Mens Rea and the Relationship of MR to AR

Oblique Intention Cases

R v Hancock and Shankland [1986] – the defendants pushed a large lump of concrete off a bridge onto a convey of cars carrying miners and killed the driver of a taxi. Lord Scarman o   “Reference to foresight of consequences [of the act] may be critically important. Its importance will depend on the degree of probability; if the likelihood that death or serious injury will result is high, the probability of the result may be seen as overwhelming evidence of [intent]”

R v Nedrick [1986] – The appellant poured paraffin through the letterbox of a house and lit it.

-          Lord Lane o   “[The jury] simply has to decide whether the defendant intended to kill or do serious bodily harm. In order to reach that decision the jury must pay regard to all relevant circumstances, including what the defendant said and did”

o   “[the jury should] ask themselves two questions. How probable was the consequences which resulted from the defendants voluntary act? Did he foresee that consequence? If he did not appreciate that death or serious harm was likely to result from his act, he cannot have intended to bring it about.”

o   “Where 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 irresistible that he intended that result, however little he may have desired or wished it to happen.”

R v Woollin [1999] – The appellant threw his three month old son at a wall.

-          Lord Steyn o   I am satisfied that the Nedrick test… is pitched at the right level of foresight.”

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R v Matthews and Alleyne [2003]

The defendants threw a non-swimmer into a river who drowned. 

-          Rix LJ

o   “If the jury were sure that the appellants appreciated the virtual certainty of Jonathon’s death when they threw him from the bridge and also that they had no intention of saving him from such death” they could be found guilty for murder.

When this was followed in Stringer [2008], it appears that the Evidential Interpretation is current law.

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Intention Evaluation

Duff (1980) thought that there should be a presumption in preserving the ordinary meanings of the concepts of the word intention through which responsibility is assigned rather than a complicated legal mess.

Lacey noted however if ordinary usage is as consistent and reliable as people think, presumably guidelines would be irrelevant and useless.

Even the Law Commission accept that an artificial meaning is being ascribed to the word intention when they defined a standard test of intention as being “either to intend or have no substantial doubt”. (Law Com N89 Rport 1978)

Kaveny (2004) noted it was easier to discern foresight than intent and that both direct and evidential intention agree it is better to pin down a defendant’s intention through the use of foresight.

The view that intention should include foresight is of probable consequence has been firmly rejected by English law (Moloney and Hancock). The prevailing view is that intention should extend beyond its core meaning to include foresight of a consequences as a virtual, practical or moral certainty. 

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Cunningham Recklessness

R v Stephenson [1979] – the appellant who had crept into a hollow in the side of a straw sack got cold, and lit a fire to keep warm. The stack was damaged. He suffered from Schizophrenia. The judge directed the jury that a person was “reckless as to whether any such property would be destroyed or damaged if he closed his mind to the obvious fact of risk from his act”.

Geoffrey Lane LJ

“a man is reckless when he carries out the deliberate act appreciating that there is a risk that damage may occur from his act.”

He set out a subjective approach, with a double test:

1.       Whether the D foresaw the possibility of the consequence occurring

2.       Whether it was unjustifiable or unreasonable to take the risk

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Caldwell Recklessness

Caldwell Recklessness

R v Caldwell [1982] The D set fire to a hotel after an argument. He was so drunk he didn’t think he was endangering anyone. The jury held drunkenness was not a defence.

Caldwell [1982] AC 341 – OBJECTIVE TEST. Here a drunk D set fire to the hotel, and so didn’t technically foresee harm to either the hotel or the people inside it and so this didn’t make part of the test. The test below was created by Lord Diplock:

      A person charged with an offence under section 1(1) of the Criminal Damage Act 1971 is ‘reckless as to whether any such property would be destroyed or damaged’ if

  1. he 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 had not given any thought to the possibility of there being any such risk or has recognised that there was some risk involved and has nonetheless gone on to do it

R v G and Another [2004] – The HoL overruled Caldwell, and applied the subjective Cunningham recklessness to criminal damage. 

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S8 Criminal Justice Act 1967

      A court or jury, in determining whether a person has committed an offence-

a)      Shall not be bound in law to infer that he intended or foresaw a result of his actions by reason only of its being a natural and probable consequence of these actions; but

b)      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 in the circumstances.

S8 makes it clear the test for intention is a subjective test, it allows that if the D was in some way not a reasonable man, then that could be taken into account.

S8 is still good law. But we should remember not all crimes requires foresight of a result. 

