#3090 - Mens Rea - GDL Criminal Law

- Definition of a crime: per DJ Lanham

• actus reus: required act.

• mens rea: required state of mind – generally must coincide with actus reus.

• absence of defence

• - Mens Rea: terms.

  • intention

  • recklessness

  • dishonesty: relevant in some property offences

  • knowledge/belief

  • ‘malice’: meaning depends on context.

  Intention

  - Intention: e.g. Mens Rea for Murder – ‘malice aforethought’ (but misleading).

  • R v Vickers: intention to kill (express malice) or intention to cause GBH (implied malice).

    • GBH: really serious harm (DPP v Smith) or just serious harm (R v Saunders).

  - What does ‘intention’ mean?

  • Smith & Hogan: ‘direct aim or purpose’.

  • R v Moloney: no elaboration needed in most cases (per Lord Bridge).

    • subjective: what did d. actually intend to do.

  • motive distinguished from intent: motive irrelevant per se.

    • intent: what d. intended to do; motive: why d. intended to do it.

    • Chandler v DPP: individual can intend both their ends and the means through which they will achieve them immediate intent relevant for MR.

  - Indirect/oblique intent: consequence not d’s intention but inevitable side effect.

  • R v Nedrick (CoA) + R v Woollin (HoL): 2 stage test.

    • 1. outcome virtual certainty (objective test).

      • v. high bar: must be almost bound to happen, not just highly probable.

    • 2. defendant appreciates/foresees this (subjective test).

  • evidence, not definition: test satisfied jury may find d. intended to kill/cause GBH.

    • R v Matthews & Alleyn: explicit – just guidance to jury, not a definition of intent.

  • rare application: N.B. possible only in crimes of specific intent (intention only MR).

    • when jury ask for guidance.

    • where evidence that positive intention exists which has nothing to do with intention required for crime.

      • e.g. man sets fire to barn to kill horse, knowing that someone asleep in barn.

  Recklessness

  - Recklessness: e.g. Criminal Damage and Wounding or Inflicting GBH.

  • s1(1) Criminal Damages Act 1971: ‘without lawful excuse damages or destroys property belonging to another intending to destroy or damage any such property or being reckless as to whether any such property would be destroyed or damaged’

    • 2 forms of MR: prosecution can rely on intention or recklessness.

  • s20 Offences against the Person Act 1861: ‘unlawfully and maliciously wound or inflict any grievous bodily harm upon any other person’.

    • ‘malice’: intention or recklessness (in this context).

  - What is recklessness?

  • R v Cunningham: d. ‘foresees that the particular type of harm might be done and yet has gone on to take the risk of it’.

    • subjective: defendant must in fact foresee risk.

      • R v Caldwell (overruled): objective test applied – recklessness if reasonable person would have foreseen risk.

    • also – ‘malice’: must be read not as ‘wicked’ but as covering intent or recklessness.

  • R v G: aware of risk + in circumstances known to him, unreasonable to take risk.

    • subjective: jury can decide if they believe d. did not in fact foresee harm.

  • which test to use?

    • criminal damage: R v G

    • all other offences: R v Cunningham

    • but: in practice, outcome probably the same.

  Technical Issues

  - Transferred Malice: d. sets out to commit a crime, but commits another in error.

  • ‘malice’ in this context: ‘mens rea’; aka ‘transferred mens rea’.

  • possible recklessness: but not always.

  • R v Latimer: d. lashes out but hits wrong person intention could be transferred to new victim (because MR same).

  • but: mens rea must be the same (i.e. crime must be similar, just victim different).

    • R v Pembliton: d. throws stone to strike a person, but smashes window conviction for damage quashed (different MR – cannot be transferred).

  - Coincidence of Actus Reus and Mens Rea: must occur at same time/continuum of time.

  • R v Thabo-Meli: d. thought victim dead, then rolled him off cliff...