#3597 - Mens Rea - Criminal Law

• MR is the guilty mind. Note that it is not necessarily a moral/culpable judgment, and there can be involuntary MR e.g. drugged paedophile in Kingston.

• There are many MR states of mind: intent, recklessness, knowledge, suspicion, negligence, wilfulness, malice etc.

Intention

• Direct intent – It was D’s purpose/aim to bring about the AR.

• Oblique intent – The AR was a necessary by-product of D committing his offence, although it was not his purpose.

• Intent is a subjective concept and must be judged according to what D wanted to happen or foresaw happening (s.8 Criminal Justice Act 1967):

  • D will intend something if it was his purpose to bring it about. Similarly, a jury may use as evidence of intention that D foresaw the result of his act as a virtual certainty and it was a virtual certainty. (Woollin, which affirmed the test in Nedrick)

    • Woolin - D threw his crying child at the cot but missed and he hit his head and died. This was the exact opposite of what D intended. Judge misdirected jury by saying that intention could be inferred from D’s realisation of a ‘substantial risk’.

    • Note: in Nedrick, the jury could ‘infer’ intent.

  • Lord Bridge disagrees with the leniency of the Woollin definition. He uses the example of a man who boards a plane to Manchester – the plane’s arrival in Manchester is a virtual certainty and so it should be seen as conclusive proof of intent to go there. Woollin is more generous.

  • Matthews and Alleyn highlighted this problem. Ds who had tossed a half dead V off a bridge who they knew couldn’t swim appealed. Claimed the judge misdirected because he equated the knowledge of virtual certainty to proof of intent, not just evidence. Rix LJ couldn’t see the difference.

• The Law Commission support codifying the Woollin test in statute.

Pedain – Intent and the Terrorist Example

• The terrorist example is used to show flaws in the definition of intent. It assumes that a terrorist wants to gain attention by planting a bomb in a public place, but giving enough warning that he thinks the place can be evacuated in enough time. It is, but a member of the bomb disposal squad is killed when trying to disarm the bomb. He may not have foreseen this death and if he didn’t he isn’t guilty of murder. Many see this as unacceptable.

  • German law involved D recognising and reconciling with himself the risk that he is exposing people to and liability follows.

• The other example is the terrorist who does want the bomb to explode but gets caught and then the bomb disposal person dies. He doesn’t intend to kill the bomb disposal expert. But Pedain says this shouldn’t matter – it is still murder. Can we use a ‘type of harm/transferred malice’ argument.

Kaveny – Inferring Intention from Foresight

• Two opposing views: one recognises that foresight is conceptually different from intention but that a jury may infer one from the other, and the other that foresight is form of intention.

• Neither is acceptable because no degree of foresight can be defined as intention, nor can it be the basis of any reliable finding of intention – so neither view is acceptable.

• Thus if we are going to allow foresight to be a basis for a murder charge, it has to be built in as a separate mens rea element instend of using Woollin.

Recklessness

• Current test for recklessness: D believes his conduct will result in a risk of harm, and that risk is not a reasonable one to take but he takes it (from Cunningham and reaffirmed in G)

  • Cunningham – D pulled a gas meter off a wall in order to gain illegal access to a house. It caused a gas leak and V was poisoned. No recklessness because risk was not foreseen.

• The test is subjective: there can be no liability where there is no risk foreseen.

  • G – two boys set fire to some papers underneath a bin, which then spread and caused 1m worth of property damage. They didn’t foresee the risk and so they could not be liable – no recklessness.

• There was a period from 1981 to 2003 where the test for recklessness was an objective one, imposed by Caldwell, but this was overruled in G. The test was fulfilled if the risk would have been obvious to an ordinary person. A reluctant application of the principle can be seen in:

  • Elliot v C (a minor) where a girl was charged with reckless property damage for throwing matches onto white spirit which destroyed the shed. The court accepted that she could not appreciate the risk of the damage, but such a risk would have been obvious to the ordinary person and Caldwell was applied.

• Note that in crimes where we are only concerned with D’s behaviour we may think of recklessness as an AR element – reckless driving. It is possible to intend to drive recklessly

Transferred Malice

• If D commits the MR of a crime, but causes the AR to an unintended target, he may still be held liable.

