Mens rea revision - Criminal Law

Undergraduate Law Criminal law mens rea revision. Also suitable for A Level Law.

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Mens Rea: the mental element:
It is the state of mind that is prohibited (expressly or impliedly) in the
definition of the offence.
The burden of proving mens rea is on the prosecution.
The Law Commission prefers the term `fault element'.
Choice and character: 2 models of responsibility:
Choice theory has had its most influential expression in the work of
H.L.A. Hart. It holds that criminal liability is unjust if the one who is
liable was not able to choose effectively to act in a way that would avoid
criminal liability, and because of that he violated the law.
Character theory: it holds that a person must bear responsibility not for
his choices but for his character, since it is his person and not his deeds
that are in the dock.
Subjective and objective fault:
Subjective fault: assessed according to what D was thinking at the time
of the actus reus.
Objective fault: the fact-finder must consider what a reasonable person
would have thought, and where D did not think in the way a reasonable
person would have done, the mens rea may be satisfied.
Negligent conduct is blameworthy not on account of the actor choosing
to do wrong but on account of the fact that he fails to behave like
ordinary people.
Mens rea words and their meanings:
Direct intention: the intention of desire, aim, purpose and objective.
We intend whatever we mean to do.
RA.Duff: `Would D consider his action a failure if the consequence did
not occur as a result of his action?'
If A's reasoning for firing a gun is to kill V, he intends to kill B, even
though he knows he is an appalling marksman and realistically assesses
his chances of success as only 1 in 100.
Indirect/oblique intention: where an actor can only achieve his aim at
the cost of causing also an inevitable side-effect and he acts accordingly:
For example: A plants a bomb in the hold of an aircraft, piloted by Eve, in
which his cargo is being transported. His plan is to blow up the aircraft
and claim insurance on the cargo. He knows that if his scheme goes
according to plan, Eve will be killed. Although he doesn't directly
intend the death of Eve and would be delighted if she survived, because
her death is factually inseparable from his purpose and he knows this, it
is appropriate to treat both consequences as intended.
This is loosely termed a consequentialist approach.
What a person intends obliquely is only capable of being determined by
reference to what he foresees.
How much foresight is necessary before oblique intention can be found?

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Smith (1961): HoL: irrebutable presumption that an accused foresaw
and intended any natural consequence of his actions and the test for
determining what was a natural consequence was a purely objective
Reversed by s.8 Criminal Justice Act (1967): states that in
determining whether a person has committed an offence, a court or
jury shall not be bound to infer that a result was intended or
foreseen only where it is a natural and probable consequence of
those actions.
Hyam (1975): High degree of probability.…read more

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Matthews and Alleyne (2003): D's were found guilty after throwing V in
river, after robbing him and aware he could not swim. The trial judge
guided the jury as follows: if drowning was a virtual certainty and D's
appreciated that, then they must have had the intention of killing him.
D's appealed saying that the trial judge had misled the jury for equating
foresight of virtual certainty with intention but the appeal was
dismissed.…read more

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The person acts without caring ­ a state of mind in which the actor
appreciates but does not care about the risks he is running, or perhaps
does not care enough even to attend to them. The taking of an
unjustified risk.
Subjective CUNNINGHAM recklessness:
Cunningham (1957): D had removed a gas meter from an empty house so
as to steal money from it.…read more

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He claimed that,
because he was drunk, it didn't enter his mind that he would endanger
life. This argument was rejected at first instance and on appeal ­ on the
basis that drunkenness is no defence to a crime of recklessness. HoL
held: a failure to recognise an obvious risk was just as culpable as
recognising the risk and deciding to take it.
The decision was dramatic.…read more

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R v G applies to criminal damage, Cunningham to all other
offences involving recklessness.…read more


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