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  1. 1. on.tuP 1of B l-Haque SaYed-U Barrister MENSREA stateof mind' whilein a certain committed actusreus the that ttredefendant must prove abstract The prosecution of a crime'This is not some elernent the definition in the'mental Thu t*rm mens rea rcfersto wordsinclude of everycrime'These worcjs the chargeor clefinition in to specific mentatprocess; refers it 'dishonestly' 'sufferingquot; 'fraudulentlyquot; or'negligentlyquot; ,reckressryquot; 'mariciousryquot; ,knowingry,, ,intentionaily,, and so forth' The intention a criminal of differsfrom crimeto crime' intention) mind or wrongfur intended Mens Rea (thegr.rilty liable'a personmust have To be criminally fronrthat of a rapist. comnritting tneft is differerrt wouldcausethe a thathis actions knowing manner in a reckress negtigent and to do wrongor have.acted of' resultcomPlained TYPESOF MENSREA mens reafor a can constitute necessary the separately together or wrri'cr. nrind Thereare threestatesof court but sometimes criminaIoffence'Thesearejntention'reck|essnessandnegligence.Sometimesthedefinitionofa statesis appropriate' whichof thesethreemental offence make it crear wiil criminar decisionsex ptaintherequirementsofthedefinitionmoreprecisely. r INTENTION where intent) the typicalsituation is as purpose Directintent(atsoknown Directlntention- actions desired' are of person's the consequences a his main aim ts ' larticular consequence: does t:' Oquot; ::tquot; l n te n ti o n -w h e re a D , the quot; .j happen. tt covers the Ob l i q u e a n^Fr.ACrrence , o ' *t t . . , i n n .*,,ffi .quot; ;;*quot; *quot; quot; ,o fma kingtheconSeqUencehappen.ltcover s i t i s n oi ac, vi rtuzl l v' certai n, though al anvwav' goesaheadwithhis actions uuLquot;,and the defendant ;J',,1']*n :** planes' claimon one of his insurance to makea fraudulent ownerdecides Exampre aeroprane An will certainly but he die some passengers when it exprodes, it knowingthat - (a) He prantsa bomb on This is directintention realistic' wifi make his craimmore this to happenas it does not mind and wants are desired' of the passengers) of his actions(thedeaths the consequences say that he die,although can honestly he passengers certainly will knowstlratsome - the This is obliqueintention (b) Alternatively,.he survived! be delighted they alt if and would does not want them to die' vlLr. wF of8 A l-Haque SaYed-U Barrister i'i,i' 'ft ;,i
  2. 2. ,' ,.,,lo,,ri;#,;#6&iffiffi,t;1quot;::*'aryi*1quot;'!{1$'J h ;f.' itJfi::1.i.' ,, B ar r is t eSa y e d -U l -H a q u e r :D(.NC.,UN 2ofB (the consec1uences deartlrs the perssengers) not whathe planned, he nevertheless were o[ but knewthat tlreywouldinevitably fromlrisactions blowing the plane. follow in up To requireproof that it was the cJefendant's purposeto bring about a particular may consequence involveplacinga very hcavy evidential burdenon the prosecution. surprisingly, giventhe above Not prool'ofobliqueintent(ie, foresight only rec;uires exanlple, criminal law rtormally intent) opposed to as P , directinterrt. The cor,rrts have statedtlratforesiglrt consequences only be evidence intention the accused of can of if lrappen. knenrtlrari tlrosc cor-rscqLlcnces would definitely Thus it is not sufficient that the defendant How can a jury be directed understand foresawa possibility a particular nrerely of occurrence. how to the existence suchforesight to be ascertained? is of A lineof casesdemonstrates this: [1961] 290,wasauthority theviewthata person At onetime,DPPv Smrth AC for foresaw intended and ihr: nrrrrr=r l: r nr l ' f f O bable CO nSequen6e s O f h i S a C t S . H O We V e r ,t h i s Wa S r e v e r S e d b y P a r l i a m e n t . rv I r stLr r rr ur rv ur I Section B of the Criminal Justrce Act /967, which now deals with how intention or foresight must be proved, provides: A courtor jury in deternrining wlrether personhas committed offence, shallnot be boundin law (a) a an to inferthat he intended foresawa resultof lris actionsby reasononly of its beinga natural and or probable consequence thoseactions; (b) shalldecide thatresult whether did intend foresee he or of but from the evidence appearproperin the drawingsuch inferences as by reference all the evidence to circumstances. neecJs be established personis not to be taken as intendingthe a to where foresight Consequently, and probable,although theywerenatural because probable consequenccs his act sirnply