MENS REA

SPECIFICATION

CONTENT

MR: fault; intention and subjective recklessness; negligence and strict liability; transferred malice; coincidence of AR and MR

GUIDANCE

direct and oblique intention, subjective recklessness, negligence and gross negligence, strict liability including the method used to establish whether an offence is a strict liability offence, transferred malice, coincidence of actus reus and mens rea

MENS REA

  • mental element of the crime

  • guilty mind - can change an innocent act into a guilty one

  • 3 types:

  • 1. intention (direct and indirect/oblique)

  • 2. recklessness

  • 3. negligence

DIRECT INTENTION

  • idea that a person will be guilty of crime if he intends to perform a criminal act is reasonably fair

  • direct intention- D’s ‘aim, purpose and desire’ to bring about the criminal consequence R V MOHAN

  • things that can make it more likely to be directly intended: use of weapon; motive; planning/premeditation; location of attack e.g part of body/vital organ; deliberate and vicious attack

INDIRECT INTENTION

  • when D’s aim is different to actual consequences

  • e.g is D intends to commit arson but another offence occurs, like murder, cant say he has a direct intent to kill

  • s.8 Criminal Justice Act 1967- it is reasonably forseen by the D that consequence would occur

  • DPP V SMITH: D stole from shop and V (PC) jumps on D’s bonnet, eventually falling off a dies. LP: No direct intention to kill or cause GBH, but there was an indirect intention as there was a high probability of death given the road was busy and he was zigzagging at speed.

  • R V WOOLIN: D holding baby (3 months), D gets irritated and throws baby resulting in head injuries. LP: Virtually certain of outcome of consequence from action. Court decided 2 part test: 1. Consequence is a virtually certain result of act; and 2. D knows that is is a virtually certain consequence

  • R V MATHEWS AND ALLEYNE: D’s took V to bridge knowing he couldn’t swim and left him, charged him with murder. LP: No direct intention, but it was virtually certain consequence and decided D’s knew it was virtually certain

RECKLESSNESS

  • considered a lower level of MR

  • subjective recklessness: D knows there is a risk of criminal consequence, is willing to take the risk anyway and takes it deliberately

  • requires looking at what was in D’s mind

  • leading case : Cunningham

  • R V CUNNINGHAM: D broke into house, damaging gas meter which then leaks into V’s house- V inhales and seriously injured. D charged administering a noxious substance. No subjective recklessness as couldn’t establish D knew risk. D not guilty. Definition of SR from this case.

  • R V G AND ANOTHER: 2 boys set fire to paper and threw under bin, spread and caused £1 mil damage. LP: following Cunningham now subjective test- what was in minds at time. Boys didn’t know that damage would be caused. NG. “stupidity is not enough to convict someone”

NEGLIGENCE

  • a person is negligent if they fail to meet the standards of the reasonable man

  • usually leads to civil liability not criminal

  • much lower level fault

  • 2 criminal offences:

  • 1. some statutory offences S. 3 RTA 1988: offence to drive without due care and attention

  • 2. gross negligence manslaughter: very high degree of negligence (R v Adomako)

TRANSFERRED MALICE

  • principle that D can be guilty if he intended to commit similar crime but against a different V

  • occurs when D’s MR is transferred from the intended V to actual V

  • person to person or property to property, not person to property

  • R V LATIMER: D tries to hit someone with belt. Misses and hits other. Same offence type. LP: Guilty- MR has transferred from intended V and offence was clearly of same type,

  • R V PEMBILTON: D throws stone at V, misses and hits window breaking it. Tried for criminal damage. LP: NG, MR not established as person to property- no transferred malice. Malice only transfer as long as MR same.

COINCIDENCE OF AR AND MR

  • ‘contemporaneity rule’

  • AR and Mr must occur at same time for liability

  • 2 elements must coincide

  • problem is there is a time lapse: AR before MR or MR before AR

  • courts have modified rule to make sure a series of linked acts or omissions can be treated as single continuing act

  • leading authority- Fagan

AR BEFORE MR

  • FAGAN V METROPOLITAN PC: D accidentally drives on policeman foot, asks to get off and D refuses. LP: coincidence- continuity act from AR; coincidence found when MR happens

  • R V MILLER: LP: Millers continued failure to do something about the fire amounted to a continuing act so coincidence found

MR BEFORE AR

  • R V THABO MELI: D’s take V to hut and beats them intending to kill- roll body off cliff, want to make it look accidental. LP: due to 3 acts that were separated court viewed it as one long continuing act. MR present throughout as D has set out to kill V. Guilty.

  • R V CHURCH: D took V in van, had sex and he beat her, thought he killed her so drops her off cliff, V dies of hypothermia. LP: due to 3 acts were 1 continuing act. Deeemed that MR continued as D had set out to attack her. Guilty

STRICT LIABILITY

MR isn’t required. D guilty if committed AR.

PHARMACEUTICAL SOCIETY OF GB V STORKWAIN: D (pharmacist) had allowed prescription drugs to be supplied on production of fraudulent prescriptions. Believed they were genuine- didn’t know. Conviction upheld (Medicine Act 1968) as it was a strict liability offence.

SWEET V PARSLEY: D rented out farmhouse to teens, police found drugs, D charged with ‘being concerned in the management of premises used for the purpose of smoking cannabis ’- but D didnt know. LP: Where an act of parliament doesnt make it clear whether it requires MR or not (no word in either way) the judge will presume that a criminal offence requires MR. Not guilty as court presumed the offence required MR.

CALLOW V TILLSTONE: Butcher sold meat he was told by a vet was safe to eat. Even though he had taken reasonable care and wasn’t at fault any way, it was strict liability offence.

CUNDY V LE COUQ- Mistake. D sold liquor to drunk person, but didnt know they were drunk. Strict liability. Guilty.

Only 3 strict liability in common law: public nuisance; criminal libel; outraging public decency

THE GAMMON TESTS

GAMMON (HONG KONG) LTD V A-G OF HONG KONG

Gave 4 factors that courts will consider when deciding whether the presumption of MR will not apply

  1. presumption can only be displaced if this is clearly, or by necessary implication, the effect of the words of the statute

  2. the presumption is particularly strong where the offence is ‘truly criminal’ in character

  3. presumption can only be displaced if the statute is concerned with an issue of social concern such as public safety

  4. strict liability should only apply if it will help enforce the law by encouraging greater vigilance to prevent the commission of the prohibited act