 43

Absolutely sure of a fact or virtually certain of a fact and a belief can still be established even if the person is actually mistaken as to the accuracy of the fact in question

Question 44

Negligence

Answer 44

A person will have acted negligently - if their actions fell below the standard that could be expected of a reasonable person