of naluralarrd and a jury is to a jury nray infertlrat fronrlookingat all the evidence. The test is therefore subjective was fromconsidering the evidence. all intenlion decide wlrattlre defendant's was considered the Houseof Lords.in: foresiglrt intention by Th'erelationship and between Hyan v DPP [/ 975JAC 5! her rivalfor the affections Mr X, put burning newspaper of The defendant, orderto friglrten Mrs Booth, in She claimed thatshe houseand caused deathof two of her children. the through letterbox Booth's the of bodilyharmas a highlyprobable deathor grievous resultof her had noi meantto kill but had foreseen probable licknerJ directed jury tlratthe defendant was guiltyif she knewthat it was higlrly the actions. harm. bodily tlratlreract woulcl causeat leastscrious that he did not thinkthatforesight a highdegree probability at is of of Although LordHailsham stated LC whichconstitiutes mentalelement-- the all ilre sametlringas intention, it is not foresight intention but and 8na-P 2afB l-Haque Sayed-U Barrister
  3. 3. - '': i: . il! , ;' iil:l;ii:,il' r''quot;i :iT;quot;; fi A(Na-'/' ofB B ar r is t er aY ed- lUH a q u e ' S that hi s the P artof the defendant Lf t l-orcls(lly a in rt'rttrcjcr' l-louseo[ rea for tlre l rarm w as suffi ci entmens /rf ' l ri g h l yl i k c l y ' ac t ior lswer e lil< e l yo r { t nlurder. contest see who to a shooting Ey!pIe!9yJJ9p9*|.|L,.Thec|eferrcjantancjhisstepfathercJranka|argequantityofalcoho|a|adinner aboutfi'rearms' hacl and they had a criscussion party.A few hoursrater live challengecl to fire a him stepfather Trrecrefendant but his won faster. roadand l,rre srrotgun a diclthis and killedhis courcr gun'was pointing the victim' at who was urlaware bullet.Tlre defendant, defendant judgedirected jury thatthe the 'rc The triar withmurder. was charged stepfather. cjefendant as a probable The death or real seriousinjury for murderif lre foresaw rea n-rens the necessary rracr it; arrcr was corrvicted' rre cve, i,re dicr crcsirc consequcrrce lrisactiorrs, of a verdict nranslaughter' 'ot of convictiorr substituted and quashecl nrurc]er ilre ,ouse of Lorcrs mens rea'for on appca*re injurywould be sufficient to kiil or cause reallyserious intent on,rre groundarat onry deathor grievous whether ask themselves the jury shourcr crirected.to be that saici Lord Briclge furtherwhetherthe defendant murder. of the defendant's and act' consequence bodiryharm was the naturar both lf the jury answered consequence his act' of harmas the naturar bocliry deathor grrevous foresaw hadintended consequences the to inferthatthe defendant affirmative wereentitled they questions the in of his acts. minerswho threw a were striking wLR 257: The defendants [1986]2 R v Hancockand shankrand miner was carrying working a berow. struck taxithat a lt ontothe motonvay to killor a bridge from to blockthe road b'utnot brock concrete that they only intendqd argued The d.efendants in--quot; and kirecJ driver. the statements basisof LordBridge's judgedirected jury on the the The triar harm. done'and did the causegrevousbodiry consequence what was of bodilyharma natural was deathor grievous of wereconvicted Moroney(ie, defendants consequence?) the and natural thatconsequence a as foresee defendarrts murder. that the of Lordswho reaffirmed was sr-rbstituted the House by nransraugrrter on appeara verdictof of the defendant' bodilyharmon the parl to kiilor do grievous an inte'tion were prosccution to estabrish and intention has foresight between guidelrnes tlre relationship on Moloney was Lord scarmanfertthat rhe intention expressed viewthat the sCarman to misread jury.Lord a rikery if therewas unsatisfactory theywere as couldbe established intention conseque:.quot;u,but that of with foresight a the defendantforesaw . not to be equated thereforeconsider whether The iury shourd evidence of foresight. of a consequence greaterthe probability to the jury that the be explained it consequence. should the morelikely lt thatit was foreseen' and the morelikely that it was foreseen, of intention' as an not occurring, more the was to be regarded evidence as 'keryrn srrort, foresight is that it was intended. fornrof it' alternative thathe only the fire but stated E.v[k!,igrU?f.o)ryUAclrildhadburnedtodeathinahousewherethedefendanthad,without admitted starting to box.'He bombthrough retter ihe warning, a petror pur AL'Na-f 3of8 B ar r is t er aY e d -U a q e l -H u S *',r-quot; f quot; - F.
