Mens Rea - Lecture 3 PDF

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Summary

Mens Rea denotes fault or culpability, and it can be assessed subjectively (intention or recklessness) or objectively (negligence and recklessness (1981-2003 only)). Mens Rea translates as ‘guilty mind’, but it is better to think of it as the mental element of the crime. It is the state of mind that...

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Mens Rea 2012 Mens Rea denotes fault or culpability, and it can be assessed subjectively (intention or recklessness) or objectively (negligence and recklessness (1981-2003 only)). Mens Rea translates as ‘guilty mind’, but it is better to think of it as the mental element of the crime. It is the state of mind that is prohibited (expressly or impliedly) in the definition of the offence (i.e. if Mens Rea X is prohibited in the definition of the crime, and D was thinking X at the time of the Actus Reus, then D may be guilty).  The burden on proving the Mens Rea is the prosecution  Mens Rea does not exist in a vacuum. The Mens Rea of a crime is not ‘intention’ or ‘recklessness’, but intention to bring about some result, or recklessness about a consequence etc. (always associate Mens Rea with Actus Reus). Offences can be classified as follows: 1. Strict Liability offence 2. Offences requiring proof of Mens Rea 3. Offences satisfied by proof of negligence First question: Type of Crime? Specific Intent – Only direct intention is sufficient to prove the required state of mind (oblique intention can be used to find specific/direct intention) Basic Intent – Either direct intention or recklessness will suffice as the required state of mind Subjectivism and Objectivism: Subjectivism – Any Mens Rea which is assessed by the fact-finder according to what the D was thinking at the time of the Actus Reus. ‘Did D intend the result? Did D realise, recognise, want, or aim to achieve the result? Did D foresee the result? N.B express it from D’s point of view. It is NOT OK to say D should have thought about. Objectivism – One which assesses what D was thinking, but IN ADDITION, the fact-finder must consider what a reasonable person would have thought. ‘Should D have thought about the consequences of his acts? Would a reasonable person have thought about what might happen, and D is at fault for not thinking about it? N.B express it from the reasonable person’s point of view. It is OK to say should have thought about. INTENTION: Intention is widely regarded as the most important form of Mens Rea, and has been considered to be the most blameworthy state of mind although there have been much judicial dispute over the years about its meaning. Traditionally, intention has been split into two types; direct and indirect. Direct Intention – Where the D acts deliberately, wanting or desiring the outcome (Mohan 1975). Indirect Intention (Oblique Intention) – D foresees the result but does not necessarily desire it. Two issues have confronted the judiciary (i) Is how much foresight is needed before intention can be found? (ii) Is whether foresight is evidence of intention, or whether foresight of a virtual certainty is, in law, the same thing as intention?

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Criminal Law – Year 2!

Mens Rea 2012 DPP v Smith (1961) – D is presumed to intend or foresee the natural consequences of his actions.

S.8 Criminal Justice Act (1967) – Repealed the decision in Smith (above). The jury is not bound in law to infer intent or foresight, but is to draw inferences from the evidence.

Hyam (1975) – The Mens Rea for murder is satisfied if D knew death or serious harm was highly probably.

Moloney (1985) – Intent could be inferred where the D foresaw the consequence as a natural consequence of his act.

Hancock and Shankland (1986) – The greater the probability of a consequence the more likely it was that the consequence was foreseen and the greater the probability was that the consequence was also intended.

Nedrick (1986) – Introduced the ‘foresight of a virtual certainty’ test. ‘If the jury are satisfied that … the D recognised that death or serious harm would be virtually certain to result from his voluntary act, then that is a fact from which they may find it easy to infer that he intended to kill or do serious harm, even though he may not have had any desire to achieve that result’. There is evidence of intention to bring about the consequence.

Woollin (1999) CURRENT LAW– The jury is not entitled to find the necessary intention unless it feels sure that death or serious harm was a virtual certainty, and that the D appreciated such was the case.

 Oblique Intent + Evidence = Direct Intention R v Matthews and Alleyne (2003) – ‘The law has not yet reached a definition of intent in terms of appreciation of a virtual certainty’. Intention v Foresight IF the jury deliberates and finds that D did not foresee death or GBH as a virtual certainty THEN the jury cannot convict D of murder. IF the jury deliberates and finds that D did foresee death or GBH as a virtual certainty THEN if the test is one solely on ‘fact’ (oblique intention) then the jury can either convict or not.

