Mens Rea Short Notes Essay
1) Direct Intent: purpose to cause it = purpose type intent or direct intent. 2) Oblique Intent: constructed when D does not intend result but foresees its occurrence as a certainty. Smith (1990) example: Plane Insurance bombing. 3) Itzhak Kugler (2004): states where there is only a 50% chance of explosion this should be conditional oblique intent and be a form of recklessness rather than intent. 4) MD (2004): states OI was created to help prosecution fill a gap in the rare case where a result may not be intended but D foresees the result to be a virtually certain consequence of his actions.
Modern Evolution of Intent: 5) DDP v. Smith: said D foresaw and intended everything that was a natural and probable consequence of his actions. 6) Sec 8 of the Criminal Justice Act 1967 abolished this assumption. Therefore the approach became subjective, i. e. that D intended what HE foresaw not what a reasonable person would deem natural and probable. 7) Hyam v. DPP: stirred up conflict – here foresight that result is a highly probably consequence was sufficient to convict for murder. Criticism: ) i) Artificial and unnatural to attribute foresight of a consequence to the meaning of intent. 9) ii) Distinction between OI and recklessness is merely level of foresight. OI = highly probably, R = merely probably this is far too unsatisfactory a distinction. Does OI not seem more a category of R then Intent. 10) iii) Williams (1984) states that there is greater blameworthiness in someone intending something unlawful (deliberately flouting the law) and someone who merely foresaw that thing to be a highly probable consequence to his act.
Moral distinction exists. Especially in crime of murder where a mandatory life sentence is imposed. 11) Due to such criticism HoL changed approach in R v. Moloney, and stated that judges should avoid expounding on the meaning of intent and jury should answer this themselves. 12) Lord Bridge said that foresight of consequences, no matter how probable, was only evidence from which intent may be inferred. 13) Lord Bridge added that if judges had to give a direction it should be a. Was the result a natural consequence of D’s act b.
Did D foresee it as a natural consequence. c. He added that he level of foresight must be ‘little short of overwhelming’ or a ‘moral certainty’. 14) R v. Hancock: Lord Scarman disapproved of the relationship of foresight and intention in Moloney and said that probability of the consequence occurring was to be factored in as well. If it was highly probable, then it is more likely that D foresaw it, and the likelihood of foresight was evidence for intent. In short, foresight was to be regarded as evidence of intention, not as an alternative form of it. 15) R v.
Nedrick: Put a minimum level of foresight required to infer intent – that ‘D was virtually certain that his act would lead to the consequence’. 16) R v. Woollin: Nedrick was approved of and it was stated that a result foreseen as virtually certain will entitle a jury to find intent not merely infer. So now definition of intent would seem to include some result foreseen as virtually certain. 17) Mathews and Alleyne: also seem to suggest that where an 18year known non swimmer was thrown into a river the CoA held that the fact that drowning was a virtual certainty means the D’s must have had the intent to kill.
This seems to equate virtual certainty with intent but both Woollin and Matthews don’t go so far and confirm that foresight of virtual certainty means intent. 18) R v. Woollin: The trial judge summed up using the phrases, virtual certainty and substantial risk. CoA said this blurred the lines between intent and recklessness and substantial risk should not have been used Analysis: 19) Wilson (1999): states that foresight still is only a precondition to intent and jury may choose not to infer intent. 0) Norrie (1999): states that courts have moved away from binding the jury and have allowed some moral elbow room – now the jury will find intent where it deems it morally just to do so.
21) Anwar (2006): I think that this leads to uncertainty and people must know what intent really is for the sake of legality in the legal order. 22) Solutions to prevent uncertainty: Virtually certain should be fully equated to intent but the mandatory life sentence for murder should be abolished and judges given discretion to award smaller sentences. 3) Reform: Law Commission’s (1993b) proposal: A person act ‘intentionally’ with respect to a result when it is his purpose to cause it or ‘he knows that is would occur in the ordinary course of event if he were to succeed in his purpose of causing some other result’. This will give the jury something to work towards, unlike Moloney/Hancock/Woollin guidelines where the jury shall try to establish something that is not defined at all. Recklessness: 24) Recklessness: The law has long recognized recklessness as blameworthy. The taking of an unjustified risk has always been deserving of punishment.
