Shared Resource


Published on

Published in: Business, Technology
  • Be the first to comment

  • Be the first to like this

No Downloads
Total views
On SlideShare
From Embeds
Number of Embeds
Embeds 0
No embeds

No notes for slide Shared Resource

  1. 1. Mens Rea Exemplar The meaning of intention in criminal law has now been clearly settled by decisions of the courts and there is no longer any need for parliament to legislate upon the matter. Critically consider whether you agree with this statement. Mens rea is Latin for guilty mind and concerns the criminal intention of the D when the actus Reus is committed. It is a necessary requirement of most criminal offences except those classed as strict liability. The most common types of mens rea are intention and recklessness. Having the necessary intention is a subjective test that requires the court to establish what the D was actually thinking. It has two distinct meanings: direct and indirect (oblique) intention. Direct intention requires that the D foresaw a particular result as a certainty and wanted to bring it about. It was defined in Maloney as ‘a true desire to bring about the consequences’. This makes it clear that the D’s motive or reason for doing the act is not relevant. The important point is that the D decided to bring about the prohibited consequence. This can be illustrated by looking at the s18 OAPA offence. The D must wound, cause GBH or intend to resist arrest. If D did not intend one of these then he cannot be guilty. For direct intention it is immaterial whether or not the desired result is achieved since inchoate offences are still possible e.g. attempted murder. The law is clear on direct intention. Oblique intention occurs where the D does not necessarily desire an outcome but realises that it is almost (but not quite) inevitable. There are however problems. What does almost (but not quite) inevitable really mean? What probability (of the result occurring) is sufficient to find intent? The main problem with proving intention is in cases where the D’s main aim was not the prohibited consequence. He intended something else. If in achieving the other thing the D foresaw that he would also cause these consequences then he may be found guilty. This idea is referred to as foresight of consequence. The starting point for foresight of consequence is s8 of the CJA 1967 which states that ‘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 it being a natural and probable consequence of those actions; but b) shall decide whether he did intend of foresee that result by reference to all of the evidence, drawing such inferences from the evidence as appear in proper circumstances’. The wording has been subject of many cases with the leading case now being Woollin. The first of these cases however was R V Maloney. D and V had been drinking heavily. They decided to have a race to see who could load and fire a gun in the fastest time. Moloney was quicker and pointed at the V who challenged him to fire it. He did and the V died as a result. The HOL’s confirmed that even where it was not someone’s desire, purpose and so on, the jury is entitled to infer that he still intended a result where D knows that the result is a natural consequence of his actions and the D realised this. In this case the HOL ruled that foresight of consequence is only evidence of intention. It is not intention in itself. Lord Bridge stated that jurors should be told to consider two questions: 1) Was death or really serious injury a natural consequence of the D’s act? 2) Did D foresee that consequence as being a natural result of his act? The problem with these questions is that the word probable is not mentioned. S8 of the CJA 1967 uses the phrase natural and probable consequence. Lord Bridge only referred to a natural result. This omission of the word probable was held in Hancock and Shankland to make the guidelines defective. The guidelines therefore are no longer law. They were unsafe and misleading. The D’s
  2. 2. were striking minors. They pushed blocks of concrete from a bridge above a road. The concrete killed a taxi driver. They claimed that they had not intended to injure or kill anyone but merely to block the road. It was held that in such cases the probability of death arising from the act done is important ‘if the likelihood that death or serious injury will result is high the probability of that result maybe seen as overwhelming evidence of the existence of the intent to kill or injure’. In Nedrick the COA thought that the judgements in the two earlier cases of Moloney and Hancock and shankland needed to be made clearer. D had a grudge against a woman. He poured paraffin through the letterbox of her house and set it alight. A child died in the fire. D was convicted of murder but COA quashed the appeal and substituted it with one of manslaughter. To make the law decided in Moloney, Hancock and nedrick easier for the jurors to understand and apply in murder trials, the CA said that it was helpful for the jury to ask themselves 2 questions: 1) how probable was the consequence which resulted from D’s voluntary act? 2) Did D foresee that consequence? It was necessary for the consequence to be of a virtual certainty and for the D to have realised that if this was so then there was evidence from which the jury could infer that D had the necessary intention. The standard direction given in nedrick was ‘the jury should be directed that they are not entitled to infer the necessary intention unless they feel sure that death or serious bodily harm was a virtual certainty as a result of D’s actions and that the D appreciated that such was the case… The decision is one for the jury to be reached on a consideration of all evidence’. This remained law until the case of Woollen which held Nedrick was not helpful. The D threw his 3 month old baby towards his pram. The baby suffered head injuries and died. The court ruled that the consequence must have been a virtual certainty and that D must have realised this. Where the jury was satisfied on both of these 2 points there was evidence of intention. Here the nedrick direction was approved bar one amendment where lord steyn said it had stood the test of time. The substitution of find for infer. The decision in Woolin seems to create more problems than it solved. Does the