  4. 4. ;:i f ,, 1 ::it I i t :i}tl:kill*+t&&'ltsii*!lL#qts#ieiquot;': tr ilti;i,ril ;aii.li--r4F*f -1a-P 4of8 , ' overturned murderconviction the court of Appear wanredto frighten owncr of trrehouse.The tlre judgelradmisdirected jurY' the substituted vercJict manslauglrter the as of a forajuryaboutintentinamurdercasewlrerethedefendant Lord LaneCJ provided modeldirection a eonediedasaresu|t.LordLaneCJsuggestedthatwhen act and som dangerous did a nranifestly jury to ask intent,it might be helpfulfor a wlrether defendant the necessary had the determirring fromthecJefendant's probalcwastheconsequence resulted wlrich b (1) thentselves questions: t-low two thatconsequence? act?(2) Dicjhe foresee voluntary cannot rrarmwas likelyto resultfrom his act' he ilratdeailror seriousoboity * rf rrc cricr appreciate not about' it bring to intenclccj lrave the personkilledwas only slight'then it that the riskto whichhe was exposing . rf rre did, but thougrrt the result' ilrat he did not intend to bring about might be easy for the jury to concrude that recognised time the defendant tlratat the material * on the o*rer hand, if ilre jury were satisfied intervention) result to some unforeseen (barring certain be virlually deathor serlousbodilyharmwould inferthat he intended kilt to fromwhichtheymay find it easyto fronrhis voruntary then that is a fact act, that result' any desire achieve to harm,eventhoughhe may not havehad bodiry or do serious on to a tquot;nlp*r and threwhis three-month-old-son ..Tlredefendant t.',i, lost n v woot,n t ,l with murder'He denied skulland died.woollinwas charged hardsu.,ace. son sustairred fractured a His virtual the phrases' harm.The trialjudge summedup using that he had an intention causeserious to the use of was convicted murderand appealed.against of risk.The defendant and substantial cerlainty risk' ,theterm of substantial to element murder'a jury were required in regardto the mentar The Houseof Lordsherdthbt, having harm' where that simple had intended kill or do seriousbodily to whetherthe defendant determine the that they were not entitled infer to directed was not enough,the jury shourdbe further direction cerlainresult bodilyharmwas a virtually unlessthey felt sureilrat deathor serious intention necessary had appreciated intervention) thatthe defendant and someunforeseen (barring actiorr of the defendani,s 'substantial the judgehad blurred iisk' the jury: by usingthe phrase thatfact.The judge had misdirected murderand manslaughter' had in and and reckressness, hencebetween and rinebetweenintention .ilre for murderwas required murder'The conviction for the scope of ilre mentarerement effect enrarged quashedandaconviction.formanslaughtersubstituted.>* harm was a virtual feel sure that death or serious bodily The jury may FIND intentionwhere they that that the D appreciated intervention) a resultof D's actionand as some unforeseen (barring certainty suchwas the case. was produced the Law by code, with a definition intention, of Recentdeveropments- draft criminar a has not yet madeit law' conrmission longago as 1989,but Parliament as Affta.f 4of8 Ba rr is t er aY ed- l- H a q u e S U .f