How is recklessness to be judged two approaches came about: 25) Subjective Recklessness R v. Cunningham: defined recklessness as the conscious running of an unjustified risk. The test in Cunningham had two parts: i) D must have foreseen the chance that his actions may lead to harm. ii) the risk must have been unjustified (unreasonable) to take in the circumstances. 26) So if one is unaware of the risk involved in his actions he will not be reckless as in Stephenson where the D proved that due to his schizophrenia he did not foresee the consequences of his act.
7) Objective Recklessness R v. Caldwell: It was held in cases such as Caldwell and Lawrence where Lord Diplock said in both that D will be liable if i) he did an act which created an obvious and serious risk, and ii) when he did that act he either gave no thought to the possibility of harm (i. e. the risk involved) or he recognized the risk yet he went on with it. 28) So now if a reasonable man would realize the risk D would be guilty even if D himself did not realize the risk. Elliot v. C – 14yr old subnormal girl set alight garden shed – held liable for recklessly causing criminal damage even though she did not foresee the risk involved. 29) DPP v. Khan: boy with low IQ held liable for harm to people despite the fact that he did not foresee risk involved. 30) Caldwell Loophole: In Chief Constable of Avon and Somerset v. Shimmen it was said that if D thinks of possible dangers of his act but genuinely concludes that no risk is involved then he shall not be held reckless even if a reasonable man in his position would have thought otherwise.
1) Lord Ackner in R v. Reid: compared the loophole to where D relying on his passenger’s (imagine passenger is D’s mind) word that no car is coming (no risk involved) from the other side, attempts to overtake and causes an accident – he will not be reckless. 32) Fall of Caldwell: Professor Williams and JC Smith in 1981 criticized Caldwell because criminal liability should arise where D has knowingly done something wrong not where it just happens as a result of some act. 3) Even Law Commission (1989 and 1993c): suggested the reintroduction of the Cunningham test. 34) R v. Reid: HoL began to move from their Caldwell position and stated that recklessness may have a different meaning in different offences. 35) First Caldwell capitulated in non-fatal offences against the person – R v. Spratt, R v. Parmenter, and R v. Savage overruling DPP v. Khan. 36) Caldwell kept on loosing ground and by 2002 it was confined to motoring offence and criminal damage 37) R v. G (2004): finally killed Caldwell recklessness in criminal damage.
Two boys, lit newspapers, threw under bin, caught fire, did not foresee result they thought it would simply burn and fade away. Lord Bingham stated that: i) in Caldwell sec 1 of the Criminal Damage Act 1971 was misinterpreted ii) that for serious crimes proof of a culpable state of mind is necessary. 38) R v. G Lord Bingham further added that for recklessness there needs to be “a knowing disregard of an appreciated and unacceptable risk of causing an injurious result or a deliberate closing of the mind to such risk”. Deliberately closing your mind to a risk means you know it (naughty). 9) Lord Bingham did approve of the test in motoring offences the offence of reckless driving has been abolished and so down down Caldwell recklessness. Objective approach is only now used in cases of voluntary intoxication in basic intent crimes due to public policy for the most part. 40) Arguments against the Caldwell: i) culpability should be based upon choice. With Caldwell the individual has not chosen to do anything wrong per se. 41) ii) There is no deterrent value in punishing a man who did not intend to do anything wrong nor did he take a risk.
2) The Caldwell support: i) Lord Diplock in Caldwell stated that if a hypothetical D made the plea “I just didn’t think; my mind was elsewhere” Lord Diplock replied, “You ought to have thought; we blame you for not thinking’. How silly an unrealistic. 43) ii) Lord Diplock in Lawrence further supported Caldwell that the object approach is subject to finding “moral turpitude” in the D’s actions or a ‘lack of thought’. Why was this then not made part of the test. Where the hell was the moral turpitude in the sub-normal girl in Elliot v. C. 4) iii) Subjective approach assumes that D’s state of mind, at the time of committing the act, is ascertainable. Bull shit. Only the D knows and would he want to tell the truth to be convicted. 45) iv) Punishment may be good on utilitarian grounds – punish him for not thinking and next time he will think. 46) Final Twist: Shortly after R v. G the Sexual Offences Act 2003 introduces that a D will not be guilty of rape if he ‘reasonably’ (objective) believes the other is consenting. His belief must be one that a reasonable man would deem to be consent.