#17263 - Mens Rea Fault - GDL Criminal Law

Intent, Recklessness, Negligence and Strict Liability

Legal fault must be distinguished from moral or factual fault

• R v Kingston [1994] – Paedophilically inclined man’s drink spiked. Committed indecent assault. CA held not morally blameworthy. HoL held this was irrelevant, its about legal fault.

With ‘malice’ means either intention or recklessness (R v Cunningham, Lord Byrne)

Three types of intent:

• Direct Intention (most murder cases): aim/desire/purpose of defendant to kill or seriously injure.

• Oblique Intention: intend to bring about consequence A, as a concomitant of that consequence B occurs (i.e. the victims death) – R v Wollin.

  • Glanville Williams: “you see it out of the corner of your eye.”

  • We are close to a substantive definition, but not there absolutely - still an autonomous decision by the jury.

• Ulterior Intention: an additional aspect to the mens rea element of a crime that represents intention to create some additional effect – relevant in Buglary

Hyam v D.P.P. [1975] – ex girlfriend poured petrol through letter box and ignited it with matches and newspaper. Did not alert anyone. Two daughters died. Trial judge directed that for intent the jury must be satisfied that it was “highly probable that this would cause (death or) serious bodily harm.”

• Appealed to HoL on basis that high probability/foresight was not sufficient to infer intent, only evidence for intent. Conviction upheld (3-2)

• Lord Hailsham's dissent “I do not believe that knowledge or any degree of foresight is enough.”

R v Moloney [1985] – D’s grandparents ruby wedding anniversary. Who can load a shotgun faster? Both drunk. Pulls the trigger without realising it was aimed at his grandfather. Trial directed jury on oblique intent.

• HoL substituted murder for manslaughter. Lord Bridge’s golden rule: “the judge should avoid any elaboration or paraphrase of what is meant by intent, and leave it to the jury's good sense”

• Lord Bridge’s test for oblique intent in murder:

  • 1) Was death or serious injury a natural consequence of the actions.

  • 2) Did the defendant foresee that consequence.

• Lord Bridge’s examples (obiter) of oblique intent:

  • Put a bomb on an aircraft and you intention is to claim on insurance? Or a bomb on an aircraft to garner attention for the organization.

R v Hancock [1986] – intent to frighten off non-striking miners from work. Launched concrete block of bridge killing driver. Lord Scarman criticized Lord Bridge – probability must also be considered.

R v Nedrick [1986] – appellant set love-rival’s house alight in the middle of the night killing one of the children in occupancy. Oblique intent.

• Lord Lane CJ’s key statement: not entitled to infer necessary intention unless death or serious harm was a virtual certainty and the defendant realised this.

R v Woollin [1999] – leading case on oblique intent – D threw his 3-month-old baby son on to a hard surface. The baby suffered a fractured skull and died, convicted of murder. Substituted for manslaughter in HoL

• Lord Steyn: affirmed intention to kill/GBH; Lord Bridge’s golden rule, and Lord Lane’s test.

• The test today: not entitled to infer necessary intention unless death or serious harm was a virtual certainty as a result of the defendant’s action and the defendant realised this.

• Also stated that ‘Where death or serious injury is virtually certain as a result then it is an intended result.’ (This is WRONG – see Matthew and Alleyne)

• Obiter - Lord Steyn considered terrorist example: Plant a bomb to raise publicity, bomb disposal expert is killed trying to diffuse it.

  • Steyn disagrees with Bridge that this is murder, as Lord Steyn argues it was not foreseeable as a virtually certain result.

• Criticised decision of Walker and Hayles (1990) – D charged with attempted murder after dropping V off third floor. D held liable. Lordships felt there was not a virtual certainty.

R v Matthew and Alleyne [2003] – D’s threw the victim into a river 25ft below where he drowned. Expected V to swim. CA upheld the conviction but Trial judged had misdirected on Woolin criteria.

• Woollin criteria is a rule of evidence: a jury direction which entitles a jury to find intent if the resulting death was virtually certain; it does not require a jury to find intent from virtual certainty.

  • Omerod: test therefore doesn’t matter as it is just down to the jury.

Law Commission 2006 Report: Murder, Manslaughter, and Infanticide

• Argues we should adopt the American system (murder one – intentional premeditated, murder two – intentional unplanned, voluntary and involuntary manslaughter).