  5. 5. 4: t:tr:r?' a -rt, quot;i$ir{a*i4,*Mi*fi{/B{t€*U#!-i&ait4s :. : -. +-j. 5ofB ;*J{rarrister SaYed-Ul-Haque I TYPESOF INTENTION ' l i y p c so f i tttettti ol t tJltcrior Spccitic t. ., EAS]g]!IE!] and does not exceedthe mens rea is intention recklessness or intentcrime is one wherethe A basic any' does not have to have foreseen defendant terms this means that the actus reus. In simple +- reus'For example: qf the'actus thatraiddownin the definition or harm,beyond consequence, the the criminalDamageAct 1971)' damage(contrary s1(1)of to ,,simpre,,offence criminar of go rn the the mens rea need n:t of another'sproperty; the damage or destruction actus reus comprises danrage' beyond intention do criminal to an Act 1861)'is the Person (contrary s20 of the offencesAgainst to wounding The actusreusof maricious to do anythingmore withoutproofof his havingintended can be convicted woundingand a defendant thanwoundthe victim' INTENT SPECIFIC. the actusreus'in the sense the mens rea goes beyond crimeis one wherein theory intent A specific 1971)'the thatthedefendarrthasSonleu|teriorpurposeinnrind'Forexample: DamageAct damage(contrarytosl(z) thecriminal of criminar of rnthe,,aggravated,,offence.of to pr'operty the intention with causesdamageor destruction where a defendant offenceis committed factor offence' differentiating the identicar that of the simple to The actusreus is armost tife. endangering life' possess, endanger to r.rrust ,,specific,, intentthat the defendant is the furtheror of the offences bodilyharm(contrary s18 to intentto do somegrievous with The actusreusof wounding havehad mustbe shownnot onlyto However, defendant the personAct 1861)is wounding. 'an the intention do to Against mens rea, in the form of quot;specificquot; but also a furtheror ilre rlens rea for wounding harm bodilY ,semegrievous Hencethereferencetothe,,mensreagoingbeyondtheactusreus',' A(.'Tquot;e.Yquot; 5of8 $aYed-UI-Haque Barrister ri- J:;T '; '1i:
  6. 6. v.:'-r.a-P 6ofB BarristcrSa Yed- U Hac luc l- ULT E RI O R IN T E N -T s'18OAPA1861' Burglary' Example: nrcns.rca. It meansmensreawitlrin RECKLESSNESS has radically definition risk. lts legal taki ng an unjustified ln ev er y c la yl a n g u a g e ' re c k l e s s n e s sn ' l e ans form of ntens rea, so the focus is on what that i t i s a subjective c hangec J re c e n t y e a rs ' l t i s n o w c l e a r in t he def enc la n w a s th i n k i n g ' t Recklessness Cunningham Subjective - a) ,subjective appeared. recklessness'first terrn (1g71the ln R v cunningham against includenon-fatal.offences Recklesslyquot; 'cunningham offencesthat can be committed offe,nce.s: some CommonLaw offences' the,person;rape;TheftAct offences' ' D when risk?(Recklessness the sensethat the in lake an unjustified Did D consciously The Test: therewas someris<of suchharmoccurring) actingrealised ill] became (1957)[gasmeter'neighbour B v CrJnningham glassover rivalfor boyfriend' is lt lthrewbeer,and inadvertently parmenter[1gg2l R v savage and mightresult' harm,atbeitof a minorcharacter' that some physical that she shouldhavefores;een enough Guilty] would have arAc indifferent, gaven( thought' if he had there and I ) r ^4) 17 y'r. 15 and '1'7'r'quot;o[ds,inrliffer Pigg*(1982) [rape regardlessquot; Guiltyon Fv Not not awareof possibility persisted but been obviousrisk (of wrong penetr:ation) verdictsl othergncunds majority - couldn't bothindifferenttoquot;herfeelings' rape 13 yr. ordgirrBetty, (1-gQ4 and Kewar fioinr R v Satnarn Not guiltYl care lessattitude. Obiective Becklesqneqs Caldwell/Lawrence: b) same day) the term 'objective (decidedon the very rn Mpc v cardwell(rgB)and R v Lawrence[1gg2] recklessness' aPPeared' first Recklessness' now very limited are 'caldwelllLawrence with offences:offencesthat can be cornmitted HL fotlowing v G and another[2003J R AL?,A-f 6of8 $aYed-Ul'Haque Barrister *-; .i:!*i'::i' ''ft :quot;: ii. . ';1i..
