Men’s Rea pt.2 : lesson 5 Flashcards
(16 cards)
What is subjective recklessness?
When the defendant is aware there is a risk of prohibited consequence but takes risk anyway
Where does the explanation of subjective recklessness come from?
Cunningham 1957
- defendant tore gas meter from wall of empty house
- gas seeped into house next door where woman was affected
- charger with offence against the person act 1861 found not guilty as didn’t realise risk
How do you test for recklessness?
1) subjective
2) objective
What is subjective testing?
Whether defendant new the risk
What is objective testing?
Whether ordinary person would know the risk
- 1982-2003 defendant could be found guilty even if they didn’t realise risk (Metro police v Caldwell 1981)
What are strengths of subjective recklessness?
- makes defendants who didn’t know risk not liable
- defendant having mens Rea is firmly based on subjective test
- improvement in law
Which case study shows subjective recklessness is an improvement in law?
Elliot v C
- 14yr old girl with learning disabilities spilled inflammable liquid on shed floor and dropped match
- charged under Criminal Damage Act for reckless arson
- found not guilty as she didn’t know risk
What are criticisms of subjective recklessness?
- unfair to victims & families
- defendants can easily avoid liability
- conflict between public policy & legal principle
What is negligence?
failure to meet standards of reasonable person
Negligence has a lower level of fault, what are the exceptions?
- Road Traffic Act 1988: driving without care
- R v Adomako: one form of manslaughter can be committed by gross negligence
What is transferred malice?
Defendant can be guilty if intended to commit crime against different victim
Which case study is an example of transferred malice?
Latimer 1886
- men were arguing in pub when one of them tried to hit the other with his belt
- hit woman next intended victim and severely injured her
- charged with Offence against the persons act
What is another case study is an example of transferred malice?
Gnango 2011
- two men were arguing and then had a shoot out
- other man killed passer-by
- gnango convicted of her murder as he aided and agreed to shoot out
Which case study is an example of transferred malice not being involved?
Pemblton 1874
- stones thrown at people he was fighting with
- hit and smashed a window
- not guilty as malice wasn’t transferred onto a person
What is a continuous act?
When act continues mens Rea will be present
Which case study shows a continuous act?
Fagan v Metropolitan
- police told defendant to park by the kerb
- Fagan accidentally ran over officers foot
- when asked to move off his foot be refused several times
- was convicted of assult on a police officer
