Mens Rea — Intention Recklessness And Negligence Notes

TOPIC 2 — CRIMINAL LAW —MENS REA

MR: the mental element of a crime.

Often suggested that MR plays the crucial role of ensuring that only blame-worthy defendants are punished for their crimes. Someone who causes another’s death by accident is not as culpable as someone who does so intentionally. It’s more complicated than this however; MR does not always correspond to moral guilt —e.g.:

• Mercy killers (at least morally ambiguous).

• The policeman who had the MR for conspiracy to import drug in Yip Chiu-Cheung [1995] despite doing so as part of a police sting —his actions may have been thought of as being morally praiseworthy.

As a general rule, intention is seen as the worst kind of MR, then recklessness, hen negligence.

INTENTION

Definition: in the vast majority of cases, intention should be given its ordinary meaning; in exceptional / borderline cases the jury can be directed that they are entitled to find intention if a result was virtually certain to occur and the defendant realized it was virtually certain to occur.

THE CORE MEANING OF INTENTION

The HL made clear in the following case that intention should usually be given its ordinary meaning:

Moloney [1985]

Facts: M and his stepfather (S) drank heavily at a wedding anniversary party. M and S remained after the party, talking in a friendly way until a shot was heard to ring out at around 4am. M telephoned the police and told them that he had just murdered his father. He suggested that they’d had a disagreement about who was quicker at loading and firing a shotgun. M loaded quicker at which point S challenged him to pull the trigger if he had the guts. M fired wildly, killing S. M was convicted of murder.

Lord Bridge

• “The golden rule should be that when directing a jury on the mental element necessary in a crime of specific intent, 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.”

• [see below on Lord Bridge’s further comments on intent].

The courts have not, however, told us what the ordinary meaning of intent is; presumably because they think it to be obvious. The widely accepted view is that the defendant intends a consequence of his action if he acts with the aim / purpose of producing that consequence. NB: it’s a high standard because the jury need to be convinced beyond a reasonable doubt.

Distinguishing intention and foresight

In relation to the core meaning of intention, whether the D’s act was likely to produce the consequence is irrelevant. If D shoots at V, a long way away, hoping to kill her but realizing that there was a remote chance of succeeding, D will still have the necessary intention. However, if D believes that it would be impossible to hit V, then it’s hard to say that he intended it — he did not think that his actions could result in her death.

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. Indeed, in Moloney Lord Bridge said the following on the relationship between foresight and intention:

• Where specific intent is required for a crime (e.g. murder) ‘the probability of the accused having foreseen the consequences must be little short of overwhelming if the intent is to be established.”

• “foresight of the consequences, as an element bearing on the issue of intention in murder, or indeed any other crime of specific intent, 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.”

• The judge should invite the jury to consider two questions: “was death or serious injury in a murder case … a natural consequence of the defendant’s voluntary act? Secondly, did the defendant foresee that consequence as being a natural consequence of his act?” If the answer to both of these questions is yes, the jury should be told that intention is a proper inference.

This dicta was confirmed in the following case (it was not part of the ratio in Moloney).

Hancock and Shankland [1986]

H and S were striking miners who pushed a block of concrete off a bridge onto a motorway underneath, killing the driver of a taxi which was carrying a miner to work. The defendants' case was that their intention was not to kill or harm anyone since they thought that the block was positioned over the middle lane when the taxi was being driven in the nearside lane, and that their intention was only to block the road or to frighten.

Court ofAppeal: in the context of foreseeability and intent "natural consequence" meant highly likely—thus, there was not sufficient intent for murder; the Ds were convicted of manslaughter.

• “To intend is to have a purpose or design that a particular consequence be brought about.”

• Foresight does not necessarily imply the existence of intention, though it may be a fact from which when considered with all the other evidence a jury may think it right to infer the necessary intent.

• The probability of the result of an act is an important matter [but only a factor!] for the jury to consider and can be critical in their determining whether the result was intended: if the likelihood that death or serious injury will result is high [“little short of overwhelming”], the probability of that result may be seen as overwhelming evidence of the existence of the intent to kill or injure.

• Scarman LJ: “[The jury] may also require an explanation that the greater the probability of a consequence the more likely it is that the consequence was foreseen and that if that consequence was foreseen the greater the probability is that that consequence was also intended … The...

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