#15621 - Mens Rea Short - Criminal Law

MENS REA

NB: MR does not equate to moral guilt (consider mercy killers / the agent in Yip Chiu-Cheung [1995])

Scale of MR: intention recklessness negligence.

INTENTION

Starting point (current law): Courts have been clear that in most cases intention should be given its ordinary meaning —in exceptional cases, the jury may find intention if a result was virtually certain to occur and the defendant realized it was virtually certain to occur.

Core meaning of intention: ordinary meaning of the word

• Moloney [1985]: M and S (his stepfather) got drunk at a wedding and argued over who could load and fire a gun more quickly. M loaded quicker and S challenged him to shoot. M fired wildly and killed S. M was convicted of murder. Lord Bridge: “The golden rule should be that … the judge should avoid any elaboration or paraphrase of what is meant by intent … unless the judge is convinced that, on the facts and having regard to the way the case has been presented to the jury … some further explanation or elaboration is strictly necessary to avoid misunderstanding.”

• Courts have therefore avoided a hard / fast definition —core meaning is taken as: D intends a consequence of his action if he acts with the aim / purpose of producing that consequence. High standard because need to prove beyond reasonable doubt.

Intention vs foresight:

• The HL has made it clear in a number of cases that foresight of a consequence is not the same as intention, but it is evidence from which a jury may infer intention. In Moloney Bridge said: “foresight of the consequences, as an element bearing on the issue of intention … belongs, not to the substantive law, but to the law of evidence … A man is presumed to intend the natural and probably consequences of his acts … knowledge or foresight is at the best material which entitles or compels a jury to draw the necessary inference as to intention.”

• Hancock and Shankland [1986]: H+S were striking miners who pushed a concrete block off a road bridge, killing the driver of a taxi carrying a miner to work. They did not think they were pushing the block over the lane carrying the taxi and intended only to frighten / block the road. CA: applied Bridge’s dicta in Moloney to find the D’s guilty of manslaughter (no intent for murder).

Intention vs motive:

• These are quite different. Bridge in Moloney: A man who boards a plane to Manchester, desiring to escape capture in London and indifferent to his destination, still intends go: “By boarding the Manchester plane, the man conclusively demonstrates his intention to go there, because it is a moral certainty that that is where he will arrive.” Motive is relevant as evidence of intent.

Borderline cases of intent: Woolin test

• Test: should only be used in unclear cases. Has two elements for murder: (i) only if death / GBH was a virtually certain consequence of D’s actions, and; (ii) D foresaw this was so, can the jury infer intent.

• Woolin [1999]: W lost his temper and threw his 3-month-old son onto a hard surface, killing him. Issues was whether W had intention to cause serious harm. HL (Lord Steyn): courts should continue to use the Nedrick [1986] model (test stated above). On this test the proper conviction in Woolin was for manslaughter.

• Issues after Woolin:

  • If the test is satisfied, must the jury find intention or may they? Mirfield vs Sir John Smith debate. Important, because if Smith is right, and the jury must infer, then intention is legally foresight of virtual certainty.

    • Resolved in Matthews & Alleyne [2003]: M and A were convicted of murder. V was attacked after leaving a club and thrown off a high bridge into a wide river. J drowned. Evidence that J told M+A he could not swim. Issue was as to Woolin direction (substantive law or rule of evidence). CA:jury may find intent, but don’t have to. However, in many cases satisfying the test would make the inference irresistible:

  • Questions over the first limb: the belief in virtual certainty is not enough, it must actually be a virtual certainty. Can have odd results: e.g. intention can’t be proved because unbeknownst to a bomber, a plane has a device allowing it to land even if bomb goes off in hold. So Prof. Allen argues that we should only need to show that D foresaw the result as virtually certain.

  • Does Woolin only apply to murder? Hasn’t been resolved yet—only considered in murder cases.

• Difficulties of Woolin test in case law:

  • Re A (Children) [2001]: conjoined twins (Mary and Jodie) will both die unless an operation is performed. If the operation is performed, only M, the weaker, will die. Doctors seek declaration that operation can go ahead. Key question: do they have murderous intent because they appreciate the virtual certainty that M will die? CA: can’t deal with this as an omission (definitely an act); Walker suggests that it is not murder due to doctrine of necessity.