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Mens Rea 2012 IF the jury deliberates and finds that D did foresee death or GBH as a virtual certainty THEN if the test is one of ‘law’ then the jury must convict. Intention v Motive What D wanted to do – Intention Why D wanted to do it – Motive The court is only concerned with intention and not motive – see Chandler v DPP (1964) RECKLESSNESS This is a lower level of Mens Rea than intention. Recklessness is about identifying a serious risk but carrying on regardless (taking an unjustifiable risk). The justifiability of the risk is assessed objectively i.e. would the reasonable man regard taking the risk as unjustifiable? If the risk was objectively justifiable, D is not reckless. If the risk was objectively unjustifiable, then the next step is to ask whether the recklessness is assessed subjectively or objectively. Subjective Recklessness: D is reckless if D is AWARE that there is a risk that the circumstance exists but goes ahead and deliberately runs that risk – R v Cunningham (1957) and R v Stephenson (1979). Objective Recklessness: D is reckless if D is UNAWARE that there is a risk because D has FAILED TO GIVE ANY THOUGHT to the risk when that risk is an OBVIOUS one – Caldwell (1981) but overruled in R v G (2003). Negligence: Negligence is a civil concept. If D’s conduct falls below that standard or a reasonable person, he is negligent. The criminal law bases liability for some crimes on negligent such as; driving without due care and gross negligent manslaughter (R v Bateman 1925). Negligence can sometimes provide a statutory defence (where proof is often reversed, so that D has to prove that he was not negligent).  Unreasonable Inadvertence – failing to give any though to the risk that a circumstance exists when a reasonable person would be aware of the risk.  Unreasonable Mistake – thinking about the risk that a circumstance exists but unreasonably concluding that it did not. Coincidence of Actus Reus and Mens Rea (contemporaneity rule): This means that the Mens Rea must occur at the same time as the Actus Reus. The prosecution must prove that the Actus Reus and Mens Rea have occurred at the same time in order for the D to be convicted. However … The following cases show that it does not matter if the Actus Reus and Mens Rea do not precisely coincide provided there is a continuing act.

Actus Reus prior to Mens Rea: Fagan v MPC (1968) – continuing act theory Miller (1983) – Mens Rea prior to Actus Reus: Thabo Meli (1954) – the transaction principle: series of acts making up one transaction; pre-planned Church (1965) – the transaction principle: no antecedent plan Le Brun (1991) – the transaction principle: no preconceived plan

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Mens Rea 2012 Transferred Malice: If D intends injuring one person but by accident injures another, the D will still be convicted of an offence as the law allows the Mens Rea to transfer to the Actus Reus against his unintended victim. R v Latimer (1886) and R v Mitchell (1983) R v Pembliton (1874) – Mens Rea of the intended offence must be the same as the Mens Rea of the actual offence. Defences: (to be covered later)

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Mens Rea 2012 Cases CASENOTE

Mohan (1975)

FACTS

D was driving his car and responded to a police officer's signal to stop. D slowed down but then accelerated towards the PC. The PC moved out of the way, D drove off. D was charged with attempt to cause bodily harm by wanton driving at a police constable. The jury were directed that the prosecution had to prove that D realised that such wanton driving would be likely to cause bodily harm.

DECISIONS

Not guilty. Intent is an essential ingredient of an attempt and is the only mens rea of attempts. Recklessness would often suffice as the mens rea for the full offence; attempt was a separate and often more serious offence with its own separate mens rea. ‘Intention is a decision to bring about, in so far as it lies within the accused power (the prohibited consequence) no matter whether the accused desired that consequence of his act or not’.

CASENOTE

DPP V Smith (1961)

FACTS

D trying to escape from the police in a car was signalled to stop. He did not do so. A PC jumped onto the car's bonnet. D drove at high speed, swerving from side to side, until the officer was thrown off and killed.

DECISIONS

Guilty of murder. It was clear that he had intended to cause grievous bodily harm, which meant no more and no less than really serious injury. Section 8 Criminal Justice Act 1967 now requires subjective approach. This case not followed in R v Hyam.

CASENOTE

Hyam (1975)

FACTS

In this case, the appellant (Hyam) had been having a relationship with a man. The man then had an affair with another girl, whom he planned to marry. Upon discovering this, the appellant drove to the girl's house and poured petrol through her letter box, which she then ignited. She then drove home and did not alert anyone of the incident. The girl and her young son managed to escape the fire but her two daughters were killed. When directing the jury, the trial judge said: "If you are satisfied that when the accused set fire to the house she knew that it was highly probable that this would cause (death or) serious bodily harm then the prosecution will have established the necessary intent."

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Mens Rea 2012 DECISIONS

From this, the jury convicted Hyam to murder. Her appeal to the Court of Appeal was dismissed. On appeal to the House of Lords, by a bare majority (3:2) the Lords also dismissed the appeal. In upholding Hyams conviction, the House found that her foresight or knowledge of what might happen was enough to draw the necessary inference of intention.

CASENOTE

Moloney (1985)

FACTS DECISIONS

CASENOTE

Hancock and Shankland (1986)

FACTS

The D dropped a lump of concrete from a bridge onto the road below to prevent a minor going to work. The taxi driver was killed.

DECISIONS

Manslaughter. They did not have specific intention to kill (indirect intention).

CASENOTE

Nedrick (1986)

FACTS

D poured paraffin through the letterbox of a house and set it alight, resulting in the death of a child.

DECISIONS

D was guilty of manslaughter, not murder.

CASENOTE

Woollin (1999)

FACTS

The appellant threw his 3 month old baby son on to a hard surface. The baby suffered a fractured skull and died.

DECISIONS

CASENOTE

R v Matthews and Alleyne (2003)

FACTS

The D’s threw the V from a bridge into a wide river. They knew he could not swim and left him doggie paddling, but they left before they saw him reach safety. He drowned.

