Mens Rea - Other states of mind PDF

Preview

Summary

the mens rea element and the different states of minds...

Description

Unit 3(2) 22/10/2018 MENS REA & RECKLES RECKLESSNESS SNESS Offences of basic intent.

Cunningham [1957] 2 Q.B. 396 (Subjective test of OAP) Cunningham was living with his to be wife and her mother and he was short of money, so he broke into the house next door and tried to take money from the gas meter, he left the gas pipe running (he could have turned it off) he took the money and disappeared. His mother in law got gas poisoning which leaked through the walls. Did he commit an offence against a person? He was found guilty and appealed. Lord Bryne J said the following, •

Byrne J: o

‘In our view it should have been left to the jury to decide whether, even if foresaw that the the appellant did not intend the injury to Mrs. Wade, he foresaw remov removal al of the gas mete meterr might cause injury to someone but neve nevertheless rtheless remove removed d it it... In these circumstances this court has no alternative but to allow the appeal and quash the conviction.’

He took a risk he didn’t think about it; a reasonable person would have seen its not the right thing to do however he didn’t. •

Subjective recklessness o

Offence Against the Person

1| Page

Unit 3(2) 22/10/2018 W.L.R. .L.R. 600 (CofA) (Objective test of criminal damage) Parker [1977] 1 W Went out and was trying to get home, it was late he caught a train and fell asleep however he missed his stop. There were no more trains to get back home again. He went out the train station and couldn’t find a cab. He went over to a phone box and it was out of order. He was in such a temper he slammed the handset down on the phone, so he continued twice. The police saw him doing this, so he was charged with criminal damage. •

Criminal Damage Act 1971 s1(1): o

‘A person who without lawful excuse destroys or damages any property belonging to another intending to destroy or damage any such property or being reckless as to whether any such property would be destroyed or damaged shall be guilty of an offence.’

Was Parker being reckless? He made a statement saying •

Parker said: o

‘…I did not intend to damage it nor was I reckless as to whether I damaged it or not. It did not occur to me that what I was doing might damage it. I was simply reacting to the frustration which I felt. As I put the telephone down hard for the second time there were the police opening the door…’

It was said that •

‘In those circumstances, it seems to this court that if he did not know, as he said he did not, that there was some risk of damage, he was, in eff effect, ect, deliber deliberately ately closing his mind to the obvious obvious—the obvious being that damage in these circumstances was inevitable. In the view of this court, that type of action, that type of deliberate closing of the mind, is the equivalent of knowledge and a man certainly cannot escape the consequences of his action in this particular set of circumstances by saying, " I never directed my mind to the ob obvious vious consequences because I was in a self self-induced -induced state of temper temper." ."

•

The test used was objectiv objective, e, and not subjective subjective, since it was obvious that damage was inevitable, and D could not escape the consequences by saying that he had never directed his mind to them because he was in a self-induced state of temper.

•

Objective recklessness o

Criminal Damage

Q.B. .B. 695 (CofA) (Subjective tes testt of criminal damage) Stephenson [1979] Q

2| Page

Unit 3(2) 22/10/2018 Found a large straw stack and decides to lay down, however it was quite cold, so he lit a fire, and they haystack was flammable, it caught fire and he was charged with arson. He had schizophrenia. He hadn’t realised the outcome based on his actions. He was convicted, and the defence team appealed on the basis that it’s a subjective test. They allowed the appeal as the jury had not been left to decide that his schizophrenia was there. •

Held, allowing the appeal, that the conviction was unsafe because the jury had not been left to decide whether S's schizophrenia might have prevented the idea of danger entering his mind at all.

•

A person charged with criminal damage must be proved to have subjectively foreseen the risk of some damage resulting from his actions and nevertheless to have run the risk.

