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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…

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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,…

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was suffering the excruciating agony of terminal cancer, but ultimately
he acted so as to kill.
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…

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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…

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alleging `simple arson', but pleaded not guilty to the aggravated form
that required proof that he damaged property `with intent to endanger
life or being reckless whether life was endangered'. He claimed that,
because he was drunk, it didn't enter his mind that he would endanger
life. This argument was…

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2004: R v G applies to criminal damage, Cunningham to all other
offences involving recklessness.


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