Criminal law mens rea etc

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Mens rea

A) Blame and responsibility- actus non fit reus nisi mens sit rea- the act is not regarded as guilty unless the mind is guilty. Basic principle is that conduct alone should not be enough- also need blameworthiness unless it is a strict liability crime. Blameworthiness is based on autonomy. Ashworth - 'the principle of mens rea expresses this by stating that defendants should be held criminally liable only for events or consequences which they intended or knowingly risked. Only if they were aware of the possible consequences of their conduct should they be liable.' 

What can constitute mens rea? D may not always have the mental element constituting the offence at the time of the act. Four levels of culpability- intention, recklessness, knowledge and negligence. Subjective or objective approach to criminal responsibility?

B) intention- can only committ murder with intention. Sometimes the essence of an offfence is intention (for attempts), intent is sometimes the main way the law grades offences (difference between murder and manslaughter), intention is not motive, no statutory definition of intention, intention is a question of fact for the jury, applying a subjective test. S8 of Criminal Justice Act 1967- 'shall decide whether he did intend or foresee that result by reference to all the evidence, drawing such inferences from the evidence as appear proper.'

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Meaning of intention- 'direct intention- consequence was the aim or objective or the defendant.' Oblique intention? 

Oblique intention- lack of clarity in the case law. R v Hyam 1975. R v Maolney 1985- 'was death or serious injury in a murder case a natural consequence of the defendants voluntary act. Secondly did the defendant foresee that consequence as being a natural consequence of his act?' R v Hancock and Shankland 1986- 'in my judgemen the Maloney guidelines as they stand are unsafe and misleading. They require reference to probability.' Lane.

 R v Nedrick 1986- 'the jury should be directed that they are not entitled to infer the necessary intention unless they feel sure that death or serious bodily harm was a virtually certain as a result of the defendants actions and that the defendant appreciated that such was the case' 'when a man realises that it is for all practical purposes inevitable that his actions will result in death or serious harm, the inference may be irresistable that he intended that result, however little he may have desired or wished it to happen.The decision is one for the jury to be reached upon a consideration of all the evidence' - Lord Lane

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Lord Steyn in R v Woollin 1998- approved of the inferring part of Nedrick but said 'the words 'to infer' may detract from the clarity of the model direction. I agree. I would substitute the words 'to find'.' 

Exceptional (oblique) cases following Woollin- Two possible interpretations of Woollin- 1) Definitional interpretation- Lord Steyn 'the effect of the critical direction is that a result foreseen as virtually certain is an intended result' 2) evidential interpretation- Lord Steyn- believed that Lord Lane in Moloney was wrong to suggest that the first caluse in paragraph 1 (Nedrick above) should form part of the model direction. 

Ashworth states 'where Nedrick states that if D foresaw the relevant consequence as virtually certain the court is 'entitled to infer' intention, Woollin states that the court is 'entitled to find' intention. This change has little practical significance and it leaves open the possibility that if courts are entitled but not required to find intention in these cases, then there may occasionally be cases where they may lawfully decide not to find intention despite foresight of virtual certainty.' Jury have more room to make decisions. 

R v Matthews and Alleyne 2003. 

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Ashworth- 'the term 'intent' is not one that necessarily incorporates elements of moral evaluations, unlike the other mens rea term 'reckless'. 

Intention- moral elbow room? Re A (conjoined twins surgical separation) 2000- 'an english court would inevitably find that surgeons intended to kill Mary, however little they desired that end, because her death would be the virtual certain consequence of their acts, and they would realise that for all practical purposes her death would inevitably follow'- Brook. In this case definitional interpretation, evidential doesnt work. They got around it by necessity. 'Marys death would be foreseen as an inevitable consequence of an operation which is intended, to save Jodies life. But Marys death would not be the purpose or intention of the surgery.- Walker.

Intention: a variable meaning? Lord Scarman in Gillick v West Norfolk AHA 1986- 'the bona fide exercise by a doctor his clinical judgement must be a complete negation of the guilty mind which is an essential ingredient of the criminal offence.'

Lord Steyn in R v Woollin 1998- 'I approach the issues arising on this appeal on the basis that it does not follow that 'intent' necessarily has the same meaning in every context in the criminal law.' 

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C) What is recklessness? Taking of an unjustified risk, a person may be reckless as to circumstance or consequence, recklessness needs to be distinguished from- intention and negligence. There is subjective and objective recklessness.

Subjective Cunningham recklessness- concious taking of an unjustified risk. Byrne J in R v Cunningham 1957- '2) recklessness as to whether such a harm should occur or not (ie the accused has foreseen that the particular kind of harm might be done and yet has gone on to take the risk of it.' 

Lord Lane in R v Stephenson 1979- 'Does the word reckless require that the defendant must be proved actually to have forseen the risk of some damage resulting from his actions and nevertheless to have run the risk (subjective test)... In our view it is the subjective test which is correct.' 

