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Mens Rea

By the end of this unit, you will be able to: Explain what is meant by the term ‘mens rea’ and illustrate your explanation with cases Understand what is meant by the terms:

o Direct intent, o Oblique intent, o Specific & basic intent.

Explain the current legal test for recklessness, and understand how the test evolved. Explain the scope of the doctrine of transferred malice and how the courts have developed the concept of coincidence.

You will also be able to evaluate: The development of the law on oblique intent and the proposals for reforming it. The limitations of the doctrines of coincidence and transferred malice.

Homework During this unit, you will be set the following. In completing homework, you will be expected to do your own research and supplement your own notes. This is essential to show understanding.

1. Complete Homework Sheet (2) 2. Complete Case Cards for Actus Reus and Mens Rea.

End of Unit Assessment As with AS, you will sit a DRAG test on elements, but this will be done at the end of this unit. You will also complete the following problem question (from Part B of the exam), which we will plan in lesson

time, and you will then write up in timed circumstances as your termly assessment.

Wayne belongs to a terrorist organisation. He telephones the police to say that he has placed a bomb in a van on Westminster Bridge and confirms that it is timed to explode in fifteen minutes. The police telephone operator mistakenly thinks that Wayne has said 'fifty minutes' and immediately communicates this information to his superior officer. The bridge is closed and people and vehicles are cleared within ten minutes leaving only one van with no driver. Fifteen minutes after the original telephone call, Martin, a bomb disposal expert approaches the van wrongly believing that the bomb will not explode for at least thirty minutes but is killed instantly when the bomb explodes. Wayne claims that he was only trying to cause disruption and that he never wanted to harm anyone. Consider Wayne's potential liability for the death of Martin. [50] Jan09

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Mens Rea Mens rea literally means ‘guilty mind’. The concept comes from the latin phrase:

actus non facit reum nisi mens sit rea.

This means . It is the most important element in allocating blame and justifying any future punishment and generally refers to Ds state of mind at the time of the offence. It is often called the fault element of the crime, and each crime may have more than one element of MR. What do I mean by this? Well remember the offence of theft? MR Element One: MR Element Two: [Remember that the prosecution is under a burden to prove the elements of the MR beyond reasonable doubt.]

I am fed up with no homework being handed in on time, and throw my file intending to scare Bob, but miss, and hit Harry, knocking him through the window and onto the tennis courts. He dies as a result. Do I have the ‘guilty mind’ for the murder?

Not all crimes require the same level of fault. MURDER MANSLAUGHTER

Mens Rea: Why is there a difference between the two mens reas?

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There is a ‘sliding scale’ of mens rea as written below.

Intention Recklessness Negligence Strict Liability. Where do you think motive fits in to the concept of Mens rea?

R v Steane 1947 (CA)

What do you think is the difference between

these?

Facts: Ratio:

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Types of Mens Rea The two main types of MR that we will be concentrating on will be intention and recklessness 1. Intention What do you think intention is? Using your own words, define it below.

This is the most blameworthy of the types of MR. In law, there are four different types of intention:

Specific, oblique, basic and direct.

Direct Intent [or Express] Simply put, this means you foresee and intend the consequence which occurs. e.g. I pull a gun, point it at you and say, “You’re dead.” I then pull the trigger. Do I intend to kill you? This is found in the majority of cases. We might describe this as a , , , or . It is the most straightforward of the four. The test for intent is subjective. This means that it is based on what D, in those circumstances thought, not what the reasonable person would think. R v Mohan 1975

Oblique Intent *This is a complicated area, and can be a popular part A question*

This really only applies to the cases of murder and manslaughter. Oblique intent is used if there is no direct evidence of D’s intent to kill or commit GBH. Normally this means that we have to look at the evidence to figure out intent, and is (realistically) very few cases. So what do we mean? What if D intends a consequence, but as a result of his actions V dies. Is he liable for V’s murder? Well, the answer hinges on whether the death was foreseeable and indeed, just how foreseeable something is!

Facts: Ratio:

“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”

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SCENARIO: What if I am sick of a pupil and decide to blow up E52, knowing that the student will be in there during lesson time. The classroom blows up, killing the rest of the class as well.

Did I intend to kill the others? What argument could you make to justify my intent, and therefore ensure that I am found guilty?