Intoxication and intent: the jury should consider intoxication part of the evidence: (i) if the drunk D had as his purpose the result, then he intended it: Majewski: “drunken intent is still intent”; (ii) if drunk D lacked intent, he is not guilty of an intention based crime, but may be guilty of a recklessness based crime. Moloney [1985]: good example of how law operates: intoxication made M’s story more believable to the jury. Evidence from which they could infer lack of intent.

RECKLESSNESS

Test is now governed by Cunningham [1957]:

1. The defendant was aware that there was a risk that his or her conduct would cause a particular result;

2. The risk was an unreasonable one for the defendant to take.

Element 1: aware of the risk

Cunningham [1957]: C broke a gas meter in a house (in order to steal the contents). The broken pipe leaked gas, which endangered the life of a woman in the neighbouring house. Byrne J: test is whether “the accused has foreseen that the particular kind of harm might be done and yet has gone on to take the risk of it.”

Two points can be made about this:

1. Must show only that D has foreseen a risk, not that the risk be a likely consequence of his actions.

2. Question is whether D foresaw the risk, not whether the risk was obvious or would have been foreseen by a reasonable person —this is subjective recklessness. On this, note the following:

Stephenson [1979]: D, a schizophrenic, lit a fire in a haystack, destroying it. He didn’t realize, due to his illness, that lighting a fire was a risk to the haystack. CA: although the risk was obvious and most people would have foreseen it, the D didn’t and so was not Cunningham reckless. Court emphasises that the question isn’t whether D could have foreseen the risk —point is that he didn’t.

Stretching Cunningham:

• Parker [1977]: P had a bad evening: he overslept on the train, missed his stop, then tried to phone for a taxi. The phone didn’t work, so he smashed down (and damaged) the handset. Lane LJ: fined for criminal damage. P claimed that he wasn’t aware his actions would damage the phone. Lane says he was aware he was dealing with a plastic handset and he was aware of the force he was using. if it is true that he didn’t know there was some risk of damage “he was, in effect, deliberately closing his mind to the obvious”, since “damage in these circumstances was inevitable.” Therefore, someone is reckless if they carry out “a deliberate act knowing or closing his mind to the obvious fact that there is some risk of damage resulting from that act but nevertheless continuing in the performance of that act.”

• The question that arises is whether this is Caldwell recklessness through the backdoor? It is noticeable that the CA here was willing to stretch recklessness to its limits in order to convict the D whom it regarded as blameworthy. Having a risk at the back of your mind is enough for Cunningham recklessness.

Element 2: risk was unreasonable: requirement is rarely in dispute — i.e. rare for the D to take a risk that a person will be injured and that risk to be a reasonable one to take. NB: requirement is objective; not relevant that D thought it was a reasonable risk.

Intoxication and recklessness: D who is intoxicated at the time of the offence and therefore failed to foresee a risk which they would have foreseen if they had been sober, will be treated as having foreseen a risk. Ds can’t therefore claim that they failed to foresee the risk because they were drunk.

Old law: Cladwell recklessness: two avenues: (i) D is aware of a risk, OR; (ii) there was an obvious and serious risk AND D failed to consider whether or not there was a risk. This is an objective test. NB: it only applied to property damage, so property got more protection than people.

• Caldwell [1982]: D set fire to a hotel where he worked. He claimed that he was so drunk it did not occur to him that there might be people there whose lives might be endangered. He plead guilty to being reckless as to property damage, but not to being reckless as to whether life would be endangered as a result. HL: D was guilty of both —his intoxication was irrelevant. Test above applied.

• The harshness of this position is illustrated by Elliott v C [1984]: mentally handicapped girl set fire to a garden shed —although she had failed to consider the risk, because it would have been obvious to a reasonable person, she was guilty of criminal damage (i.e. the question was not whether it would have been obvious to a person of her age / characteristics). Due to such results, the HL abolished Caldwell in the following:

• G and R [2004]: two boys (11 and 12) set fire to newspapers under a wheelie bin outside a supermarket. The...