•

Subjective recklessness o

Criminal Damage

Caldwell [1982] A.C. 341 (Objective test of criminal damage) Had been working in a hotel and the hotel people refused to pay him and he said it wasn’t a good enough job. He went and got drunk and set fire to the hotel. He was charged with Charged with s1(1) and s1(2) Criminal Damage Act 1971. He pleaded guilty to S1(1) But not S1(2) endangering life as he was so drunk and didn’t think people could get hurt. The case went to the house of lords it was said that giving no thought to something wouldn’t get you off the hook. This is a subjective test any reasonable person knows there was danger involved in this. •

A person was guilty of recklessly endangering life… where he did what amounted to an offence… and… gave no thought to the possibility of there being any risk to life or, having recognised such risk, he nevertheless went on to cause the damage. It was irrelevant that… C had failed to give any thought to whether life would be endangered.

•

Objective recklessness •

Criminal Damage

•

House of Lords

HoL case sets the precedent

3| Page

Unit 3(2) 22/10/2018

W.L.R. .L.R. 939 (Objectiv (Objective e test of criminal damage) Elliott v C (A Mino Minor) r) [1983] 1 W •

The minor was a 14yr old school girl who was of low intelligence and she was also in the care system and decided to run away, she spent an entire night wondering around in the cold without a plan, she found a shed unlocked and went in there. She decided to light a fire she poured white spirit onto a carpet. The shed burnt down, and this was charged with arson and criminal damage.

•

It was found at first instance that she did not appreciate just how inflammable the spirit was, and having regard to her extreme state of tiredness, that she did not in fact give any thought to the risk of fire.

•

At first instance they acquitted her COA appealed and she was fount guilty, it was acknowledged that she didn’t know that it would be so dangerous, they said she was being concluded to a reasonable man however she’s a 14yr old girl with low intelligence so this case she didn’t fit the template of a reasonable man. Caldwell Recklessness

Cunningham Recklessness

The leading authority on rrecklessness ecklessness is:

4| Page

Unit 3(2) 22/10/2018

R v G [2003] UKHL 50 Current law on recklessness. Involves two boys aged 11 and 12. It was summer ad decided to go camping without there parents consent or knowledge. They decided to camp outside a shopping arcade at the back were deliveries are made. They settled down for the night but figured they were cold and kind of scared. They looked around and saw some newspapers and set a fire which didn’t keep them warm. They decided to go home they didn’t think about what they were doing and kicked the newspaper under the wheelie bins and decided to go home. The fire spread and £1000 damage they ended up in court. •

At 1st instance the judge expressed regret at the law he had felt bound to apply, and added: o

"I am satisfied in my mind that this is just one of those almost childish maybe 'prank' is too mild a word - which just went horribly wrong, and there, but for the grace of God, go many people. Members of the jury, with respect, it is irrelevant as to whether you share these sentiments, but I see that some of you may do."

The defence appealed they couldn’t do anything but follow the Caldwell’s rulings They asked •

The Court of the Appeal certified a point of law of general public importance: o

"Can a defendant properly be convicted under section 1 of the Criminal Damage Act 1971 on the basis that he was reckless as to whether property was destroyed or damaged when he gave no thought to the risk but, by reason of his age and/or personal characteristics the risk would not have been obvious to him, even if he had thought about it?".

The house of lords said that the Caldwell’s reading of recklessness was wrong. They said that o

(1) conviction of serious crime should depend on proof not simply that a defendant caused an injurious result to another but that his state of mind when so acting was culpable;

o

(2) the model direction formulated in Caldwell was capable of leading to obvious unfairness. It was neither moral nor just to convict a defendant, least of all a child, on the strength of what someone else would have apprehended if that defendant himself had no such apprehension;

o

(3) the judgment in Caldwell had been subjected to vigorous academic and judicial criticism, and

o

(4) the majority's misinterpretation of "recklessly" in s.1 was offensive to principle and apt to cause injustice.

They decided to overrule their old rulings.

5| Page

Unit 3(2) 22/10/2018 Its now a subjective test •

Subjective recklessness

•

Wherever the word reckless occurs

•

Consistency at last!!!

