Mens Rea

Question 1

What is Mens rea?

Answer 1

The guilty mind, it is the mental element of criminal liability based on intent and not motive or reason

Question 2

What is the exception for establishing mens rea?

Answer 2

Strict liability crimes as mens rea doesn’t need to be proven

Question 3

What are the types of mens rea?

Answer 3

• Direct intent
• Oblique intent
• Subjective recklessness
• Negligence
• Transferred malice
• General malice

Question 4

What was held in R v Mohan?

Answer 4

The conviction of sexual assault was overturned on appeal and it was established that specific intent is:
“The decision to bring about the prohibited consequence, whether it was desired or not”

Question 5

What is direct intent?

Answer 5

The defendant intended the specific consequence to occur

Question 6

What is oblique intent?

Answer 6

The defendant did not intend the desired outcome

Question 7

How can oblique intent happen?

Answer 7

Missing the target
A domino effect

Question 8

What is ‘foresight of consequences’?

Answer 8

The consequence must be virtually certain and the defendant could foresee the result

Question 9

What is the starting point for foresight of consequences?

Answer 9

S.8 Criminal Justice Act 1967

Question 10

What was held in R v Moloney?

Answer 10

Conviction of murder was substituted for manslaughter and was held that foresight of consequences is only evidence of intent and not actually intent

Question 11

What did Lord Bridge ask the jurors to ask themselves in R v Moloney?

Answer 11

• Was the consequence a natural consequence of the defendant’s act?
• Did the defendant foresee the consequence as a natural result of the act?

Question 12

What was held in R v Hancock and Shankland?

Answer 12

Convictions of murder were quashed by the House of Lords and Moloney was overruled as there is no reference to probability

Question 13

What was held in R v Nedrick?

Answer 13

The court of appeal asks the jury to ask themselves:
- How probable were the consequences?
- Did the defendant foresee the consequences?

Question 14

What was held in R v Woollin?

Answer 14

Murder conviction was substituted to manslaughter as the trail judge’s use of “substantial risk” expanded the mens rea of murder.
- The House of Lords agreed with Nedrick, but added clarity in that it must be “virtually certain” and the defendant must appreciate this

Question 15

What are the issues with Woollin?

Answer 15

• The change from the word ‘infer’ to ‘find’ doesn’t change anything, and complicates things more as ‘infer’ is seen in S.8 Criminal Justice Act 1967
• Lord Steyn said that a “foreseen result, as vital certainty, is a foreseen result”

Question 16

What was held in R v Matthews and Alleyne?

Answer 16

Convictions were upheld and it was seen that R v Woollin is a rule of evidence

Question 17

What was held in R v Re A?

Answer 17

Doctors were able to lawfully operate on conjoined twins despite it being virtually certain that the weaker one will die

Question 18

What are three issues on the law of intention?

Answer 18

• In R v Re A, it was seen that foresight of consequences is intention, whereas in R v Matthews and Alleyne it is seen as a rule of evidence
• Intention is not defined in statute
• In R v Moloney and R v Hancock and Shankland, jurors needed to be directed on intention, though this was sorted in Nedrick

Question 19

What was the law commissions role in the definition of intention?

Answer 19

They defined it in a Draft Criminal Code 1989 Clause B.
Professor Sir John Smith criticised it as being ‘aware’ could be confused with recklessness or negligence, and a person could be held to intend a result they did not intend.
- Law Commission made a new report in 1993, though it was never implemented

Question 20

What is subjective recklessness?

Answer 20

Defendant knows there is a risk of consequences happening but decides to take the risk anyway

Question 21

What was held in R v Cunningham?

Answer 21

The defendant was not guilty as he had not intended to cause the harm, nor had realised the risk

Question 22

What was held in R v Savage?

Answer 22

Malicious is doing something intentional or with subjective recklessness about the risks involved

Question 23

What crimes are sufficient for recklessness?

Answer 23

• Assault and battery
• Assault occasioning ABH (S.47 OAPA 1861)
• Malicious wounding (S.20 OAPA 1861)

Question 24

What was previously objective recklessness?

Answer 24

An ordinary person would’ve realised the risk, a defendant is guilty even if they didn’t know the risk

Question 25

What was held in MPC v Caldwell?

Answer 25

A person is reckless where:
- He creates an obvious risk
- He does act when not giving any thought of there being a risk

Question 26

What was held in R v G and Another?

Answer 26

The House of Lords overruled Caldwell:
“A person acts recklessly (S.1 Criminal Damage Act 1971) when: aware of the risk or future risk, and knows it is unreasonable to take the risk but does it anyway”

Question 27

What are the advantages of subjective recklessness?

Answer 27

• People take more responsibility
• No longer makes defendant’s liable when they are unaware of the risk, like in Elliott v C where a 14-year-old with learning difficulties was guilty because a ‘reasonable adult’ would’ve known the risk

Question 28

What are the disadvantages of subjective recklessness?

Answer 28

• No sufficient protection for innocent public
• Takes characteristics into account and contradicts law on defences of duress and loss of control

Question 29

What is negligence?

Answer 29

A failure to meet the standards of a reasonable person.
This does not impose criminal liability

Question 30

When would negligence impose criminal liability?

Answer 30

• Gross negligence manslaughter
• Statutory offences

Question 31

What was held in R v Adomako?

Answer 31

Convictions of gross negligence manslaughter were upheld as there was a failure to meet the standards of a reasonable person

Question 32

What is transferred malice?

Answer 32

The defendant intended to commit a similar crime, but against a different victim

Question 33

What was held in R v Latimer?

Answer 33

The man was liable for injuries inflected on the woman, as the mens rea used to harm the man is transferred to the woman

Question 34

When may the defendant not be guilty in transferred malice?

Answer 34

When the mens rea is for a different type of offence

Question 35

What was held in R v Gnango?

Answer 35

Transferred malice applied to Gnango as he aided an abetted the attempted murder on himself, causing the shooting of the innocent passerby

Question 36

What is general malice?

Answer 36

The defendant doesn’t have a specific victim in mind, the defendant’s mens rea applies to the actual victim

Question 37

What is coincidence?

Answer 37

Both actus reus and mens rea must be present at the same time for there to be criminal liability

Question 38

What was held in Thabo Meli v R?

Answer 38

The defendant’s were guilty of murder as the mens rea and actus reus were combined in a series of acts

Question 39

What was held in R v Church?

Answer 39

Convictions of manslaughter were upheld, there was both actus reus and mens rea for manslaughter

Question 40

What is a continuing act in coincidence?

Answer 40

When the actus reus is a continuing act, at somepoint whilst the acts is ongoing the defendant must have mens rea

Question 41

What was held in Fagan v MPC?

Answer 41

The Court of Appeal held that once Fagan knew his car was on the officer’s foot, he had the mens rea as the actus reus was still continuing