Mens Rea

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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...

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