Now, here is the first time that you will really get to know the assessment objectives at A2. For AO1, you will need to know the cases, their facts, ratios etc. However, for AO2, particularly in Part A Essay questions, you will need to be able to evaluate and

debate the development of the law, and potential proposals for reform. DPP v Smith (1961)

Smith was hung, but this was a very unpopular decision. However, the House of Lords

could not overrule the case [Why? ] so the

government passed the Criminal Justice Act 1967 s.8 which

describes what would be sufficient for ‘proof of intent’.

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 reasons

only of its being a natural and probable consequence of those actions: but b. shall decide whether he did intend or foresee that result by reference to all the evidence, drawing

such inferences as appear proper in the circumstances.

1. What would D have to show to ensure that he did not have the intention? 2. Whose decision is it?

FACTS: D involved in a robbery, V was a policeman and tried to stop him by clinging to the bonnet. He was shaken off into the path of another vehicle and killed. D was charged

with murder. Was he guilty?

LAW:

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3. What will they use to help them make a decision on intent? The rest of the cases really revolve around what this section of the law actually means, and particularly the word “foresee” – how far do you have to foresee something for that to be evidience of intention?

This concept is known as foresight of consequences and has caused the courts a (little) difficulty over the years. Look at the grid below. At what point would you say that D has enough foresight of consequences to form an intent? Impossible Unlikely Possible? Probable Highly

Probable Virtually Certain

Certain

Look at the following. Which degree of foresight is described in each situation? Put the number in the relevant box.

1. A man fires a shotgun out of the window of a remote farmhouse 2. A man fires a shotgun which he is holding directly at the head of his victim 3. A man fires a shotgun out of the window of a shop in the high street 4. A man fires a shotgun in the direction of a bus queue twenty feet away 5. A man fires a shotgun into the air on the moon (no other astronauts around) 6. A man fires a shotgun at the head of someone stood in his doorway. 7. A man fires a shotgun at a bus queue six foot away.

Hyam v DPP (1975)

FACTS: D set fire to a house, killing children inside. She only intended to scare.

LAW: The court said the test for foresight was: D must have foreseen that death or GBH was a highly probable result.

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What do you think? How might you develop your AO2 in critical comment with this case?

What happened next....?

R v Moloney (1985)

1. Look at the test, and at s.8. What had Lord Bridge forgotten?

2. Should ‘oblique intent’ have even been an issue here? R v Hancock & Shankland (1986)

LAW: The House of Lords ruled that foresight of the consequences is only evidence of intention. (It is not enough to form intention in its own right) and the probability must be overwhelming

This next section has been overruled by later cases

Bridge LJ set down a two stage test (to decide whether consequences were foreseen) to be put before juries:

1. Was death or really serious injury a natural consequence of the defendant’s act? and

2. Did D foresee that consequence as being a natural result of his act?

FACTS: DD were miners who were on strike & trying to stop another miner going to work. They dropped a concrete clock from bridge intending to block the taxi carrying the miner. It hit the taxi, killing the driver. Ds were charged with murder, and convicted after the trial judge used the Moloney direction. Quashed on appeal.

LAW:

FACT:

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R v Nedrick (1986) *Key case* CA Why is this word so important?

R v Woollin (1998)

Read the case report included and answer the following questions in as much detail as possible.

1. What happened? 2. Do Woollin’s actions amount to the AR of murder? 3. What was the decision of the House of Lords? 4. How did the House of Lords modify the Court of Appeal in Nedrick? 5. What is the new ‘model direction’? 6. Explain the fact that Woollin may have been convicted under the new law.

FACT: LAW: The CA decided to use this case to clarify the rules and set an easy to understand test for the jury: 1. How probable was the consequence which resulted from D’s voluntary

act? and 2. Did D foresee the consequence? Those consequences should be a virtual certainty. If all this can be proven, then the jury can infer intent from the circumstances.

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Finally: The most recent statement on the law from the Court of Appeal (and a local case – MK!). R v Matthews & Alleyne (2003)

Hmm... what do we think? What issues might there be with this decision? What does it seem to say about foresight of consequences?

Specific & Basic Intent This is only really relevant to the ‘defence’ of , and was an invention by the courts.

Specific Intent means that the mens rea for the offence is intent, and intent only. Any other intention, e.g. recklessness, is insufficient.

e.g. MURDER

Basic Intent offences are those where the mens rea can be intention, but it could also be enough that D is reckless in his actions.

e.g. ASSAULT occasioning ACTUAL BODILY HARM

We will return to these later...

