Mens Rea- 3

Criminal A2

Mrs Howe

Mens Rea

Mens Rea is the mental element of an offence.All offences must have an actus reus and a mens

rea unless it is an offence of strict liability.There are different levels of Mens Rea required for

different offencesTo be guilty D must have the minimum level of

intention.Specific intention- highest levelRecklessnessNegligence

Intention

In Mohan 1975 intention was defined as“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”.

This makes it clear that the motive or reason for doing something is not relevant.

Most intend to cause consequence.

Direct and oblique intent

In most cases the D has what is known as direct intent.

But can be situations where the D intends one thing and the actual consequence which occurs is something else

e.g Hankcock and Shankland 1986The D intended to frighten someone to stop him

going to work (miners strike) actual consequence driver taking man to work was killed

D wants to stop V’s car, so pushes a concrete block from a bridge onto the roadway

Direct Intent Oblique Intent

Concrete hits road and forces car to stop

Driver of car is hit by concrete and killed. Not the intended result

Foresight of Consequences

• Main problem is proving intention.

• Especially where D intended something else.

• If can show that in achieving intended thing D foresaw that he would also cause those consequences then could be found G

Recklessness

• Subjective Test- what was in the D mind

• R V Cunningham 1957

• Objective what would be in an ordinary persons mind

• MPC v Caldwell 1982

Gross Negligence

• Lack of Concern to the possibility of obvious injury

• Foresight of the risk but a resolve to still run that risk

• Foresight of the risk coupled with a weak attempt to avoid it that still amounts to high degree of negligent behaviour

• Inattention to an important matter that relates to the defendants duty of care.

• All left for jury to decide R V Adomako 1994

Transferred Malice

D can be guilty if he intended to commit a similar offence but against a different V.

e.g. aim to hit person A but hit person B still have Actus reus and Mens rea so offence committed

Where the mens rea is for a different type of offence then the D may not be guilty.

Pembliton 1874 Fight, stone, pub window, NG MR assault AR criminal damage

Coincidence of Actus Reus and Mens Rea

Actus Reus and Mens Rea must be present at the same time for an offence to have been committed.

e.g. If you intend to go round and assault your neighbour but when you get there you change your mind no offence is committed even though you had the mens rea.

If however an hour later you reverse your car and knock your neighbour over, whilst you have the Actus reus for assault you would not have the mens rea to be G of an offence. Thabo Meli V R 1954

Mens rea- Mental Element-

Intention, Desire, Motive

Direct Intention

D achieves desired result.

Oblique Intention

Something else happened as a result of act.

If can show Foresight of consequence can be G

Reason for doing act- not relevant for Mens Rea

What did the D want to happen

Direct Intention

Direct Intention Test

How probable was the consequence which resulted from D voluntary act

Did D foresee that consequence

Mens Rea mental act

D Intention Oblique Intention

Foresight of consequences

Direct Intention

Motive N/a

Occur at same time or during Actus Reus

Intend one thing get another

RecklessnessLower level Mens Rea

Objective Test – what was in ordinary persons mind

Subjective Test – what was in D mind

Gross Negligence

Transferred Malice

Lack of concern

Foresight and still took risk

Foresight and weak attempt to avoid it

Inattention to duty

Intention for one person can be transferred to someone else

Continuing Act

• Where there is a continuing act for the Actus Reus and at some time while that act is on going the D has the required Mens rea then the two do coincide and D will be guilty

• Has the required Mens Rea and Actus Reus for offence to be committed

Hancock and Shankland 1986

• Two D’s attempting to intimidate a fellow worker during a strike threw a concrete block from a bridge onto the victims passing car, killing the victim. The court focused on the probability of the consequence when using it as evidence to decide intent

Nedrick 1986

• The D poured petrol through the letterbox of a house to frighten a woman who was living there. The result was the death of a child. From this particular case two questions emerged, which it was hoped would help clarify the intent:-

• Was the result a virtual certainty of the action• Did the D realise that the result would be a

virtual certainty of the action.Unless the jury was happy that the answer to both

questions was yes they could not assume the D intention

Woollin 1998

• D threw his three month old baby at his pram. The baby missed the pram and crashed into the wall, dying of his injuries. The courts were not happy with the two questions used in Nedrick case but still warned the jury to find intention but only if they thought the result was a virtual certainty from the actions of the D and that they knew this to be the case.

Mathews and Alleyne 2003

• The D’s dropped the victim 25 feet from a bridge, into the middle of deep river. The victim had told them that he could not swim. They watched him dog paddle towards the bank but left before seeing if he reached the bank. V drowned

• Foresight of consequence is not intention

Maloney 1985

• D shot and killed his step father in a game that went tragically wrong. Both were drunk and trying to decide who had the fastest draw. It was decided by the court that foresight of consequence was only evidence that could be used to decide intent, it did not prove intent

Task

Create a timeline to show the cases which have developed the Law on Mens Rea

Add brief details to show the points of law each case made

Task

Create a table to show the main cases with regard to Mens Rea Case law

Quality CriteriaList all the relevant cases,

brief facts of each case and

the law the case created/defined

Task

Highlight the main differences between subjective and objective recklessness using the subjective and objective test

Use three of your own examples to illustrate your answer.

What are the problems with using such tests.

source Jimmy O Riordan Law for OCR, Heinemann, 2003

Questions• Describe mens rea• What is the relationship between mens rea and actus reus?• What are specific intent, direct intent and oblique intent?• What is subjective and objective recklessness?• How do the cases of R v Cunningham 1957 and MPC V Caldwell

1982 illustrate subjective and objective recklessness?• Give three examples of gross negligence• Who decides whether an offence constitutes gross negligence?• What is transferred malice?• What does the case of Fagan V Metropolitan Police commissioner

1968 show about the coincidence of mens rea and actus reus?

Source Law For OCR J ORiorden, Heinenmann 2003

Exam Question

• Comment on the importance of mens rea to criminal offences. How do the courts examine this concept? 50 marks

Scenario Questions

• Police stop a car and search the car. During the search police find small packets of cannabis. When they question the owner he thought was illegally importing money into the UK. At the time this was not an offence .

• Has the D committed an offence?• If so what offence?• What Mens Rea would be required

in this case?

No

No mens rea for importing cannabis even though an actus reus, so no offence

R V Taaffe 1983

Scenario Questions

• Police officer sees D driving erratically, he signals for the driver to pull over. The driver pulls over and parks the tyre on the Police officers foot. D was asked to move the car and tells the police officer he will do it later. He was asked to move it again. When questioned the D said he had done this accidentally and no intention of doing it nor done this recklessly.

• Has the D committed an offence?

• What would CPS have to be prove?

Yes. Although no intention to park car on PO foot by refusing to remove it he intended to leave it there. Then had the MR for the offence.

That he had the mens rea and actus reus for the offence of parking the car on PO foot. Fagan V Metropolitan Police Commissioner 1968

Coincidence of Actus Reus and Mens Rea

Mens Rea and Actus Reus have to be present at the same time

In Thabo Meli V R 1954• D’s attacked man • believed they had killed him. • Pushed body over cliff• Was alive after attack• Died later of hypothermiaMens Rea and Actus Reus were combined in a series of

actsMens Rea can occur where D continues and act. Fagan V

Metropolitan Police Commissioner 1986