mens rea Flashcards
(18 cards)
direct intent - dolus directus
- focuses on the will or desire of the actor to bring about a certain result
- highest degree of intent
- goals that are not primarily desired but are understood as necessary means to the end goal count as direct intent
indirect intent - dolus indirectus
- actor knows their conduct will almost certainly bring about consequences that they do not desire or primarily aim at
- deals with he side- effects that the actor knows are almost certain to occur
test of failure= if the result does not happen does the actor consider their plans to have failed
conditional intent - dolus eventualis
- actor was aware of the possible side effects and decided to act nonetheless
- awareness risk
- acceptance of risk
- actor must endorse or come to terms with the result
conditional intent- risk awareness
- cognitive = awareness of risk
- volitional = taking the risk for granted
DE= defendant only needs to be aware of possible chance that the risk may materialise
- GSC 1988
NL= the degree of this risk must be considerable
- Dutch Supreme Court 2007- HIV case
conditional intent- acceptance
DE = leather belt case
recklessness
- conscious taking of an unreasonable risk
- does not require that the person takes the risk for granted
- person needs to be aware of the risk
- risk is assessed normatively
R v Konzani
caldwell recklessness test
- ## definition was extended to the failure to foresee an obvious risk
Negligence or culpa
conscious
- the actor could have foreseen a possibility of a consequence resulting from their conduct but relied on the idea that the result would not occur
unconscious
- actor does not consider consequence of action
was there a duty of care
negligence in England is always unconscious
subjective test for recklessness
Murder in England
Causing death of a human being with malice aforethought (motive and premeditation are not relevant)
S.1 (1) murder act 1965: life imprisonment
Voluntary manslaughter
Mens rea for murder but mitigating circumstances allowing partial defence –Coroners and justice act 2009
- Loss of self-control (due to fear of serious violence)
- Diminished responsibility (abnormal mental functioning)
involuntary manslaughter
- Mens rea for murder is lacking
Constructive manslaughter = unlawful act resulting in unintended death / mens rea of core offence
Gross negligence manslaughter = violation of specific duty of care
Gross negligent manslaughter
R v Adomako
- During operation an oxygen pipe was disconnected and the patient died
- Aneasthetist failed to notice the obvious signs
Honey v Rose
- Optometrist performs sigh test on 8 year old boy
- Fails to notice abnormalities in retinal images
- Boy dies 5 months later due to built up fluid in the brain
- There was a breach of duty but no GNM
- She was not actually aware of the problem but she was aware that there was a possibility something could be wrong if she didn’t perform the test
R v Rudling
- Duty of care which is reasonably foreseeable gives rise to a serious and obvious risk of death
- Foreseeability
- Reasonable person would have foreseen a serious and obvious risk
- Grossness
- Decided by the jury
Background of German murder offence
- Motives, means and aims are morally loaded
- Article was created during the nazi regime
- Before murder was defined as killing with consideration
- The distinction between manslaughter and murder stemmed from roman law which was too foreign for the nazis
Roland Freisler
- Criminal law should not be based on the wrongfulness of the act but rather perpetrator typologies
- Some people are innately evil
- Criminal law should embody what the people what/ popular sentiment
criticism of 211 GCC
- Definition born from nazi ideology which is in conflict with modern criminal law
- Application of qualifying circumstances is often arbitrary, problematic, vague and uncertain
- Insidiously = if you kill without stealth you are a coward
- Problemes illustrated by Marianne Bachmeier case
- Mother killed the person who murdered her daughter inside a courtroom by shooting him in the back- showing cowardice
Recklessness
- Taking an unjustified risk
- Subjective form of mens rea
- R v G
- Subjective test for all types of crime
- Abolished objective recklessness test
- R v G
R v Cunningham
The accused has foreseen that the particular harm might be done and yet has gone to take the risk of it
Caldwell recklessness test
Prosecuting for arson creating damage
1. Act creates an obvious risk
2. When one does the act they have not given any thought to the possibility of there being a risk or have recognized the risk and have gone on to do it