FACT: LAW:

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Consolidation In your Group: 1. Sort out the cards and match the case, the ratio and the facts. 2. Complete the grid on the key cases below, using this information. 3.

Name Facts FoC Considered? Test/ Point of Law Verdict

DPP v Smith (1961) HL

D set fire to the house of her love rival, by pouring petrol through the letterbox, , killing two children inside.

Bridge LJ: a. was death or really serious injury a natural consequence of D’s act? And b. did D foresee that consequence or injury as a natural result of his act? If yes to both, jury find D had the necessary intent.

Yes. Foresight of consequences is only evidence of intention, it is not enough to be intention on its own.

R v Nedrick (1986) CA

Due to the misdirection of the judge, D’s conviction for murder was replaced with one for manslaughter.

DD robbed the defendant, who told them he could not swim. They then pushed him in the river Ouse and he drowned.

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RECKLESSNESS This area is a little clearer [thankfully!!!]. This is currently defined as:

The conscious taking of an unjustifiable risk.

WHAT DOES THIS MEAN? D need only have a small awareness of the risk to be found criminally liable. Recklessness is sometimes implied in the phrase “maliciously”, especially when it appears in statutes (well... mostly). Offences which have recklessness as some form of their mens rea include assault and battery, criminal damage and actual bodily harm. The main debate of this topic is whether the test for recklessness is objective or subjective. Believe it or not, you all actually know this as you were told it last year! Objective means: Subjective means: R v Cunningham (1957)

This was the standard case for years, until the following controversial decision by House of Lords. This

caused huge upset and confusion

... until recently!

FACT: D broke into an empty house to rip off a gas meter. He thought that the gas was disconnected. It wasn’t. As a result of his tampering, gas leaked into the next door house, and killed V. D was charged with administering a noxious substance under s.23 of the

Offences Against the Person Act 1861

LAW: The court quashed his conviction, holding that the test for recklessness was:

1. Whether D realised that there was a risk of the outcome occurring, and went ahead anyway:

It is a test, and the court decided that D did not realise the risk of the death.

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R v Caldwell (1981)

Hmmm... let’s stop a minute. On your desk you have a card. The card is a point of criticism regarding Caldwell. In

your groups, explain why this is a criticism. Each group will feedback, so that we have a whole list of points!

Point Explanation This has changed the test for recklessness completely.

It is too general and doesn’t take account of D’s characteristics

It has been expanded to other offences such as manslaughter

The reasonable man is always reasonable.

It makes the law unclear for both the courts and the defendants.

It reduces the amount of risk D needs to foresee.

FACT:

LAW: The court decided that liability through recklessness could occur in two situations:

1. D realised the risk and went ahead; or 2. D had not thought about the possibility of any risk but

went ahead

This means that it is an test, and as long as the reasonable person would foresee the outcome, then D is convicted.

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So were the consequences of the decision in Caldwell really that bad? Elliot v C (1983) D Elliot was hugely criticised [Why?] .... and eventually, the House of Lords used the Practice statement to overrule Caldwell

R v G (2003) *key case*

A*- B Recklessness Extension: Read Storey & Lidbury Criminal Law pp.39-44. Add to your notes on this area, and use this to find the facts and ratios of the following cases. What do they illustrate about the problems in this area of the law?

Lawrence Spratt

Seymour

FACT: LAW:

FACT: How much damage can I do with a pile of papers under a wheelie bin…?

LAW: HL used the Practice Statement to overrule Caldwell – the test is:

Did D realise that there was a risk and go ahead anyway?

DD’s convictions were overturned, and the decision was followed in the later

case of Cooper (2004).

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TRANSFERRED MALICE This is a slightly more controversial area of the law, and some argue that it should be abolished. It states that the mens rea of a crime can be transferred to a victim who may have been unintentional. e.g. Fred decides to kill Wilma by pushing her out of the window. She falls into Pebbles,

causing her to fall out of the window and die as a result of her injuries. Fred’s intent to kill Wilma is transferred to Pebbles, and under the doctrine of transferred malice, he would still be liable for her death.

R v Latimer (1886) R v Mitchell (1983)

FACT: D was a soldier in a pub and aimed his belt at X intending to hit him, because he had insulted him. Instead he hit a woman, V, in the face.

