Mens rea

Question 1

Intention

Answer 1

R v Moloney: direct intention; should be given its ordinary meaning
R v Woollin: indirect intention; “a result foreseen as virtually certain is an intended result”
R (Nicklinson) v MoJ: “a doctor commits no offence when treating a patient in a way which hastens death, if the purpose of the treatment is to relieve pain and suffering” (Lord Neuberger)
Horder: this gives the jury moral elbow room to decide whether D deserves to be convicted- good thing (?)
W. Wilson: concerned about the discretion this gives juries- “whether someone has committed murder is not a matter of opinion”

Question 2

Recklessness (current law)

Answer 2

R v Cunningham: “foresight of risk and the unjustified taking of it anyway
R v Parker: D smashed down telephone handset; D was “deliberately closing his mind to the obvious” and that is “equivalent of knowledge”
S. Gardner: should Ds who are so angry or self-absorbed that they do not notice the risks they are posing to others be acquitted?
White: D cannot be blamed for being indifferent to other people’s welfare if they were not aware they were at risk of bring harmed
R v G and R: re-confirmed that this is the law (departing from Caldwell; “it is neither moral nor just to convict a defendant (least of all a child) on the strength of what someone else would have apprehended if the defendant himself had no such apprehension” (Lord Bingham)

Question 3

Recklessness (now abolished law)

Answer 3

R v Caldwell: D aware of the risk OR there was an obvious and serious risk and they failed to consider whether or not there was a risk
J.C. Smith: called Lord Diplock’s reasoning “pathetically inadequate”; “This decision sets back the law concerning the mental element in criminal damage in theory to before 1861”

Question 4

Negligence

Answer 4

If D has behaved in a way in which a reasonable person would not, then they are negligent
R v Adomako: in relation to manslaughter, D’s negligence must be ‘gross’ (really bad) for there to be a conviction
M. Moore: opposes the use of negligence in criminal law; a single negligent act does not manifest a careless disposition, might be an accident or forgetfulness
H.L.A. Hart: supports its use; D should be liable if, given their mental and physical capabilities, they had the capacity to see the risk

Question 5

Transferred MR

Answer 5

R v Gnango: MR to kill B can be transferred to the AR of killing C, creating the offence of murder
R v Pembliton: cannot transfer MR to kill B to an AR to damage C’s property
Attorney-General’s Reference (No.3 of 1994): “double transfer” is impermissible

Question 6

Coincidence of AR and MR

Answer 6

R v Meli: as long as the act performed with MR and the AR could be described as part of one transaction, D can be convicted
Fagan v Metropolitan Police Commissioner: D’s initial act (driving over the foot) can be seen as an act which is still continuing at the point in time when MR arises

Question 7

Correspondence principle

Answer 7

Requires MR to match the AR
J. Gardner: denies it has ever been a part of the law; all strict liability offences breach it, of the OATP only s18 complies with it
Tadros: argues for the ‘proportionality’ principle; D only needs to foresee an injury proportionate to the AR

Question 8

Motive in criminal law

Answer 8

J.C. Smith: argues it’s irrelevant
Lynch v DPP: D still found to intend to commit assault, even though his motive was to avoid being killed himself
Norrie: motive is the driving force behind intention and can help establish it