#14653 - Mens Rea - GDL Criminal Law

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Fault ingredients:

• Intention (eg murder)

• Intention or recklessness (eg non-fatal offences)

• Negligence (eg rape)

• Gross negligence (eg manslaughter)

• Knowledge/belief (eg handling stolen property)

• Strict liability (mala prohibit crimes)

Legal fault, not moral fault (per Lord Mustill in R v Kingston)

Intention

Subjective vs Objective

DPP v Smith

Policeman jumped onto the bonnet of the car to prevent D driving off with stolen goods – he drove off and police man killed – charged with murder

Held: objective test prevails:

• (first instance) direction based on reasonable man’s perception of foreseeability

• (CA) overruled and conviction substituted for manslaughter

• (HL) upheld murder conviction – confirmed objective test

Overruled by:

Criminal Justice Act 1967 S.8 “shall decide whether he did intend or foresee that result by reference to all the evidence”

Direct & Oblique Intents

Intention & foreseeability interlinked: a high foreseeability of death = intention as to that result

• Direct intent

• Oblique intent (foresight intent)

• Glanville Williams, not in your front-view mirror, but your side-view mirror

R v Moloney

D was drunkenly challenged to load and shoot a gun faster than V but he did so and V challenged him to pull the trigger. He alleged that he did not know it was aimed at V

Held: overruling the trial judge, this was a case of direct intent

• Oblique intent: D intends consequence A, but consequence B happens

• Transferred malice: D intents consequence A against X but it affects Y

Historical Development of Foresight

Hyam v DPP – foreseeability as ‘highly probable’ amounting to intention

D poured petrol through her love rival’s letter box and ignited it and drove off. Love rival managed to escape with her son but two daughters were killed

Held: (HL) 3:2 upheld the trial judge’s direction of “highly probable that this would cause (death or) serious bodily harm then the prosecution will have established the necessary intent”

R v Moloney (above) – foreseen natural consequence of act

Held: (HL) the Moloney Direction established: the golden rule per Lord Bridge is that intention should be left to the jury & not elaborated unless it is strictly necessary to avoid misunderstanding. In these rare cases the following apply:

1. Was the unlawful consequence (in this case death or GBH for murder) a natural consequence of D’s voluntary act?

2. Did D foresee that consequence as a natural consequence of his act?

Legal intention is different from a desire e.g. a fugitive getting on a flight to Manchester to escape does not desire to go to Manchester, but he has shown requisite intent for the act

R v Hancock and Shankland – Moloney direction misleading – must include degree of probability

D were miners of strike and threw lumps of concrete onto carriageway killing V, a taxi driver. Jury asked for clarification on foresight

Held: (HL) direction must include reference to probability. The greater the degree of probability -> the more likely it is to have been foreseen -> the more likely it was intended

R v Nedrick – virtual certainty

D poured paraffin through letter box and set it alight. V, a child, died. Trial held pre-Moloney

Held: (at first instance) ‘highly probably’ consequence of actions.

(CA) after reviewing Moloney and Hancock and Shankland reformulated the test for intention:

• The Nedrick Direction per Lord Lane CJ – where the simple direction is not enough they cannot ‘infer’ intention unless there is “virtual certainty” of the consequence & D appreciated that such was the case

R v Woollin – precedent today

D’s baby choked on food and D, angry at the cries, threw the baby in the general direction of the pram but he hit the wall and died – he disputed that he had intent to kill/GBH

Held: (HL) misdirection of ‘substantial risk’ of death/GBH, substituted conviction for manslaughter.

• Lord Steyn affirmed the golden rule per Lord Bridge & amended the Nedrick direction thus:

  • The Woollin Direction: jury entitled “to find” necessary intention only where they feel sure death/GBH was virtual certainty as a result of D’s actions & D appreciated that such was the case

  • Suggests that where D is virtually certain of death/GBH as a consequence of actions, he intends that consequence

R v Matthews and Alleyne

D threw V into a river and knew he couldn’t swim

Held: conviction for murder safe (virtual certainty) but emphasised this is an evidentiary direction – a matter of fact for the jury

• Law Commission 2004 Consultation Paper:

  • 1^st degree murder = intention to kill/GBH with awareness of a serious risk of death