LAW:

FACT: D pushed into a queue at the Post Office. X (age 76) reprimanded him, and D hit him. X fell into V (aged 94) who fell and eventually died as a result of her injuries. D was charged with unlawful act manslaughter

LAW:

What was the

unlawful act?

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There does appear to be at least one restriction on the doctrine. The courts seem to have to created an exception where the mens rea is for a different offence from the actus reus. R v Pemblition (1874) AND: Attorney-General’s Reference No. 3 of 1994 (1997)

LAW: FACT: Outside a pub, D was involved in a riot. He threw a rock, intending to hit X, but smashed a window in the pub.

FACT: LAW:

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CONTEMPORANEITY OR... COINCIDENCE....

This is the last topic on mens rea, and really works to link the mens rea and the actus reus together. This may sound obvious, but generally speaking, to be liable for the offence, the mens rea must be

present at some time whilst the actus reus is taking place. This was confirmed by Lord Diplock in R v Miller (1983). [see earlier case report] R v Miller (1983) When did D develop the MR of arson under s. 1(1) and (3) of Criminal Damage Act 1971?

Why do you think the courts developed this rule?

The courts seem to look for contemporaneity when it seems that none really exists based on the facts: R v Church (1965) Thabo Meli v R (1954) [transaction or series of acts]

FACT: D got into a vight with V when she mocked him about his sexual skills. He hit her, and she vell. He thought she was dead, so dumped her body in the river, and she died of drowning

LAW:

FACT: LAW: The courts convirm that MR may be present at any time until the act is complete, and under the series of acts doctrine, D was liable as he had committed one of a series of acts leading to D’s death, and had the MR when

he committed that act.

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In order to convict in these cases, the courts have developed the theory of.... Continuing Act

This is a slight variation on the coincidence doctrine, and says that where the act is a continuing act, D may develop the mens rea at any point before the conclusion of the act. As long as they collide at some point, D will still be guilty.

R v Kaitamaki

D had sex with V, during which he realised that she did not consent.

He continued, and when charged with rape, argued that he did not have the MR at penetration – the key AR

element of rape.

However, his conviction was upheld by the courts, as they argued that rape was a continuing offence, and

was only complete one the act of penetration was complete. Had he withdrawn when he discovered that she

did not consent, he would not have been liable.

Fagan v MPC (1969)*KEY CASE* -

READ THE LAW REPORT AND ANSWER THE FOLLOWING QUESTIONS IN AS MUCH DETAIL AS POSSIBLE!!!! 1. What are the facts of the case? 2. Was Fagan convicted or did he lose his appeal? 3. What is the actus reus of assault? 4. Why was Fagan appealing? 5. How did the QBD deal with these two issues of liability? 6. Can you spot the future persuasive precedent?

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Principles of Criminal Law: Mens Rea

T O D E D K D S O Q W O A L Q Q L G X R

T N U E Y I R N X D M B J A B M L N X Q

P Y B I R C R N A T X A C T D X S I F N

R Z D W R R Z E A L B H E I N L K U H O

C H U R C H E F C G K T J M Z L I N H J

L A R U T A N F O T A N X E B E N I L F

S P E C I F I C S R O F A R O W T T M V

C E R T I A N T Y N E V Z H K D A N A X

N O T I L B M E P L A S F A S L N O L N

C I S A B R L V B M M R I N I A T C I B

N K I I N A X A A O K T T G X C I A C C

M R L H U G B H L W A C W C H J O E E B

E E B T A O G O Z M C O I T P T N U X A

M C R L R N N X A J O F W R M L R Q O L

T I R P I E C K G L Q I M H D G R I I M

V W Q N Y E I O I F H S X Y F E S L A V

J G N Z N T Y N C M J J S L V Z N B D Q

C U D J F W N B T K A C T T Q Q L O L M

C X Q I S Q I Q Y V I G J S I K O M M D

S E C N E U Q E S N O C M X X C Y K V A

ACT BASIC CALDWELL

CERTIANTY CHURCH CONSEQUENCES

CONTINUING CUNNINGHAM DIRECT

FAGAN FORESIGHT HANCOCK

INTANTION KAITAMAKI LATIMER

MALICE MELI MOLONEY

NATURAL NEDRICK OBLIQUE

PEMBLITON PROBABLE SHANKLAND

SPECIFIC THABO TRANSFERRED

VIRTUAL WOOLIN

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“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 Jan. 2005 [50 Marks]

