Lecture 2-MR

Question 1

Subjectivist Theory

Answer 1

rests on the principle that moral guilt, and hence criminal liability, should be imposed only on people who can be said to have chosen to behave in a certain way or to cause or risk causing certain consequences.

Question 2

Strict Liability Offences

Answer 2

Prosecution required to prove actus reus but in relation to one or more elements of the actus reus, there is no mens rea element to prove. This can lead to seemingly unjust outcomes.

Society of Great Britain v Storkwain (1986)

Question 3

Intention

Answer 3

Lord Bridge in Moloney [1985]
The golden rule should be that, when directing a jury … the judge should avoid any elaboration or paraphrase of what is meant by intent and leave it to the jury’s good sense to decide whether the accused acted with the necessary intent

Question 4

Intention- History of Cases

Answer 4

1.DPP v Smith [1961]
2.DPP v Hyam [1975]
3.Moloney [1985]
4.Hancock and Shankland [1986]
5.Nedrick [1986]
6.R v Woollin [1999]

Question 5

DPP v Smith [1961]

Answer 5

Objective Intention-
The main complaint is that the learned judge was there applying what is referred to as an objective test, namely, the test of what a reasonable man would contemplate as the probable result of his acts, and therefore would intend, whereas the question for the jury, it is said, was what the respondent himself intended.

Question 6

Criminal Justice Act 1967

Answer 6

Reversed the decision in Smith
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.

Question 7

DPP v Hyam [1975]

Answer 7

Reversed the decision of Smith
Subjective intention-still no distinction between motive and foresight.

Question 8

Moloney [1985]

Answer 8

The clear effect of Moloney was to narrow down the broad approach to mens rea adopted in Hyam. In the leading judgment Lord Bridge of Harwich observed in Moloney with the approval of all the Law Lords (at 925H):

“But looking on their facts at the decided cases where a crime of specific intent was under consideration, including Reg. v. Hyam [1975] AC 55 itself, they suggest to me that the probability of the consequence taken to have been foreseen must be little short of overwhelming before it will suffice to establish the necessary intent.”

Question 9

Hancock and Shankland [1986]

Answer 9

They also require an explanation that the greater the probability of a consequence the more likely it is that the consequence was foreseen and that if that consequence was foreseen the greater the probability is that that consequence was also intended.

Question 10

Nedrick [1986]

Answer 10

The jury should be directed that they are not entitled to infer the necessary intention, unless they feel sure that death or serious bodily harm was a virtual certainty (barring some unforeseen intervention) as a result of the defendant’s actions and that the defendant appreciated that such was the case.

Question 11

R v Woollin [1999]

Answer 11

[I]n the rare cases where the simple direction is not enough, the jury should be directed that they are not entitled to find the necessary intention, unless they feel sure that death or serious bodily harm was a virtual certainty (barring some unforeseen intervention) as a result of the defendant’s actions and that the defendant appreciated that such was the case.” (Lord Steyn)

Question 12

Jury Discretion

Answer 12

Re A [2001] and
R v Matthews and Alleyne [2003] confirm that a jury retain discretion to find intention if they wish but do not need to do so.

Question 13

Recklessness

Answer 13

Subjective v Objective Recklessness

Question 14

Subjective Recklessness

Answer 14

Cunningham [1957]

(1) An actual intention to do the particular kind of harm that in fact was done; or (2) recklessness as to whether such harm should occur or not (i e, the accused has foreseen that the particular kind of harm might be done and yet has gone on to take the risk of it).

Question 15

An alteration

Answer 15

Parker [1977]

A man is reckless in the sense required when he carried out a deliberate act knowing or closing his mind to the obvious fact that there is some risk of damage resulting from that act but nevertheless continuing in the performance of that act.

Does not require the foreseeability of the risk by the D.

Question 16

Objective Recklessness

Answer 16

Metropolitan Police Commissioner v. Caldwell [1982]

(1) he does an act which in fact creates an obvious risk that property will be destroyed or damaged and (2) when he does the act he either has not given any thought to the possibility of there being any such risk or has recognised that there was some risk involved and has nonetheless gone on to do it.