substitution of the word find improve the clarity of the direction to the jury? Another problem is whether the use of the word find means that foresight of consequence is intention and not merely evidence of it. In his judgement lord Steyn also went on to say that the effect of the direction is that ‘a result foreseen as virtually certain is an intended result’. He also pointed out that in Moloney the HOL’s had said that if a person foresees the probability of a consequence as little short of overwhelming, this ‘will suffice to establish the necessary intent’. Lord Steyn emphasised the word establish. This seems to suggest that the HOl’s in Woollin regarded foresight of consequence as the same as intention, when Moloney had clearly stated it was not. In later cases there have been conflicting decisions on this point. In Re A doctors asked the courts whether they could operate to separate conjoined twins when they foresaw that this would kill the weaker twin. The COA clearly thought that Woollin laid down the rule that foresight of consequence is intention making it part of the substantial law rather than evidential law. Matthews and Alleyne confirmed that foresight of consequence even of a virtual certainty is not intent but simply evidence of intention, leaving the meaning of intention ever more unclear. It can be seen that the law on intention is still not in a satisfactory state. The law commission in its report proposed that intentionally should be defined as ‘a person acts intentionally with respect to a result when: a) it is his purpose to cause it; or b) although it is not his purpose to cause it, he knows that it would occur in the ordinary course of events if he were to succeed in his purpose of causing some other
  3. 3. result’. However even this definition could cause problems. What is meant by in the ordinary course of events? The meaning of this phrase appears broader than the test of the virtual certainty used in Nedrick/ Woolin. This could mean that such a change in the law would lead to more people being convicted of offences which they did not directly intend to commit. The law on intention has clearly not been settled as the meaning of intention is ever more unclear and the law is not in a satisfactory state. There is a clear need for legislation. Recklessness covers the situation where a D takes an unjustifiable risk. It is a subjective test and the D must recognise the risk that he or she is taking. In R V Cunningham D tore a gas meter from the wall of an empty house. This caused gas to seep into the house next door, where a woman was affected. He was not guilty since he did not realise the risk of gas escaping into the next door house. He had not intended to cause the harm, nor had he taken a risk he knew about. Previously two different types of recklessness existed subjective and objective, but the objective form is now extinct due to R V G and another. The D’s set fire to newspapers. They thought that the fire would go out itself. In fact a bin caught fire and caused £1 million worth of damage. The jury had to decide whether ordinary adults would have realised the risk. The boys were convicted under the criminal damage act 1971. Initially it was thought the decision in G and another only affected the law on recklessness in relation to criminal damage. However the G and another version of recklessness have since been applied by the court to other areas of law (attorney generals reference). This case was a very different area of law as it involved the common law offence of wilful misconduct in a public office. So now the law is clear. In Caldwell D had grievance against the owner of a hotel. He got drunk and set fire to the hotel. D was charged with arson under the CDA 1971. This requires that the D intended to endanger life or was reckless as to whether life was endangered. D claimed that he was so drunk he had not realised peoples lives might be endangered. In Caldwell the HOL’s’ held that recklessness covered 2 situations. The first is where the D had realised the risk and the second is where D had not thought about the possibility of any risk. This caused problems in cases where the D was not capable of appreciating the risk. In Elliot V C, a D was 14 year with learning difficulties. She did not appreciate the risk that she might set a shed on fire. But she was found guilty because ordinary adults would have realised the risk. This seemed unfair the girl was not blameworthy. If she had been judged by the standard of a 14 year old with learning difficulties then she would not have been convicted. It was absurd to judge her against the standard of ordinary adults. As can be seen here the law on recklessness has been settled. Gross negligence: A person is negligent if they fail to meet the standards of the reasonable man. In Adamako the D was an anaesthetist carried out an operation on a detached retina. One of the tubes supplying oxygen to the brain became disconnected and the patient suffered a heart attack and brain damage. He died 6 months later. Doctors giving evidence at the trial said that a competent anaesthetist would have noticed the disconnection within 15 seconds and the D’s failure to react was abysmal. The trial judge directed the jury on gross negligence and they convicted. In relation to a continuing act, the D must have the actus Reus and mens rea at the same time. This could lead to some criminals being acquitted therefore in cases where the actus reus comes first the courts apply the continuing act doctrine, where the actus reus is stretched overtime to the point where the D had the mens rea. In Fagan V
  4. 4. MPC, The COA held that once Fagan knew the car was on the officer’s foot he had the required Mens Rea. As the actus Reus was still continuing the two elements were then present together. In some cases the mens rea may come first. Here the courts have applied the one transaction doctrine, where the same series of events is held to be a single transaction and the D will be guilty if he/ she had both the actus Reus and mens rea at the same point. In Thabo Meli V R D’s attacked a man and believed they had killed him. They pushed his body over a cliff. The man survived the attack but died of exposure. D’s were guilty of murder as the required mens rea and actus Reus were combined in a series of events.