Criminal intent is one of a number of mens rea that can be use when convicting a defendant, other areas of mens rea like recklessness or negligence have been defined much more clearly, while intent remains dangerously precarious in definition. This seems extremely unfair when it is taken into context that criminal intent is used as the mens rea in murder case, and a conviction holds a mandatory sentence of life. One of the largest problems with the definition of criminal intent is its breadth, as both direct and oblique intent can be used. Direct intent is said to be ‘a true desire to bring about a consequence’ and oblique intent is stated as ‘a state of mind where the defendant appreciates his conduct is virtually certain to lead to a particular conclusion (even if that conclusion was not desired)’, however oblique intent is not always defined in this way and used to include the foresight of highly probable causes, as in the case of R v Smith 1961, which would now be a manslaughter case, so if oblique intent is difficult to define then the whole concept of criminal intent seems impossible. The mens rea of murder also complicates the issue of a clear and satisfactory definition of criminal intent, lord Coke (who stated the only definition of murder we hold today) wrote that intent for murder was malice aforethought either by express or implied intent which significantly widens the area of interpretation. Express intent in murder is said to be a ‘true desire to kill’ while implied intent is the more shaky area of ‘intent to cause really serious harm’ (GBH) again these areas are widened by the fact that both of these carry the direct and oblique interpretations as well, which makes a definition problematical. The definition of criminal intetn as it stands now is defined in the case of Matthews and Alleyne which included indirect intention, the judge directed the jury to find him guilty if they thought that the defendants saw a virtual certainty of the victim drowning. This case overturned the precedent set by Moloney, Nedrick and Woollin and defined criminal intention as direct and oblique intent, a much wider category. This definition however is far from clear and satisfactory, firstly although direct and oblique intention have been defined it seems that in certain crimes or circumstances different rules apply (Matthews and Alleyne) this leaves the law inconsistent and any definition is therefore opaque and illogical. And secondly, is it fair clear or satisfactory to convict a defendant on the same charge as both intent to kill and the virtual certainty that the defendant’s actions will lead to really serious harm? Virtual certainties are a dangerous area to try and define. The question is can parliament make a statute that is able to define criminal intention, a statute that is clear, simple, fair and effective or will they simply make a clouded matter much more unclear. In the Criminal justice Act of 1967, parliament defined the ‘proof of criminal intent’ in section 8 of the act. It reads 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 reasons only of its being a natural and probable consequence of those actions; but

b. Shall decide whether he did intend or foresee that result by reference to all the evidence, drawing such inferences from the evidence as appear proper in the circumstances.

This was the last attempt that parliament gave upon trying to define intention, and it included oblique intention, which was overturned by R v Moloney 1985 and followed by Nedrick and Woollin. The fact that it stated that the jury could find the defendant guilty if they think the evidence infers it was enough for the statute to be easily overturned with the common law. The act gave the jury the option, which would mean the judgement law with them and that as it didn’t define it properly, it was left to the interpretation of the judiciary, which it eventually was in the House of Lords – who went against the direction in the act, and since it was plainly vague (i.e. infers) it was easy to do. The definition of criminal intent as it stands is far from clear and certainly not satisfactory, although its definition is much better than it has been in the past, for example changing from highly probable to virtual certainty it still holds too many inconsistencies and maybe has too much breadth (e.g. implied oblique intent). There is also the problem of the case variations, although a consistent decision is needed, different cases have different circumstances (the difference between the intent of Moloney and that of Matthews and Alleyne) and different interpretations are needed sometimes. Would it be a good idea to have a statute that pull all diverse into a few pigeonholes? This may cause more judicial problems than is solved, not to mention the face that a statute would be subject to the judge who interpreted it; with the different ways of interpretation (literal, mischief) it would be difficult to have a consistent decision and would depend completely on all judges interpreting the statute literally. The act of 1967 made little impact why would this one unless it closed more doors than it opened making sure everything was followed tightly to the letter. If a new statute was introduced, then other areas of mens rea should be taken into account, like provocation, the Homicide Act 1957 has an impact on intention and was written at a time when the penalty for a murder conviction was much more serious (the death penalty) so mens rea was taken into a much broader context in order to save those who had a more distorted view of the crime, maybe a statute should be introduced laying down at least a minimum of more modern principles of intention and leaving certain areas of the law as they are now, a mix of both the present definition and a new contemporary ideal of intention which would reflect are society and culture.