• “The criminality of the doer of the act is precisely the same whether it is [X] or [V] who dies” - Mitchell

  • This applies even in cases where, for example, D tries to shoot X but misses and instead shoots V. Clearly unintentional, but MR can be transferred to V.

  • Note: AR and MR must be of the same crime. For example, killing a man’s dog instead of the man (and vice versa) shows a situation in which malice cannot be transferred.

  • Latimer – D attempted to strike X with a belt. The buckle flew off, he missed X, but instead seriously injured V. He was found guilty of the harm to V, because the type of harm was the same.

  • Pembliton – D was in a fight and threw a stone, intending to hit a man. Instead he broke a window. The Court of Appeal reversed a conviction for criminal damage, because the type of harm was different to that intended.

  • AG’s Ref No. 3 of ’94 – D stabbed a pregnant woman, whose baby was born prematurely and died as a result. The Court of Appeal held him liable for murder. The House of Lords found that he was not guilty because malice could not be transferred twice – in this instance, from mother, to foetus, to child.

• • General malice – a defendant who is prepared to cause harm to one person is, by definition, a bad person. If, as a matter of bad luck, they injure somebody else, they should not be able to plead that bad luck as any sort of defence.

  • Horder says that outcomes are too remote to transfer malice if i) the victim was not the intended victim and ii) the victim was killed in an unexpected way, in a manner unforeseen by the defendant. For example, D aims to kill V1 by shooting him. He misses and bullet goes to a factory behind him and causes an explosion that kills V2. Under Horder’s principle, D is guilty of attempted murder of V1 and manslaughter of V2, but under current law this would be attempted murder and murder.

  Concurrence

  • Generally, AR and MR must occur at the same time.

  • The transaction principle: same series of events.

  • The causation principle: results can have many causes – we might argue that any event is a cause in a person’s death.

  • Fagan v MPC – D accidentally drove onto a police officer’s foot but didn’t move when he realised his mistake. The House of Lords found this to be a continuing act, and that the act of being on the officer’s foot was a continuing one – therefore AR and MR occurred at the same time. In reality, it criminalises omission.

  • R v Thabo Meli – Ds thought they killed V by beating him in a hut. They then threw him off a cliff. In reality he died from exposure at the bottom of the cliff. Ds claimed that MR and AR were not concurrent. The Privy Council found them to be inseparably in the same transaction and therefore guilt was found.

  • R v Le Brun – D struck his wife unconscious on a road. He dragged her to the side of the road and knocked her head. This caused death, not the strike. The court found that despite the time interval was irrelevant because the result was part of the same sequence of events, and the attempt at concealment strengthened the case for finding MR.

  Mistake

  • Mistake is not a defence. It is a negative of mens rea – surely a crime cannot be committed if there is no knowledge of the crime’s existence. There is no MR and therefore no crime. This usually only works where the law contains a complicating legal concept e.g. ‘property belonging to another’.

  • Mistake of fact:

    • English law says that we judge the defendant on the facts as the defendant honestly believed them to be, even if that was an unreasonable belief.

  • Morgan v DPP – V’s husband told D to have sex with V. He said she would struggle and seem like she wasn’t consenting, but to do it anyway because she was consenting. D did so. The law would have allowed him to be found innocent if his mistake was genuine, but the court was not content that it was.

  • Mistake of law:

    • Mistake of law is generally no defence. There may be exception in civil cases e.g. D thinks his divorce is final, but marries someone else when his divorce is not final. He commits the strict liability offence of bigamy.

  • Candy – D made coin shaped ice cubes and won money from fruit machines. He claimed that he had a barrister friend who said it was legal. He genuinely believed this. Still guilty.

  • Lee – D resisted arrested after being found over the limit, but he maintained that he legally was not and genuinely believed that. He was still guilty.

    Negligence

  • Unlike intention and recklessness, negligence is a totally objective standard – the risk is not a perceived/foreseen one.

  • Whether negligence is a form of MR is debateable, because the literal translation is that of the ‘guilty mind’.

  • If D has special knowledge (e.g. is a firearms expert) then a higher standard will likely be expected...