DECISIONS

Convicted of murder.

CASENOTE

Chandler v DPP (1964)

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Mens Rea 2012 FACTS DECISIONS CASENOTE

R v Cunningham (1957)

FACTS

D went into the cellar of a house that was converted into two. He tore the gas meter from the wall and from its pipes and stole money from it. He did not turn off the gas at a stop tap nearby and gas escaped, seeped through the dividing wall of the cellar and partially asphyxiated his prospective mother-inlaw, who was asleep in her bedroom. D was charged, with having unlawfully and maliciously administering a certain noxious thing, coal gas, so as thereby to endanger her life.

DECISIONS

Not guilty. The D could not be guilty unless he realised that there was a risk, that escaping gas could injure someone. He had not foreseen the type of harm that actually occurred.

CASENOTE

R v Stephenson (1979)

FACTS

The D, a schizophrenic, lit a fire in a straw haystack to keep warm. Charged with Arson.

DECISIONS

Not guilty. He was judged subjectively due to his mental state. This has now been overruled by R v G (2003).

CASENOTE

Caldwell (1981)

FACTS

D set fire by night to a residential hotel where he had been employed. He bore a grudge against the proprietor. According to his evidence he was so drunk at the time that it did not occur to him that there might be people there whose lives might be endangered.

DECISIONS

Recklessness in the context of Criminal Damage does not require subjective appreciation of the risk of causing damage, but is also satisfied by a failure to consider an obvious risk. This has now been overruled by R v

G (2003). CASENOTE

R v G (3003)

FACTS DECISIONS

CASENOTE

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R v Bateman (1925)

Criminal Law – Year 2!

Mens Rea 2012 FACTS

D a doctor attended the confinement of a woman who died while giving birth.

DECISIONS

Not guilty. Where a doctor is consulted, by or on behalf of a patient, he owes a duty to that patient to use due caution in undertaking the treatment. If he accepts the responsibility he owes a duty to the patient to use a fair and reasonable degree of diligence, care, knowledge, skill, and caution in administering the treatment. Lord Hewart CJ: “…in order to establish criminal liability the facts must be such that, in the opinion of the jury the negligence of the accused went beyond a mere matter of compensation between subjects and showed such disregard for the life and safety of others as to amount to a crime against the state and conduct deserving punishment.”

CASENOTE

Fagan v MPC (1968)

FACTS

The D accidentally drove over a policeman’s foot but did not realise this. When asked to move, he refused.

DECISIONS

The Actus Reus was still continuing when the D formed the Mens Rea. He was therefore guilty of assault.

CASENOTE

R v Miller (1983)

FACTS

D, a squatter, fell asleep smoking a cigarette. When he woke up, he realised a fire had started but did not extinguish it or summon help (merely moved to the next room).

DECISIONS

House of Lords held that even when the original conduct was inadvertent, when D subsequently became aware of the danger he had caused, he was under a duty to prevent or reduce the risk by his own efforts, or if necessary by summoning the fire brigade.

CASENOTE

Thabo Meli (1954)

FACTS

The D hit the V over the head intending to kill him. Believing the V was dead and trying to make it look like an accident the D threw the V over a cliff where the V died of exposure.

DECISIONS

Guilty. The Mens Rea was continuing throughout.

CASENOTE

Church 1965)

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Mens Rea 2012 FACTS

The D hit a woman who taunted him. Believing she was dead he threw her in a river where she drowned.

DECISIONS

He claimed the Mens Rea ended when he thought she was dead. The court held the Mens Rea continued even after he thought she was dead, so this included her death from drowning.

CASENOTE

Le Brun (1991)

FACTS

D had, without intending any serious harm, hit his wife on the chin during an argument outside their house. She fell unconscious and he dragged her away in order to avoid detection. In doing so, he caused her head to hit the pavement hard enough to fracture her skull. She died as a result, and he was convicted of manslaughter. Original punch intended and that was enough.

DECISIONS

It was enough that the original punch was intentional. Although the original act was not the direct cause of death, that act and cause of death were both part of ‘the same sequence of events’.

CASENOTE

R v Latimer (1886)

FACTS

D, a soldier during an argument with another man C in a pub, took off his belt swung it at C, missed and wounded the landlady V.

DECISIONS

Guilty. The intention to strike C was transferred to V under the doctrine of transferred malice, although the result, in some respects, is an unintended one.

CASENOTE

R v Mitchell (1983)

FACTS

D and another man S became involved in a scuffle in a Post Office; D pushed S, who fell onto an elderly lady C, causing C injuries from which she later died.

DECISIONS

Guilty of manslaughter. His intention to assault X was transferred to C.

CASENOTE

R v Pembliton (1874)

FACTS

D broke a pub window by picking up a stone and throwing it at the group of men he had been fighting, missed them and broke the window behind them.

DECISIONS

Not guilty. His "malice" in intending to strike another person could not be transferred to an intention to break the window. Obiter: He could have been convicted had it been proved that he was reckless, having foreseen the risk of damage to the window.

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