• We ought to have two fault categories

  • One – intention to kill/GBH with awareness of serious risk of death.

  • Two – intention to cause fear of injury or death, aware that one’s conduct involves serious risk of death.

Westminster CC v. Croyalgrange. [1986] - Knowingly allowing a venue to be used as a sex establishment, and knowingly doing so without a license. This was a willful blindness. Held sufficient for liability.

Two types developed side by side:

• Cunningham Recklessness: subjective recklessness (through the eyes of the defendant)

• Caldwell Recklessness (per Lord Diplock): objective recklessness (the risk should have been foreseen by the reasonable bystander).

R v Cunningham [1957] – The defendant tore a gas meter from the wall in order to steal the money in the meter. This caused gas to escape. Escaping gas poisoned D’s future mother in law.

• CA held not liable for death: looking through the eyes of D, he had not consciously adverted his mind to the risk and proceeded regardless.

• D is only reckless where D is aware of an objectively unjustifiable risk and yet goes on to take it.

MPC v Caldwell [1982] – D got drunk, decided to take revenge on former employer by setting the hotel on fire while guests were inside. Question for CA was merely about voluntary intoxication and Criminal Damage.

• Lord Diplock took it as an opportunity to redefine recklessness in terms of damage

  • (1) he does an act which in fact creates an obvious risk of damage and

  • (2) he either has not given any thought to the possibility of the risk or has recognised the risk and has nonetheless gone ahead.

• Liable if you ought to have thought about the risk: However, this meant that those who were unable to meet this standard were still judged against it.

The Caldwell test was subsequently followed in:

• Elliott v. C (a minor) [1983] – D (14yo girl of low IQ) had started a firein a shed. Magistrates applied the test laid down in R v Caldwell but inferred that in his reference to ‘an obvious risk’ Lord Diplock had meant a risk which was obvious to the particular defendant.

  • Goff LJ with absolute misgivings found the girl liable as the Caldwell test was objective.

• R v Stephen Malcolm (1984) – 15yo threw petrol bomb to frighten a girl. Did not realise that if it had gone off it might have killed her. Followed Caldwell and Elliott – test was objective.

• R v Coles [1995] – D (15, low IQ), set fire to the hay whilst other children were in the barn. Found liable for arson again CA commenting they would not depart from objective test.

• CC of Somerset v Shimmen (1987)– D (martial arts expert) miscalculated the risk while demonstrating skill. Anticipated he would bring foot within inches of shop window, ended up breaking window. Guilty of criminal damage – there was objectively some risk.

R v G & R [2004] – now leading case on recklessness – two boys (11 & 12) lit a fire in a bin. Left assuming it would burn itself out. Fire spread and caused 1m of damage to nearby shop. Convictions quashed in HoL.

• HoL used 1966 Practice Direction to overrule MPC v Caldwell.

• Lord Bingham, subjective test must apply. Academic and judicial criticism had severly criticised Caldwell: it was “offensive in principle and apt to cause injustice”

• Lord Bingham’s Definition of Recklessness (for criminal damage) following Clause 18 of the Law Commission's Draft Criminal Code (1989), a person acts recklessly where:

  • (i) a circumstance when he is aware of a risk that it exists or will exist;

  • (ii) a result when he is aware of a risk that it will occur;

  • and it is, in the circumstances known to him, unreasonable to take the risk.

CA in A-G’s Reference (No 3 of 2003) [2004] held that the test in R v G should be of general application.

Related to specific crimes only.

• Road Traffic Act 1988, section 3: Driving without due care and attention, or without reasonable consideration

• Rape under Sexual Offences Act (2003): Lack of a reasonable belief in all of the circumstances that the claimant consented.

• Bigamy

A strict liability crime: on one element of the conduct (actus reus) of the crime there is no requirement to prove fault (mens rea).

• The Blair government created over 3,000 of such crimes.

R v Prince (1875) – man reasonably believed that girl was at least 18 when he took her out of care of his father. Held that this was a strict liability offence – reasonable belief was no defence.

R v Warner [1969] – question of what possession means for liability.

• If someone has put something into your pocket and you don’t know wat it is: are you then in possession of it. Court held it depends on the nature and quality in question:

  • If you think it is camera film and it turns out to be heroin then you are genuinely mistaken

  • If you think it is aspirin and it turns out to be heroin you are strictly liable for possession.

Sweet v Parsley [1970] – school...