Question 17

Objective Recklessness Consequences

Answer 17

Elliott [1983]
The defendant, who was just 14 years old and of low intelligence, spent the night out. At 5 a.m. she entered a wooden garden shed in which there was a bottle of white spirit. She poured the spirit on the floor and set it alight. The resulting fire immediately flared out of control, the defendant left the shed and the shed with its contents was completely destroyed. She was charged with arson, contrary to section 1 (1) of the Criminal Damage Act 1971

Question 18

Rejection of Caldwell

Answer 18

R v G [2003]
(i) a circumstance when he is aware of a risk that it exists or will exist; (ii) a result when he is aware of a risk that it will occur; and it is, in the circumstances known to him, unreasonable to take the risk.

Question 19

Transferred Mens Rea

Answer 19

If A shoots at B, intending to kill her, but misses and hits and kills C, A is liable for murder.

there are always two offences to consider:

an attempt to commit the intended offence; and

the full offence involving the harm that occurred.

Question 20

Transferred Malice Case

Answer 20

A-G’s Reference (No. 3 of 1994) [1998]

The accused’s intention to cause grievous bodily harm to the girlfriend can be transferred to the killing of the baby to create the offence of murder. The difficulty with this reasoning is that at the time of the stabbing the foetus was not a person in the eyes of the law.

Question 21

Temporal Coincidence of AR and MR

Answer 21

It is a general principle of criminal law that the requirements of mens rea and actus reus should coincide in time. So, for example, in a murder case the defendant must intend to kill or cause grievous bodily harm by doing an act which causes the death of the victim

Question 22

Exceptions to Concordance Rule

Answer 22

1.The defendant may have the mens rea at one point in time and then later (without mens rea) perform the actus reus
Thabo Meli v R. [1954]

2.The defendant committed the actus reus at one point in time (without the necessary mens rea), but at a later point in time he has the mens rea
Fagan v Metropolitan Police Commissioner

3.It is unclear when the actus reus occurred
Attorney-General’s Reference (No. 4 of 1980)

Question 23

Thabo Meli v R. [1954]

Answer 23

The Privy Council held that they could properly be convicted of murder as their acts were part of a plan and so could be described as ‘one transaction’. As long as the act performed with mens rea and the act which constituted the actus reus could be described as part of one transaction then the defendant could be convicted.

Question 24

Fagan v Metropolitan Police Commissioner

Answer 24

If the act, as distinct from the results thereof, is a continuing act, there is a continuing threat to inflict unlawful force.

The ‘mens rea’ is the intention to cause that effect. It is not necessary that mens rea should be present at the inception of the actus reus; it can be superimposed on an existing act.

Question 25

Attorney-General’s Reference (No. 4 of 1980)

Answer 25

The Court of Appeal held that as long as the defendant had the necessary mens rea at the time of each of the possible acts that caused the death he could be properly convicted of murder or manslaughter

Question 26

Substances

Answer 26

Where the defendant has voluntarily taken a substance and is aware that the substance is alcohol or an illegal drug then they are voluntarily intoxicated. This rule even applies where the defendant thought they were taking a low-alcohol drink.

Question 27

Voluntary v Involuntary

Answer 27

Similarly, a person who was forced to drink alcohol or take drugs against their will would be involuntarily intoxicated. A person who is addicted to drugs or alcohol is treated as voluntarily taking the substances, unless they can show they had no control at all over taking them

Question 28

Legal Substances

Answer 28

If the defendant is taking a lawful substance, they are voluntarily intoxicated if they are aware that the substance would have this effect on them. In the case of medicine prescribed by a doctor the defendant will be voluntarily intoxicated if they took the medicine in a way not prescribed by the doctor (e.g. by exceeding the stated dose).

Question 29

Case

Answer 29

In Hardie, the D was given some out-of-date valium tablets. He was told that the tablets would calm his nerves and not impair his awareness or self-control. In fact, he became intoxicated and caused a fire. He was held to be involuntarily intoxicated. The judgment does not make it clear whether the test is that the defendant is voluntarily intoxicated if he knew the substance was intoxicating, or whether the defendant ought to have known that the substance was intoxicating.