Mens Rea and the Relationship of MR to AR

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S8 Criminal Justice Act 1967
intention is a subjective state of mind (it matters only whether the defendant intended the result and not if the reasonable man would have).
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Two Types of Intention
Direct - Intended Consequence as aim/objective, Oblique - Intended Consequence as foreseen as a virtual certainty
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R v Moloney [1985] - Facts
D and fatherdrinking heavily. They engaged in a contest to see who had the quicker draw, which ended up with the stepfather being shot by a shogun and dying.
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R v Moloney [1985] - Principle
- Lord Bridge o “the probability of consequence taken to have been foreseen must be little short of overwhelming before it will suffice the necessary intent”
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Test for Oblique Intention
R v Nedrick [1986] - 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 it
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Duff (1990) suggestion on direct intention
employing a test of failure: would the defendant count their actions as a failure if the result did not ensue? Thus such wanted results are intended even if the chances of the result occurring are slim.
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Cunningham Recklessness - Subjective Approach - 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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R v G and Another [2004]
Cunningham now applied to Criminal Damage cases also
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Spratt [1990]
Applied Cunningham to assault
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Duff (1990) on Recklessness
difficulties in proving a person’s state of mind were an important reason behind Lord Diplocks conclusion in Caldwell that recklessness should be objective. unrealistic to believe that one can reliably determine the state of a person’s mind.
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Law Commission Working Paper 31
“A person is negligent if he fails to exercise such care, skill or foresight as a reasonable man in his situation would”
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Normative (Objective) Theory of Mens Rea
Recently the law has expanded negligence as a basis for liability, adopting a normative theory of mens rea. The Sentencing Advisory Panel also regards negligence as one means of establishing culpability.
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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”
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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.
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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 to death of V. D = guilty
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AG’s Reference (No 3 of 1994)
cannot have a double transfer of malice from mother to foetus and from foetus to child it becomes.
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MR to AR - Mistake as to Fact - 1) R v K 2) Sexual Offences Act 2003
1) D’s belief need only be honest and genuine and 2) belief must be reasonable
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MR to AR - Mistake as to Fact - Williams (Gladstone)
belief in need to use self-defence need only be honest. D punched police who he thought were assaulting a youth
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MR to AR - Mistake as to Fact - Criminal Justice and Immigration Act 2008, s.76 (3)
D to be judged by reference to circumstances as he believed them to be when deciding. This confirms cases like Williams where you must look at the Defendants own perspective
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MR to AR - Mistake as to Fact - Graham
reasonable belief needed for duress (and all cases other than self-defence need more than honest, must be reasonable)
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MR to AR - Mistake as to Fact - O'Grady
drunken mistake = no defence (again confirmed in the 2008 act). It depends on whether they would’ve made the mistake whether or not they were drunk.
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Strict Liability Offences - MR?
the Mens Rea requirement may be dispensed of
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Sweet v Parsley [1970] - Strict Liability
The principle was that unless a statute said otherwise, mens rea is required and that it will be presumed for criminal offences. B V DPP [2000] confirmed this.
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Card 2


Two Types of Intention


Direct - Intended Consequence as aim/objective, Oblique - Intended Consequence as foreseen as a virtual certainty

Card 3


R v Moloney [1985] - Facts


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Card 4


R v Moloney [1985] - Principle


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Card 5


Test for Oblique Intention


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