Mens rea

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  • Created by: Nikki
  • Created on: 19-04-15 21:37

Varieties of and approaches to MR


  • intention
  • recklessness
  • negligence
  • dishonesty
  • belief 
  • knowledge
  • inconsiderateness
  • awareness

Distinguish: objective/subjective approaches


  • Cognitivist --> MR as cognitive mental state --> e.g. knowledge, foresight, belief, intent
  • Moral/Attitudinal approaches --> MR as attitude --> e.g. wicked recklessness, 'depraved heart', indifference
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General principles (1)

Choice and subjective principles

Criminal liability should be imposed only on persons who are sufficiently aware of waht they are doing and of consequences it may have, that they can fairly be said to ahve chosen the behaviour and its consequences

Principle of autonomy --> individuals = autonomour person with general capacity to choose among alternative courses of behaviour --> respect for autonomy means holding them liable only on basis of their choices

Mens rea as enhancing constitutional values of legality and rule of law

Belief principle --> crimianl liability should be based on what D believed they were doing or risking, not on actual facts which were ot known to them at the time

Principle of correspondence

Principle of mens rea supports only criminal liability fo rintention, knowledge and (subjective) recklessness --> serious questions about negligence and gross negligence

Contrast utiitarian views

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General principles (2)

Principles of correspondence, constructive liability, and moral luck

Advocates of constructive liability dispute importance of correspondence principle --> once D has crossed significant moral threshold he should be held liable for whatever consequences follow

Constructive liability allows moral luck to play significant part in law

Subjectivists oppose this --> should blame people for what they intended or foresaw and for what lay within their control

Moderate constructivists --> accept law should respect rule of law but reject principle of correspondence and argue that, so long as D intentionally commits a relevant offence, that fualt is ufficient to justify conviction for a more serious offence in same family if an unanticipated and more serious consequence results

Principle of correspondence should be given precedence/priority

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General principles (3)

Fault element must coincide in point of time with conduct element in order to amount to an offence

Courts make many exceptions

  • Miller principle
  • Continuing act doctrine
    • Fagan v Metropolitan Police Commissioner (1969) --> D drove car onto V's foot and left it there
    • Thabo Meli v R (1954) --> plan to kill V in hut and throw body over cliff --> presence of fault element at any stage during planned sequence would suffice
    • Church (1966) --> reasoning extended to cover a series of acts which ahd not been planned but which simply followed one after the other
    • Le Brun (1991) --> D assaulted wife; dropped her when tried to move unconcious body; suffered and died from fractured skull --> conduct and fault elements need not coincide in point of time so oong as they formed part of 'sequence of events'
    • A-G Reference (No 4 of 1980) --> conviction even though not clear which of D's acts caused death --> so long as jury satisfied that D had sufficient fault for manslaughter both when he pused V and cut up her body, immaterial which caused death
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General principles (4)

Doctrine of prior fault

Conflicts in certain circumstances with principle of contemporaneity

Person should not be allowed to take advantage of any defence or partial defence to criminal liability if the relevant condition or circumstance were brought about by his or her own fault

Points to circumstances in which antecedents of event ought to affect proper moral evaluation of D's conduct

How much fault required?

  • any causal contribution
  • lack of proepr care
  • proof D foresaw possibility that certain conduct might follow?

E.g. D drinks to excess in order to stoke up courage to do certain act --> cannot rely on intoxication as defence because it arose from prior fault

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desire/belief pair --> (a) a belief that, by taking certain steps, I may best achieve X, and (b) a desire to take those steps to achieve X

specific intention

better to define intention in terms of 'acting in order to bring about'

spontaneously formed intention is as much an intention as one which is product of deliberation

one must also intend the means adopted to achieve it, because otherwise D could always avoid liability by pointing to some ulterior motive for the action

needs to be more than an abstract desire for a certain end --> must also desire to take steps towards that end

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Intention (2)


if D foresees a result as virtually certain to occur as a result of his/her conduct, then the jury may (although it need not) infer that D intended the result

  • must foresee it
  • must be virtually certain to occur
  • cannot be satisfied without BOTH foresight and virtual certainty together

Argument in favour --> D's behaviour shows no respect, e.g. for human life, at all --> D has already crossed a moral threshold 

Oblique intention and side effects --> may be less likely to infer intention if the result is justifiable and permissible action

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Intention (3)

Moloney (1965) --> judge should generally avoid defining 'intention' beyond explaining that it differs from 'desire' and 'motive' --> only elaborate in exceptional circumstances where could direct to infer intention if D foresaw prohibited consequence as a 'natural consequence'

Hancock and Shankland (1986) --> overruled test of 'natural consequence' --> juries should be told that 'the greater the probability of a consequence the more likey it is that the consequence was foreseen, and that if that consequence was foreseen the greater the probability that the consequence was also intended

Nedrick (1986)  not entitled to infer necessary intention unless sure that death/serious bodily harm was virtual certainty as a result of D's actions and that D realised such was the case

Woollin (1999) --> followed Nedrick formulation --> modification that 'entitled to infer' became 'entitled to find' --> possibility that courts are 'entitled' but not required to find intention for exceptional cases

Reluctance of jury to commit to a certain definition confirms need to preserve flexibility

Some narrower definitions e.g. doctor giving contraception to under-age girl not guilty of aiding and abetting an offence of sexual activity with a child

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Intention (4)