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Woollin [1999] AC 82

D was looking after son, who kept crying, so the D threw the baby at the wall. The baby died. The D admitted he realised there was a risk of serious injury, the judge told the jury that they could infer the D knew there was a substantial risk he would cause harm.

Where the charge is murder and in the rare cases where the simple direction is not enough, the jury should be directed that they are not entitled to [find*] the necessary intention, unless they feel sure that death or serious bodily harm was a virtual certainty (barring some unforeseen intervention) as a result of the defendant’s actions and that the defendant appreciated that such was the case. *replaces “infer” in Nedrick.

Interpreting Lord Steyn in Woollin - Definitional Interpretation – Amounted to laying down a new definition of oblique intention, “if the D foresees the result as a virtual certainty”. Evidential Interpretation – Some commentators argue that he wasn’t defining intention, he was merely confirming how a jury should find intention. So we wouldn’t have a definition, but we know when the jury can convict of murder (inclusive not exclusive). It allows for some “moral elbow room”, which is important as the jury can therefore be more flexible (for example a father who threw his daughter from a burning building and she breaks her arm, whilst he wouldn’t have intended GBH, by this method, they can let him off or convict him dependant on how they view societies morals).

Matthews & Alleyne [2003] – The CoA have suggested they prefer the evidential interpretation. In this case the D threw the V who couldn’t swim into a deep river. The V drowned. They were arrested and convicted for murder. They appealed on the grounds that the Judge said the jury had to convict if the D saw death as a virtual certainty (he took the DI approach). The CoA said that the law has not yet reached a definition, therefore Woollin has not laid down a substantial rule of law. They went on to advocate use of the EI, as we have, at this point, no clear definition of intention (it also allows no moral flexibility to the jury). 

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Transferred Malice

      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 so injured”

      Pembliton (1874) - Where D throws a brick at V but misses and breaks a window nearby, D cannot be liable for criminal damage where he is not aware of the existence of the window.

Thus malice can be transferred between victims, but it cannot be transferred through offences.

      Gnango [2011]– The D and “Bandana Man” were having a shoot-out in a car park, when an innocent passer-by was shot and killed. The Supreme Court held that foresight of risk that BM might kill D with intention to do so could be transferred in respect of death of V, the passer-by. The D was therefore guilty of murder.

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Chain of Mens Rea to Actus Reus

Thabo Meli [1954] – The D struck the V over the head intending to kill him. And then dropped him over a cliff where he died from exposure. The General Principle is that Mens Rea must be proved at the time Actus Reus is committed. The Privy Council decided it was impossible to divide up one series of acts and thus the D was liable for murder.

Le Brun – the chain of causation was not broken between an original assault (when he hit her) and her death (by dragging her body, causing her to hit her head and die). There is obita that had the D been trying to help the V, then he might have broken the change of causation as the nexus between the two halves of the prosecution case would not be connected.

Fagan v MPC – the D unknowingly drove his car onto the foot of the PC, but he then refused to move off it. The Court held this as being an act of continuous mens rea, which could be superimposed onto an existing actus reus. He was convicted for assault. In a similar case where a fire was started but not so as to burn a house it was held that as he had created a dangerous situation which he failed to abate (Miller)

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Principles of Correspondence

a theoretical principle that is attributed to Ashworth. Lots of offences breach this principle, which states that mens rea should relate to the prescribed harm.

      D’s mens rea (intention, recklessness or negligence) should relate to the proscribed harm

      Respects principle of individual autonomy, with emphasis on choice and control

      BUT many offences breach this principle, including murder (intention to cause GBH will suffice), making them constructive crimes. These are when someone commits one offence but because of the result of this offence, they become liable for a far more serious offence. So as long as you have the mens rea for the original crime you would be liable for the secondary more serious event (under constructive crimes)

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Gammon Ltd v AG of Hong Kong [1985] 1 AC 1:

(1)    There is a presumption of law that mens rea is required before a person can be held guilty of a criminal offence;

(2)    The presumption is particularly strong where the offence is ‘truly criminal’ in character;

(3)    The presumption applies to statutory offences, and can be displaced only if this is clearly or by necessary implication the effect of the statute;

(4)    The only situation in which the presumption can be displaced is where the statute is concerned with an issue of social concern, and public safety is such an issue;

(5)    Even where a statute is concerned with such an issue, the presumption of mens rea stands unless it can also be shown that the creation of strict liability will be effective to promote the objects of the statute by encouraging greater vigilance to prevent the commission of the prohibited act – this is basically looking at the purposes of punishment, asking why would you have strict liability other than to act as a deterrent. 

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