Mens Rea

Question 1

Function of mens rea

Answer 1

• To determine the intention (state of mind)
• Establish Blameworthiness
• Distinguishes between more or less cuplable state of mind
• Identifies the correct offence for which a D should be convicted

Question 2

What does HLA Hart say about the mens rea

Answer 2

“The state society needs a moral license to punish”

Question 3

Why might MR not just mean intent or act

Answer 3

Lack of defence + AR can satisfy it

Question 4

Different states of mind/MR

Answer 4

• Intention
• Recklessness
• Knowledge/Belief
• Negligence
• Wilful
• SL

Quite generic but depends on the offence

Question 5

Subjective MR

Answer 5

• Subjective fault is assessed by reference to D’s state of mind
• Requires D’s wrongful conduct to be reflected in state of mind

Intention + Recklessness

Question 6

Objective MR

Answer 6

• Assessed by reference to the standards. Does not take into account what D actually thought but what he ought to have thought
• What we assume D thought

Negligence

Question 7

Intention

Answer 7

• It is a person’s intention that counts in criminal law (not motive)
• For example, (Mercy Killing) Even though D’s motive is to alleviate V, of their suffering, the aim of D is still to kill, regardless of the ulterior motive

R v Adams [1957] - D (a doctor) doctrine of double effect.

Question 8

R v Adams

Answer 8

Acting in a way that could cause victims death but also to alleviate pain and suffering

Point to the nicer intention

Question 9

Direct intention

Answer 9

A person intends a result if he or she acts in order to bring it about

Moloney
Ordinary meaning

Duff test (not necessary in problem questions) like “but for”

A.K.A aim

Question 10

Indirect Intention

Answer 10

Do not necessarily act to bring about the result

If D thought that the result was a virtually certain

Question 11

Virtual Certainty

Answer 11

Although it was not D’s objective, the result was

• For all intents and purposes inevitable
• D knew this

R v Woollin “virtual certainty” as a result of D’s actions

Question 12

Test for Indirect intention

Answer 12

1.) Type of intention requires consequence the virtual certainty of the D’s actions

2.) D appreciaetd/foresaw the consequeunces as a virtual certainty - Woolin allows some doubt here. If the act is virtually certain then the jury MAY find D intended the result. It is up to the jury to decided intention

Virtual Certainty - From Nedrick according to Thacker

Question 13

Matthews and Alleyne

Answer 13

2.) D appreciaetd/foresaw the consequeunces as a virtual certainty - Woolin allows some doubt here. If the act is virtually certain then the jury MAY find D intended the result.** It is up to the jury to decided intention**

Question 14

Why do people not like the elbow room in indirect intention and may finding D to intend that result as to whether there is VC

Answer 14

• Jury have too much autonomy to decide

Question 15

Problem Cases within Intention

Answer 15

Indirect intention gives scope for motive - R v Adams. Due to elbow room for intention

Steane - D charged with assisting the enemy during WW2, if he did not they would hurt his family. Intention? Yes but no. Courts did not find Steane liable. **Motive here sometimes plays reasoning in this scenario, not to assist the enemy
**

BUT as compared to Re v Cox

• Administered a drug as well but no double effect here. Courts said medication did not have another purpose
• Re A - Manchester conjoined twins. If doctrine of double effect.

Intention does not necessarily help explain the moral gap - Stean

Question 16

What happened in the case of Re A

Answer 16

In Re A (Conjoined Twins) [2000], the court had to decide whether it was lawful for doctors to separate conjoined twins, knowing that:

Jodie would survive if separated, but
Mary would certainly die.
The parents refused consent because they believed killing Mary was wrong.
The doctors sought a court declaration that separation would be lawful.

According to Ward LJ and Brooke LJ, the bad consequence (Mary’s death) wasn’t just a side-effect — it was inevitable and directly linked to the operation.

The operation was designed knowing it would kill Mary, because saving Jodie necessarily required Mary’s death.
Therefore, they couldn’t say: “We only intend the good (saving Jodie) and not the bad (killing Mary)”.

Question 17

Double Effect

Answer 17

You are allowed to perform an act with a good intention even if you foresee a bad side effect, as long as the bad effect isn’t intended.

Question 18

Summary of Intention for PQS

Answer 18

1. In 99% of cases the jury should be asked simply ‘did A intend the consequence or not?’
2. In 1% of cases, eg Woollin, they will need further guidance. They should be told that they can still find the consequence intended, although it was not the purpose of A’s action. If they think it was virtually certain to occur as a result of A’s action and A knew this. Foresight to a lesser degree of probability than certainty is not enough. This may be recklessness but not intention
3. The jury are left with the final decision. They are entitled, not bound, to find a consequence intended if it was foreseen as certain.