•

Only one form of recklessness now

•

Only one test now

6| Page

Unit 3(2) 22/10/2018 MENS REA & NEGLIGENCE Negligence focuses on the reasonable person. Not a state of mind •

An absence of thought

•

A failure to comply with the standards of the reasonable man

•

The fault element necessary for liability

•

Negligence is a less extreme solution than strict liability

•

It focuses on whether the accused has complied with the standards of the reasonable person

•

Negligence is something that we see more often in statute

Your talking about a subjective view.

s3 Roa Road dT Traffic raffic Act 198 1988(as 8(as amended s2 Ro Road ad T Traffic raffic Ac Actt 1991)

3. Careless, and inconsider inconsiderate, ate, driving. If a person drives a mechanically propelled vehicle on a road or other public place without due care and attention, or without reasonable consideration for other persons using the road or place, he is guilty of an offence.

s1(1) Intoxicating Su Substances bstances (Supply) Act 1985

1. 1.— — Off Offence ence of supply of intoxicating substance. (1) It is an offence for a person to supply or offer to supply a substance other than a controlled drug— (a) to a person under the age of eighteen whom he knows, or has reasonable cause to believe, to be under that age; or (b) to a person— (i) who is acting on behalf of a person under that age; and (ii) whom he knows, or has reasonable cause to believe, to be so acting, if he knows or has reasonable cause to believe that the substance is, or its fumes are, likely to be inhaled by the person under the age of eighteen for the purpose of causing intoxication.

7| Page

Unit 3(2) 22/10/2018

S1(1) Sexual Off Offences ences Act 2003 1 Rape (1) A person (A) commits an offence if– (a) he intentionally penetrates the vagina, anus or mouth of another person (B) with his penis, (b) B does not consent to the penetration, and (c) A does not reasonably believe that B consents.

8| Page

Unit 3(2) 22/10/2018 MENS REA & STRICT LIABILIT LIABILITY Y No mens rea requir required ed Least culpable Most common

Hobbs v Winchester Corpor Corporation ation [1910] 2 KB 471 s117 Public Health Act 1875 •

Where meat intended for human consumption is exposed for sale and is condemned as unsound, the person in whose possession or on whose premises the meat is found is liable to conviction under s117 Public Health Act 1875 whether he is or is not aware of the unsoundness of the meat.

Found liable if you made meat that is unsound if you knew or you didn’t regardless you’ll be liable. S4 Road T Trraffic Act 1988

4. 4.— — Driving, or being in charge, when under influence of drink or drugs. (1) A person who, when driving or attempting to drive a [mechanically propelled vehicle] on a road or other public place, is unfit to drive through drink or drugs is guilty of an offence. Williams [2010] EWCA Crim 2552- someone stepped out not Williams fault however he was uninsured so liable. Hughes [2013] 4 All ER 613 S3ZB Road Traffic Act 1988 1988: If you cause a death uninsured you are guilty of this offence.

S5 Sexual Off Offences ences Act 2003 5 Rape of a child under 1 13 3 (1) A person commits an offence if– (a) he intentionally penetrates the vagina, anus or mouth of another person with his penis, and (b) the other person is under 13 even if they say there was 16 Prince (1875) LR 2 CCR 154 Taking a girl who was under 16 away from her father. Prince believed she was over the age of 16, as if he took her from her father if she was over 16 he thought it wouldn’t matter. It was said the mens rea requirement still existed. If prince believed he had his fathers’ consent, then he wouldn’t have been liable

9| Page

Unit 3(2) 22/10/2018 The Imposition of Strict Liabilit Liability y

‘The circumstances under which the courts will impose strict liability in respect of a particular statutory offence are difficult to predict and regard must be had to the authority (if any) on the individual statutory provision in question.’(Blackstone's Criminal Practice 20 2019, 19, A2.22) You can’t always tell if somethings going to be strict liability you can only look at individual cases and asses the rulings on that. The Presumption of Mens R Rea ea

