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Mens Rea Notes

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Mens Rea _______________________________________________________

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: o

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

o

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: o 1st degree murder = intention to kill/GBH with awareness of a serious risk of death o 2nd 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"

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