Mens Rea

General Principles: Mens Rea

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Introduction

Crimes are sometimes categorised by reference to specific intention, examples of which are murder and GBH with Intent. This is where the word intentionis used as part of the mens rea, and basic intention crimes where recklessness will suffice for the mens rea. Examples of these types of crimes are **** and assault.

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Intention - Direct

The highest form of mens rea is intention.

Intention was defined in the case of Mohan (1975) as where the defendany wants to achieve a particular outcome or consequence.

Where D wants a particular outcome or consequence, this is referred to as purposive intention.

Purposive intent is illutrated by the case of Calhaem (1985) where D was a successful hitman.

It was also illustrated by the case of Shipman where D was a doctor who murdered a number of his patients.

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Intention - Indirect

Sometimes D may want a particular consequence but may actually achieve another consequence; this is called oblique intent or foresight of consquences.

In Moloney (1985), Lord Steyn said that "intentionis a plain ordinary English word, it should be left to the good sense of the jury to determine if it is present in an offence.

In the same case, it was stated that foresight of consequences is only evidence of intention.

Section 8 of the Criminal Justice Act 1967 states that a court cannot be bound to find intention, this is due to the doctrine of jury equity. The jury has to take into account all the circumstances.

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Virtual Certainty Test

In the case of Woolin (1998) it was confirmed that a jury should not find intention unless they are sure that D foresaw the consequences of his/her actions as a virtual certainty and realised this.

The Law Commission suggested that Woolin be put into a statutory definition, but this has not happened.

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Recklessness

Recklessness is where D knows that there is a risk of the consequence happening but goes on to take that risk.

The two types of recklessness are Cunningham [subjective] recklessness and Caldwell [objective] recklessness.

The leading case in this area of law is Cunningham (1957), which states that D could not be liable unless he foresaw the risk and went on to take it. This is referred to as subjective.

For a few years a different form of recklessness was used. Lord Diplock stated in the case of Caldwell (1981) that D would be guilty if a reasonable man foresaw the risk (of harm, injury, damage, loss, etc.) but nonetheless went on to take that risk. This was referred to as objective recklessness.

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Recklessness (2)

In Elliot v. C (1983), the case of Caldwell was applied as the judge felt obliged (due to the rules of precedent), as a consequence a 14-year-old girl with a mental disability and learning difficulties was convicted of arson because a reasonable man would have foreseen the risk that her lighting a fire in a garden shed to keep warm would have burned the shed down. This case illustrated how unfair objective recklessness was.

The case of R v. G (and Another) (2003) finally overuled Caldwell, in which the House of Lords used the Practice Statement 1966 because "it was right to do so". Lord Bingham thought that Caldwell had been wrong all along. Two boys had their convictions for arson quashed because they could not forsee the risk of harm.

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General Principles - Transferred Malice

D can be guilty of a crime if he/she intended to commit a similar crime against an intended victim but actually succeeded in commiting the crime against an actual victim, this is called transferred malice.

A good case to illustrate this is Latimer (1886) where D, a man intended to assault another man with a belt and instead missed, but ended up hurting a woman instead.

However, in Pemblition (1874) D threw a stone at a group of people intending to hurt them, he missed the people but smashed a window; he was not guilty because the intention to hurt the people could not be transferred to the window as it was a different crime.

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General Principles - Coincidence of AR and MR

For an offence to take place both the actus reus and mens rea have to coincide with each other.

The cases of Thabo Meli v. R (1954) and Church (1965) demonstrate the coincidence theory.

The coincidence theory is demonstrated in the case of Fagan (1968) where D accidentally drove onto a policeman's foot, when asked to remove the car, D refused and shouted abuse at the PC. The offence was completed by failing to remove the car from the foot.

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