Sweet v P Parsley arsley [1970] AC 132

The Defendant was a sub-tenant of a farmhouse, where cannabis resin was found. S no longer lived in the house and had let out several rooms to tenants. She did retain a room but only returned occasionally to collect letters and rent. The appellant was charged and convicted under Section 5(b) of the Dangerous Drugs Act 1965 (1965 Act) with “being concerned in the management of premises used for the purpose of smoking cannabis resin.” She wasn’t aware, but they wer were e using her hooker pipe ffor or weed. She was ffound ound guilty and it reached the house of lor lords. ds. The house of lords said o

‘…In cases where Parliament has not made it clear that strict liability is intended, the courts, in construing criminal legislation, start from the presumption that P Parliament arliament did not intend to punish a blameless individual and therefore that words importing mens rea must be read into the statute… Mens rea is an essential ingredient of every offence unless some reason can be found for holding that it is not necessary, and the court ought not to hold that an offence is an absolute offence unless it appears that that must have been the intention of P Parliament arliament arliament…’

As she had no mens rea with the drugs use then she had launched her defence she didn’t know and would have stopped it if she had known and the HoL agreed with her

The Presumption of Mens R Rea ea Overridden

10 | P a g e

Unit 3(2) 22/10/2018

Gammon (Hong K Ko o ng) Ltd v A-G of Hong Kong [1985] AC 1] Breach of building regulation 1. Social concern, 2. Public safety, 3. The promotion of law enforcement 4. Offences that are quasi-criminal or 5. The direct will of Parliament.

Matudi [2003] EWCA Crim 697 Ordered goods from Cameroon and the consignment arrived at Heathrow and it got a spot check and contained 11 smoked monkeys, he didn’t have the correct certificates. He argued all he ordered vegetables. He even had proof for it. The judge ruled importation is one of strict liabity. The defendant appealed, and they said it was clear that parliament wanted this to be strict liabity as the entire point of the act is to impose sanctions on people who import these kinds of products.

CPS v M [2010] 4 All ER 51 Were charged under prisons act (new subsections under amendment) caught visiting a prison with a sim card and phone. Cps said there’s no evidence that they were going to pass it to a prisoner however its strict liabity as they had no intention, but it was listed as an item that can’t be taken in. they appealed, and they applied the ruling from sweet and parsley. This law only came into action 6 weeks ago and they didn’t even know it had come into action

Article 6: Compatibilit Compatibility y with strict liability?

Barnfather v Islington Education Authority [2003] EWHC 418 (Admin); [2003] 1 W.L.R. 2318 (DC)

Presumption of innocence

11 | P a g e

Unit 3(2) 22/10/2018

Barnfather v IIslington slington E.A [2003] EWHC 418 (Admin) o

S444 Education Act 1996

Miss barnf barnfather ather had been convicted ffor or her children not going to school, she appealed that strict liabit liabity y was incompatible with the European con conviction viction of human rights with Article 6(2). It went to the HoL and they said: •

Article 6(2), like the rest of Article 6, is concerned with procedural fairness, not fairness in substantive law. Article 6 lays down the requirements for a fair trial, for whatever the legislature chooses (however unfairly) to decree to be a criminal offence. Thus, it prevents (within limits) contracting States creating offences the elements of which the defendant is required to disprove: but it does not impose any minimum requirements as to what those elements should be.

Examples – explanation Janes been charged with murder when she goes to court she’s innocent till proven guilty, the prosecution have to prove beyond all reasonable doubt that she committed the actus reus and had the mens rea, if they can prove that to the jury then the jury can find her guilty and this would be a fair trial On a different day she’s charged with theft, if she’s charged •

Procedural fair trial NO NOT T a fair law!!!

Direct Intention: Intention should be left to the good sense of the jury, as per Moloney; who make their decision based on the objective view of the facts, as per Chandler Indirect Intention: The jury may find intent when the defendant has a subjective appreciation that death or serious injury is a virtual certainty, as per Woollin Recklessn Recklessness: ess: A subjective appreciation of the risk, as per R v G

12 | P a g e

Unit 3(2) 22/10/2018

Negligence: Compliance with the objective standards of a reasona reasonable ble person Strict Liability: No mens rea required; criteria as per Gammon ; a presumption of mens rea as per Sweet vP Parsley arsley

13 | P a g e...