Mens Rea

Mens rea, covering intention, both direct and indirect/oblique, recklessness, strict liability, coincidence of actus reus and mens rea (contemporaneity rule) and transferred malice.

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Mens Rea

Mens rea is the mental element of an offence, latin for 'the guilty mind'. Motive is seperate to mens rea, however the motive may be a relevent factor that will be considered by the judge when sentencing. 

There are three types of mens rea: direct intention                                                                                                           indirect intention                                                                                                         subjective recklessness.

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Direct Intention

Direct intention is where the result of the defendant's actions was their aim or desire. This is the same as the everyday definition of intention. The case used to demonstrate this is Mohan.

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Indirect Intention/Oblique Intention

Indirect, or oblique, intention is where the defendant has one purpose in mind but in achieving that purpose they cause another consequence.

Therefore clearly intention is not just about desire, it also takes into account foresight of the defendant to harm. The current authority for this is R V Woollin. In this case the court held that the jury may infer intention if: the consequence is a virtually certain result of the act and the defendant knows that it is a virtually certain consequence. 

The word infer is vital in the Woollin test as it means that answering yes to the above two questions is evidence from which the jury may then decide the defendant had indirect intention. However simply answering yes to both questions is not necessarily conclusive of indirect intention.

Another case that can be used for indirect intention is R V Matthews and Alleyne.

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Subjective Recklessness

Subjective recklessness is perhaps a less blameworthy form of mens rea. However many offences require a mens rea of either intention or recklessness. These are called basic intent crimes (e.g assault or battery). Offences which require a mens rea of intention only are called specific intent crimes (e.g GBH s18)

The tes for establishing subjective recklessness was laid out in R V Cunningham. This is a two stage test for establishing whether a defendant can be said to have acted with subjective recklessness.

1) Did the defendant foresee a risk of harm? If yes...                                               2) Did they take the risk regardless?

If yess can be answered to both then the jury may find the defendant had subjective recklessness in committing the offence.

Clearly the focus of this mens rea is what the defendant was thinking. Therefore we need to give consideration to the particular defendant and what they knew at the time.

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Transferred Malice

If the defendant has the mens rea for one offence but accidently commits the actus reus of that offence on another person then the original mens rea may be transferred meaning the defendant will be liable.

Either intention or recklessness can be transferred - R V Latimer

If the actus reus of a difference offence occurs thens the mens rea cannot be transferred - Pembliton

R V Mitchell

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Coincidence of the actus reus and mens rea (contem

Coincidence of the actus reus and mens rea (also known as the contemporaneity rule) is essential.

However the courts have accepted that sometimes the actus reus can be classed as a continuous act.

Fagan V MPC - act of placing car and leaving it there was continuous.

Thabo Meli - act of beating victim and then leaving him there was continuous.

Church - series of linked acts can be classed as coincidence of actus reus and mens rea.

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Strict Liability

Strict liability crimes are where the mens rea does not have to be proved, they are there for public protection. These crimes are usually not seen as 'real crimes'. An example of a strict liability crime is motoring offences, such as speeding tickets.

Gammon v Hong Kong - this case provides the criteria as laid down by Lord Scarman for a strict liability offence:

1) presumption of mens rea

2) gravity of punishment - the more serious the crime the less likely it is to be a strict liability offence

3) wording of the statute - must have access to entire statute

4) issues of social concern

5) is there any purpose in imposing strict liability?

Other case for strict liability are: Alphacell V Woodward, Smedleys V Breed, Shah V LBC and Blake.

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