  7. 7. Ltquot;. i i ... i. i 7Sg-60-y, 7 of B B ar r is t er aY e d -U a c l u c l -H S T lr eT es t : W astl re re a n .o b v i o u s ri s k w l ri c h Dconsci ous| ytookorunconsci ous| ytobkt T his m eans : - [T w o l i mb s ] thatmust obvious [to be = [serious notnegligible]'risk' creates serious a anyactwhich rimb: does D First viewed] manl[objectively prudent a reasonable and l i mb : or $ e co n d nr recklessness]' - r - ^^'.r ^aanac c t takcnit [advertarrt risr< nevcrthcrcss a.c, .a): rrasrecogrriscd sonlesucrr and the risk beingsome suclr'risk mincr ilre possibility th'ere of to nrusteirrer not evenaddressrris b) rre '' recklessness] ' was obvious [inadvertent 'i DEVELOPMENTS RECENT R v G and others(2003) in Theywentto the backof the co'op approvar. theirparents ,12 without went camping DD aged 11 and whichset fire to the shop' cause whichset fire to a wheerie-bin pagneil,rit some newspapers Newport have been Boththe judge and jury appearto were convicted arson by a iury. of f1m of damage.They HL (1982) thatthe law requlired R v caldwett in app'oach apprying objective the not contentwith was foundin the preparatory clecided, testof recklessness the was wrongly caldwell unanimously, Herd: Act 1971' Damage prior the criminal to workof the Law commission Damase 1e71 respect with Act 1 ofthecriminal ,-rnressry themeanins section of within ilil:::quot;rlo to- (i)acircumstancewhenheisawareofariskthatitexistsorwillexist; it willopcur; when'heis awareof a riskthat (ii)a resurlt to takethe risk'quot; knownto him' unreasonable and it is, in the circumstances to its RePortquot;A by the Law commission of the criminarcode Bit annexed (Basedon crause1g(c) (Law Com No and Draftcriminalcode Billquot; and wares Vorume1: Report code for Engrarr6 crinrinar fl7 , APril19Bg)) MALICE TRANSFERRED the actusreusof the crime,doesan act' whichcauses rea of a particr.rrar lf the clefendant, the nrens wirr one' respects' an unintended is although result' some in the he is guilty, pub' tool<pff nis belt $amecrime, with anotherman c in a duringan argument D, a sordier Latimer(1g86) to v to stril<e was transferred c the randrady Herd:the intention v. swungit at c, missedand wounded u n d e r t h e d o ctri n e o ftra n sfe rr edm a|ice,Dwasgui|ty arn tuP 7 of I SaYed-Ul-Haque Barrister :.'quot;fj
  8. 8. i -.. ';';:'fi - a(NC)-p lb- i l BofS ue BarristerSa ye d- Ul- i- laq ' js When |na.jjc.e not trangfe-rryl?- crime,does an act that causesthe actus However, the defenclant, the mens rea of a particular witlr if malice. uncJcr doctrine transferred of the crinre, will not bc liable lre reu$of anothcr from a pub and becameinvolved a fight.He threwa stoneat the pemblilalt(J!ru in D was cjcctecl missedthem but brokethe pub windowbehindthem. Held:His groupof men he lrad been fighting, ,,malice,' intending strikc anotherpersoncorquot;rld be transferred an intention breakthe to to not to in wirrdow. was ttotguiltY D aetuqlp shownthat liability be established must.be it principle crirrrinal tlratfor a person's to law It is a general in men:lrea at thc time the actusreuswas committed in other - possesscci necessary thc the c1efendant rule. Tlrisis alsoknownas the contemporaneity words'the nrustcoincicic. two leadto injustice, thb courtshave and In some casesa literaiinterpretation this rulewouldmanifestly of ways of findingcoincidence actusreusand roensrea (a) whenthe eventstake placeover of developed a periodof time,and (b) wlreretheyconstitute coLlrse events. of a ACTS (a) CONTINUING can coincide' Wherethe actus reus involves continuing a latermens rea duringits continuance act a See: Fagan v MPC 119691 QB 439. 1 Kaitantaki R[1985] AC 147. v (b) cHAtN OF EVENTS events(ie,a continuing The secondway the courtshavedealtwiththe problem to consider chainof a is law. lf the actusreusanfl actusreusfor the purposes the criminal of seriesof acts)to be a continuing see: thenthereis liability' thischainof events, the mensrea are bolr present sometimeduring at Thabofvleli v R 119541 WLR 228 1 [1960]1 QB 59 R v Church R v Lc Bnrn[1991]3 WLR 653. .Qna,A-Yquot; BofB B ar r is t er ay ed -U l -H a q u e S g-$ii::;* tquot; ,:- t '7 i; -