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Mens Rea Notes

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This is an extract of our Mens Rea document, which we sell as part of our Criminal Law Notes collection written by the top tier of Oxford students.

The following is a more accessble plain text extract of the PDF sample above, taken from our Criminal Law Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:

Mens Rea

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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

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Direct intent - It was D's purpose/aim to bring about the AR.

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

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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): o 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. o 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. o 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.

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The Law Commission support codifying the Woollin test in statute. Pedain - Intent and the Terrorist Example

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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.

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o 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

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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.

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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.

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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

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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) o 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.

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The test is subjective: there can be no liability where there is no risk foreseen. o G - two boys set fire to some papers underneath a bin, which then spread and caused PS1m worth of property damage. They didn't foresee the risk and so they could not be liable - no recklessness.

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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: o 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.

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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

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