Revision notes on the Mens Rea for AS Criminal Law.

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  • Created on: 21-01-08 09:36
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The Mens Rea is the mental element of the offence it may also be described as the fault
The prosecution must therefore prove the actus reus and that D had the required state of
mind at the time of the offence
The Mens Rea is found in the definition of the offence
e.g. Definition of theft:
`Dishonest appropriation of property belonging to someone else with
intention for permanent deprivation'
The requirement of mens rea is variable according to the definition of the offence, this can
help to distinguish the seriousness of offences e.g. murder requires intention while
manslaughter merely requires negligence
The definition of the offence may not expressly identify the mens rea. Here it is for the court
to interpret whether it is required. The presumption is that MR is required (see strict
(25)R v Savage & Parmenter (1992) ­ judged to require same MR as assault
The MR may be less or more than the actus reus
The MR is less in relation to murder where the AR is causing death while the MR is merely
intending to cause GBH, clearly a lot less
In OAPA 1861 s18 the MR is to cause GBH while the AR is wounding. Hear the MR is
clearly more than the AR
The victim's motive (i.e. why they did it) is irrelevant to the proof of MR
Note that the motive may be reflected in the sentence given
The three most common forms of MR are:
Intention is where D deliberately chooses to act in a certain way
Recklessness is where D foresees the consequences of his actions and chooses to take
the risk of carrying them out
Negligence is where D's conduct is below the standard of a reasonable person
Intention form the MR of the most serious offences
There is no set definition of intention
Once again no clear definition which could be said to lead to inconsistency however
balances with the need for flexibility as every case is different

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Again it is left for the jury to interpret which in a way allows for society to set the standard
and hence installs public confidence in the criminal legal system
There are two forms of intention:
Direct intention
Indirect/Oblique intention
Direct Intention:
Direct intention is where the consequence of D actions was D's initial aim/purpose i.e. D
intended the consequence
Indirect/Oblique Intention:
Indirect/Oblique intention is where the actual consequence was not D's original aim but
was foreseen by D i.e.…read more

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Whether or not the risk was justified is determined objectively (would the reasonable
person have taken the risk) and is decided by the court/jury
A subjective approach would ask if D would have taken the risk, the answer to this would
obviously always be yes
Subjective/Objective assessment of risk:
Once the risk has been identified as objectively unjustified it must be asked:
did D foresee the risk? (Subjective)
Orwould a reasonable person have foreseen the risk? (Objective)
(33)R v Cunningham (1957) ­ Failed to…read more

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It has been said that the doctrine of transferred malice represents an artificial basis for
liability but it has been accepted by the Law Commission as necessary
See Draft Criminal Law Bill 1993…read more


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