the fault element - mens rea

Question 1

What are the two main types of mens rea?

Answer 1

1. Subjective fault: D’s actual mental state (intention/recklessness).
2. Objective fault: Judged by a reasonable person’s standards (e.g., negligence).

Question 2

How is direct intention defined?

Answer 2

D’s purpose or aim to bring about a consequence (e.g., shooting to kill).
- wants something to happen
- makes it happen

Key Case: R v Mohan [1976]

Rule: Intention requires a “decision to bring about the prohibited consequence.”

Controversy: Courts avoid rigid definitions (Nedrick).

Question 3

What is the Woollin test for oblique intention?

Answer 3

Jury may find intent if:

1. Death/GBH was a virtual certainty, AND
2. D appreciated this fact.

Key Cases:
R v Woollin [1999] (throwing baby = virtual certainty of harm).
R v Matthews & Alleyne [2003] (pushing victim into river = intent inferred).

Question 4

What is the Cunningham test for recklessness?

Answer 4

D must:

1. Foresee a risk, AND
2. Unjustifiably take that risk.

Key Cases:
R v Cunningham [1957] (gas theft → foreseeable harm).
R v G & R [2003] (overruled Caldwell; restored subjective test).

Question 5

Why was Caldwell recklessness problematic?

Answer 5

It used an objective test (ignored D’s actual foresight), harshly penalizing:

• Children (Elliott v C [1983] – 14yo arsonist).
• Those with limited capacity (R v Stephen Malcolm [1984] – 15yo petrol bomber).

Question 6

How does probability affect intention vs. recklessness?

Answer 6

• Intention: Virtual certainty (Woollin).
• Recklessness: Lower threshold – mere foresight (Cunningham).

Question 7

What is the “golden rule” on jury directions for intention?

Answer 7

Judges must not define intention rigidly (*Moloney *[1985]) – juries apply common sense.

defining it may complicate the idea of intention as it is a pretty standard idea, therefore defining it may lead to inconsistent rulings.
although critics say: not justifying it also leads to inconsistency (Law Com. No. 304 recommends codifying definitions).

Question 8

Can intoxication negate mens rea?

Answer 8

Only for specific intent crimes (e.g., murder → manslaughter) if it prevents intent (Majewski [1977]).

Question 9

How do motive and emotion interact with mens rea?

Answer 9

Irrelevant to guilt (Hyam), but may mitigate sentencing (e.g., Hancock & Shankland [1986] – striking miners).

Question 10

What is the case for subjective awareness e.g. sleepwalking?

Answer 10

Burgess [1991]