Shift from objective intention to subjectie intention

Smith (1960) --> reaonsable person test of what would be contemplated as natural consequence

Hyam (1974) --> foresight of high probability

Moloney/Nedrick/Woollin --> all subjective approach 

Possibiliting it would be better to adopt a tighter definition of intention and place greater emphasis on appropriate defences

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Advertent (subjective) recklessness

Cunningham (1957) --> CA held:

  • in statute 'malicious' denotes intention or recklessness
  • recklessness means that 'the accused has foreseen that the particular kind of harm might be done and yet has gone on to take the risk of it' 

3 elements in this definition:

  • D's actual awareness of the risk
  • awareness of any degree of risk
  • unjustified or unreasonable risk to take in circumstances (objective element)

Justifications = principle of autonomoy and importance of respecting choice

Distinction between recklessness and neglgience turns on D's awareness of risk

Choosing to create risk of harmful consequences generally worse than creating same risk without realising it

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Advertent (subjective) recklessness

Holding person reckless despite unawareness of risk would result in conviction like Stephenson (1979)

  • D, schizophrenic, made hollow in haystack to sleep there
  • felt cold so lit fire --> whole haystack up in flames --> expensive damage
  • CA quashed conviction --> definition of recklessness turned on what D actually foresaw

2 awkward cases for test of liability which requires court to be satisfied D foresaw risk:

  • (1) where D acts impusively in heat of moment --> e.g. Parker --> CA held must have known he was dealing with breakable material even if fact not at forefront of mind when slammed the phone down
  • (2) couldn't care less attitude --> 'practical indifference'
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Caldwell (1982)

Caldwell (1982) 

  • new objective definition of recklessness
  • heavily criticised and essentially overruled in G
  • person guilty of casuing damage recklessly if:
    • he does an act which in fact creates an obvious risk that property would be destroyed or damaged
    • when he does the act he either has not given any thought to possibility of there being any such risk or has recognised that there was some risk involved and has nonetheless gone on to do it
  • admitted no exceptions --> convict those with limited/no capacity by applying to them objective standard of foreseeability they couldn't meet --> unfair convictions
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G (2004)

G (2004)

  • 2 children (11 and 12) set fire to some newspapers beneath a rubbish bin and left
  • fire spread and caused major damage to nearby shops
  • HL considered Caldwell test and whether to import capacity exception --> rejected this --> test would become overcomplicated and would risk confusion among juries and magistrates
  • Bingham acknowledged substance of criticism of Caldwell
    • lack of legal foundation for decision
    • unfairness of its effects in some cases
  • marks reversion to traditional, more subjective definition of recklessness based on D's awareness of the risk
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Reckless knowledge

'wilful blindness' --> D knows there is a risk that a prohibited circumstance exists, but refrains from checking

Westminster City Council v Croyalgrange Ltd (1986)

Authority to effect that wilful blindness should be treated as actual knowledge

D does not know relevant circumstance in such cases, since he has refrained from finding out, and it may not be easy to establish that he had an overwhelmingly strong belief (virtually certain) that the prohibited circumstance exists --> therefore type of reckless knowledge and should only be relevant where reckless knowledge is sufficient, unless shown that D refrained from making inquiries because virtually certain that his suspicion would be confirmed

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People who cause harm negligently may be culpable, in so far as they fail to take reasonable precautions when they have a duty and the capacity to do so

Some cases of negligence manifest greater culpability than some lesser causes of recklessness

Derogates from subjective principles e.g. move away from principle of autonomy

So long as fair warning and fair opportunity to conform to standard, it is fair to impose liability in those situations where there are sufficient signals to alert reasonable citizens to the need to take care

  • capacity --> 'objective' only in so far as it holds liabile those who fail to take precautions when they could reasonably have been expected to --> subjective in taking account of capacity
  • derogate from principle of contemporaneity --> culpable failure to take precautions often pre-dates causing of harm --> precedence of prior fault over principle of contemporaneity
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Negligence (2)

Negligence may be appropriate standard for criminal liability where:

  • (potential) harm is great
  • risk of it occuring is obvious
  • D has a duty to try to avoid the risk
  • D has the capacity to take the required precaution

Miller principle 

Aims of criminal law

  • argued that general preventative aim of criminal law cannot be served by negligence
  • argued that crimes of negligence may exert general deterrent effect, by alerting people to their duties and to need to take special care in certain situations

Principles justification --> negligent harm-doers deserve criminal conviction because and in so far as they are sufficiently culpable --> question of degree and judgment

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Subjective v Objective

Subjective tests

  • preserve principle of personal autonomy
  • make no concession to principle of welfare and concomitant notions of duties to take care and to avoid harming the interests of fellow citizens

To move towards greater reliance on objective standards, 2 points must be confronted:

  • Objective tests must be applied subject to capacity-based exceptions
  • any improved moral 'fit' obtained by moving more towards objective standards must be weighed against greater detraction from principle of maximum certainty that is likely to result

Objective tests

  • use words which are more flexible and unpredictable
  • explcitly leave room for courts and prosecutors to make social judgments about limits of criminal sanction
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Transferred malice

D intends to cause harm to A but his act results in the same harm to B --> mens rea can be transferred to B too

Pembliton (1874) --> MR for offence against the person could not be transferred to a property offence

AG reference (No 3 of 1994) --> double transfer of malice (from V, to foetus, to baby) prevents a murder conviction

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