  • 2^nd degree murder = intention to GBH/cause fear of death/GBH with awareness of a serious risk of death

Recklessness

Draft Criminal Code defines recklessness:

• As to circumstances - awareness of a risk that it exists

• As to results – awareness of a risk that it will occur and unreasonably takes that risk

Case-law has centred around subjective vs. objective awareness of risks:

Cunningham Recklessness

R v Cunningham

D ripped gas meter from wall to steal money from it – gas seeped through wall to partially asphyxiate his future mother-in-law. Charged with Offences against the Person administration of noxious substance – statute contains “maliciously…administer”

Held: overruling trial judge’s direction that malicious meant wicked, they construed it as pertaining either to intention or reckless fault element. Here D was not intentionally or recklessly administering a substance – he was not aware of the risk

W (a minor) v Dolbey

D shot V with an air rifle he believed to be unloaded – charged with malicious wounding under Offences against the Person Act

Held: following Cunningham, there had to be actual knowledge of a risk for an act to be reckless – here it was not

R v Richardson and Irwin

D, students, dropped V over a balcony during drunken horseplay

Held: the reasonable foresight of D sober, not a reasonable man, as the yardstick for knowledge of a risk

Caldwell Recklessness

MPC v Caldwell

D was drunk and started a fire in the hotel where he worked – he had a grudge against his employer – charged with criminal damage. Argued no subjective knowledge of risk due to intoxication

Held: per Lord Diplock, that a person is reckless as to property damage where:

1. An act which in fact creates an obvious risk of property damage

2. He has either:

   1. Not given any thought to the risk; or

   2. Given some thought to the risk but brushed it off

Known also as ‘inadvertent’ recklessness (Parker described as closing one’s eyes to an obvious risk)

In the 80’s this caused a split between Cunningham for offences against the person & Caldwell for offences against property

• R v Lawrence: use of Caldwell recklessness in reckless driving context (now replaced by death by dangerous driving Road Traffic Act)

• R v Reid: Lord Goff supports Caldwell recklessness in driving context, suggesting ignorance of a risk is on par with recognition and taking of a risk

Elliott v C (A Minor)

D of low intelligence & started a fire in a shed

Held: overruling the first instance decision which construed an ‘obvious risk’ per Lord Diplock to mean subjectively ‘obvious’, D was liable.

• Lord Gough: obvious disquiet about the application of Caldwell recklessness on non-normative defendants

R v R: a young boy found liable for throwing a petrol bomb against a property with no realisation of risk

R v Coles

15 year old D set hay on fire. Expert evidence suggested he lacked capacity

Held: unsuccessful challenge to Caldwell – liability found

• C Crosby: benefit to objectivity is that it punishes those who should have foreseen a risk, disadvantage that this will be affected by social value judgments & uncertainty

Lacuna to Caldwell Recklessness

Recklessness will not be found where D has considered a risk and concluded either:

• There is no risk of harm

• He has eliminated the risk of harm by his actions

R v Shimmen

Martial arts expert thought he would bring his foot within inches of a shop window but miscalculated

Held: this did not come under the lacuna because he had not eliminated the risk with his actions. This case also draws a distinction between:

• Risks which have social utility (less likely to be reckless when taking them)

• Risks which have no social utility (more likely to be reckless when taking them)

R v Merrick

D left cabling exposed when removing TV wire before he could make it safe. Charged with recklessly endangering life – he argued that he had eliminated the risk

Held: (CA) distinction between eliminating the risk before & after occurrence . Here steps were not taken before the risk materialised

Recklessness & Rape

DPP v Morgan

Ds charged with rape after they were told by their fellow RAF that his wife would be consenting but protesting to heighten her sexual arousal

Held: established the mens rea to rape of intent or recklessness as to consent. Intention would be negatived by an honest (subjective) belief in consent. Here they upheld convictions however as they found that no reasonable jury could have found the belief honest. Recklessness would be negatived by inadvertence following Cunningham, so Caldwell offered the only route for liability where there was an inadvertent D

• Home Office Sex Offences Review Team: recklessness in sex offences “should include lack of thought to consent; this can be described as “could not care less about consent” / the defence of honest belief in consent should include all reasonable steps available to the particular D

• Crosby:...