Question 19

Why do we need indirect intention

Answer 19

We need indirect intention - could easily be used as an excuse to say “oh I did not necessarily intend to kill”

• Think of the airplane case

Question 20

Should intent only mean purpose?

Answer 20

Should intent only mean purpose?
Ideal concept of a voluntary act (Kessler Ferzan, 2002)

The result was endorsed by the defendant (Pedain, 1999)

“We are the authors of evil when we aim to achieve it in a way we are not if we merely anticipate that evil coming about as a result of our actions” (Moore, 1997, p.409)

But It opens up a dangerous set of arguments: “Not my purpose to kill, but to get X’s inheritance.”

But we cannot act and then pick and choose those consequences we wish to be responsible for:

“We cannot evade responsibility for any foreseen consequence of our acts by the plea that we felt no desire for them, either for their own sake or as means to ulterior ends…” (Sidgwick, 1907, p.202)

Question 21

Is the ordinary meaning given to intent satisfactory?

Answer 21

Helpful intuitions (Pedain, 1999) or prejudices?

+ Plus confusion with virtual certainty and the scope of the jury

This also captures the evilness of choice instead of expanding it

It also only widens the scope of liability (indirect intention) and should we not be liable for our evil doings

Question 22

Test for Recklessness

Answer 22

• D aware of risk that his conduct would cause a particular result (subjective)
• Risk unreasonable for D to take (2)

Question 23

Element 1 of Recklessness

Answer 23

**R v Cunningham **- Subjective Foresight

(Did D foresee the risk?)

R v Parker - If one deliberately closes their eyes it still counts as foresight

Level of risk foreseen by D is irrelevant: Brady

D was aware of the risk that his conduct would cause harm

Question 24

Recklessness: Objective Form Criticism

Answer 24

Widely criticised:
Sir John Smith: “This decisions sets back the law concerning the mental element in criminal damage in theory to before 1861.” (1981)

Issues around autonomy, choice, agency and voluntariness

The direction created problems for the young, mentally disabled, and inexperienced.

Elliot v C [1983] 2 All ER 1005

Question 25

Is R v G wholeheartedly to be welcomed?

Answer 25

Despite issues with purely objective test, purely subjective test is also not the perfect answer: Example: D, who is thinking about other things, parks his car in a car park and, without checking to see if any other car is in the vicinity, opens his car door. V’s car, which close by suffers a serious dent. Current law allows for recklessness even when D did not foresee in conventional sense (see ‘in the back of D’s mind’), so why not allow for recklessness to be found when D was not aware of the risk due to D’s own fault? Most academic work will not promote a complete subjectivist or objectivist perspective, but looking for compromise (see Tadros insufficient regard to interests of others; Duff practical indifference to the interests which D’s actions threatened)

Question 26

Intention v Recklessness

Answer 26

**Recklessness**: Foreseeing a risk (whether that is a small chance or one that is very likely). **Intention: ** Purpose clearly different: not about risk at all. Foreseeing a virtual certainty: is about foreseeing.

Question 27

What are the issues with the objectivist approach of recklessness?

Answer 27

See critique of Caldwell in R v G

Question 28

What are the issues with the subjectivist approach?

Answer 28

Very easy to satisfy Cunningham recklessness We see the courts trying to limit its scope in situations such as Parker, but wasn’t the meaning of Cunningham recklessness stretched in Parker in order to convict D?

Question 29

Alternative approaches?

Answer 29

Duff’s practical indifference: Duff (1990) characterises recklessness as requiring the attitude of indifference; "practical indifference" may be manifested by an agent's unawareness of risk as well as by an agent's awareness of risk. But limitations to alternative approaches, such as White (1991) pointing out that there is an element of awareness of possibility of a risk for indifference. One cannot be indifferent if one is unaware of the risk.

Question 30

Test of negligence

Answer 30

Standard increases to take into account specialist skills or knowledge but does not decrease McCrone v Riding [1938] 1 All ER 137 – Court did not take account of D’s inexperience as a driver R (RSPCA) v C (Admin) – But age could be taken into account

Question 31

Is Negligence Mens Rea?

Answer 31

“Since ‘negligence’ implies a failure to do what ought to have been done, it is therefore more than inadvertence, it is culpable inadvertence” Professor HLA Hart “What is crucial is that those whom we punish should have had, when they acted, the normal capacities, physical and mental, for doing what the law requires and abstaining from what it forbids, and a fair opportunity to exercise these capacities.” H L A Hart, Punishment and Responsibility (1968). English Criminal Law’s response to Hart: does not take into account D’s level of experience and skill if it’s lower from the reasonable person