Ashworth- 3 elements to the subjective test- 1) D's actual awareness of the risk (advertent recklessness) 2) Any degree of risk is likely to suffice 3) the risk must be an unjustified and unreasonable one. R v Parker 1977  regards point 1. Discussed by Lane in R v Stephenson 1979- 'the fact that he may have been in a temper at the time would not normally deprive him of knowledge or foresight of the risk.' 

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Regarding point 3 Lane in R v Stevenson 1979- 'the fact that some damage would have been obvious to anyone in his right mind is not conclusive proof of the defendants knowledge, but it may well and in many cases doubtless will be a matter which will drive the jury to the conclusion that the defendant himself must have appreciated the risk.' 

Objective (Caldwell) recklessness- (has now been abolished).

Lord Diplock in R v Caldwell 1982 proposed a test for 'inadvertant' recklessness 'a person is reckless as  to whether or not property would be destroyed or damaged if he 1) does an act which in fact creates an obvious risk that property will be destroyed or damaged and 2) when he does the act he either has not given any thought to the possibility of there being any such risk or has recognised that there was some risk and has nevertheless gone on to do it.' 

Ashworth- 3 elements to the objective test- 1) there is an obvious risk 2) D recognises the risk and carries on regardless (subjective test) or 3) fails to give any thought to the possibility of an obvious risk (objective test or inadvertant recklessness) 

R v Lawrence 1982- 'if the jury is satisfied that an obvious and serious risk was created the jury are entitled to infer that he was in one or other of the states of mind required to constitute the offence and will probably do so.'

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Criticisms of Caldwell- Ashworth ' a true objection is that, whereas advertant recklessness is underinclusive, Caldwell recklessness is over inclusive- failures of moral fit which illustrate the conflicting values in current notions of justice. Thus Lord Diplocks test of what would have been obvious to the reasonable person appears to admit no exceptions' R v Stephenson 1979, Elliot v C (a minor) 1983 and R v Bell 1984. 

Clarkson and Keating- 'no civilised society should blame people for inadequacies or immaturity over which they have no control (as opposed to self induced inadequacies such as drunkeness in Caldwell). 

Caldwell also creates a lacuna- what about a person who is convinced that no harm will occur? 

This test was never fully accepted outside of criminal damage cases. 

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The present law

Lord Bingham in R v G 2003- 'the most obviously culpable state of mind is no doubt an intention to cause the injurious result, but knowing disregard of an appreciated and unacceptable risk of causing an injurious result or deliberatly closing of the mind to such risk would readily be accepted as culpable also... but it is not clearly blameworthy to do something involving a risk of injury to another if.. one genuinely does not percieve the risk.' They may be stupid but shouldnt have to face criminal sanctions.

'It is neither moral nor just to convict a defendant on the strength of what someone else would have apprehended if the defendant himself had no such apprehension'- this disapproved Caldwell. 

'One instinctively recoils from the notion that a defendant can escape the criminal consequences of his injurious conduct by drinking himself into a state where he is blind to the risk he is causing others. In R v Caldwell it seems to have been assumed that the risk would have been obvious to the defendant had he been sober.' 

If you close your mind to a risk you must have known there was one. 

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Mens rea and actus reus

Relationship between mens rea and actus reus- coincidence of actus reus and mens rea- general principle that the mens rea must exist at the same time as the actus reus. 

Ashworth- 'the principle of contemporaneity states the fault element must coincide in the point of time with the conduct element in order to amount to an offence. This forms part of the ideology that the function of the criminal law is not to judge a persons general character over a period of time, its concern is only with the distinct criminal conduct charged.'

The general principle has become increasingly flexible- Continuing offence approach- James J in Fagan v Metropolitan Police 1968- 'it is not necessary that the mens rea should be present at the inception at the actus reus, it can be super imposed on an existing act. There was an act, which at its inception was not criminal because there was no element of intention, but which became criminal from the moment the intention was formed to produce the apprehension which was flowing from the continuing act.' R v Miller 1983.

Series of events approach- Lord Reid in Thabo Meli v R 1954- 'it appears to their Lordships that it is impossible to divide up what was really one series of acts in this way.' 

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series of events

Lord Lane in R v Le Brun 1992- 'the seems to us that where the unlawful application of force and the eventual causing death are parts of the same sequence of events, the same transaction, the fact that there is an appreciable interval of time between the two does not serve to exonnerate the defendant from liability.' Attorney General's Reference (No.4 of 1980) 1981.

Transferred malice- can the coincidence of actus reus and mens rea transfer to an unintended victim? Coleridge in R v Latimer 1886- 'if a person has a malicious intent towards one person, and in carrying into effect that malicious intent he injures another man, he is guilty of what the law considers malice against the person injured.' Attorney Generals Reference No.3 of 1994 1998. R v Pembilton 1874. 

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