Mens Rea Revision

Mens rea represents the 'fault' element of offences. Together with the AR it combines to create a prima facie assumption of criminal liability, subject to defences such as self defence. 

Importantly, many crimes are strict liability crimes which require no mental element, similar to strict liability tortious offences to do with, inter alia, dangerous animals. Having mens rea for a crime is not the same thing as moral blameworthiness. The existence of defences as mentioned above is another tool the law can use in determining blameworthiness and as such MR is not the whole picture. 

Four common mens rea elements are: intention, recklessness, negligence and knowledge. Some crimes, especially to do with property also involve dishonesty. Some offences also mix and match different elements of mens rea to go with different aspects of their actus reus. Rape, for example, requires an MR of intention to sexually penetrate, but only recklessness as to whether consent is present. 

Intention

Generally intention is given its normal English meaning by courts and judges are reluctant to instruct juries any further as to its meaning unless absolutely necessary. The core meaning of intention is pretty easy to follow, I intend to do something if it is the purpose or aim of my actions. Typically it is when we near the boundary of recklessness that things become more problematic.  In its central case, foresight is irrelevant to intention. If I shoot a gun at a range of 1km at my target with the intention to kill, even if I understand the incredibly low chances I am still guilty of murder/attempted murder. 

What about cases where something wasn't intended, but was a virtual certainty or likelihood? The House of Lords case of R v Woolin is a leading example in this area. In Woolin a baby had been thrown into a hard surface in a fit of temper, killing him. The case turned on what the direction to the jury should be concerning intention - I.e. when they were allowed to find what me might call an 'oblique' or constrictive intention. At trial the judge had directed the jury to find intention if there was a "substantial risk" of which the D was aware, this conflicted with the judgment of the Court of Appral in Nedrick who directed intention could be found if the jury considered the consequence to be a virtual certainty of actions and the D appreciated this. The House of Lords approved the Nedrick test of virtual certainty. The flow chart below demonstrates the consequences of this. 

There is no requirement for a jury to find intent if they consider something to be virtually certain, rather it is a permissive direction. Furthermore on quirk of this test is that it requires (1) the event in fact to be virtually certain and, (2) the defendant to realise this. This has the strange result of meaning objective fact effectively alters the legal state of mind of a defendant. For example, I shoot a pistol at a hot air balloon hoping to kill the people inside and I calculate there is a virtual certainty of hitting. However, the gun is loaded with blanks so there was in fact a 0% chance of it striking the balloon, as per the Nedrick test as approved in Woolin, I will not have the intention. Lord Steyn also restricted his discussion to murder meaning the point will have to be argued in any case not concerning murder if the Woolin direction is to be used. 

Intoxication and intent is fairly straightforward. Essentially a drunken intent is still an intent, however if a drunken D lacked intent they cannot be found guilty of an intent based crime. They can however still be reckless. In the case of Maloney a father and son had a drunken reloading contest with their pistols. The son accidentally shot the father to demonstrate he had won. He was found not to be guilty (I think...) importantly his defence was not that he was drunk, but rather a preemptive question of whether he had intent. The drunkenness simply made his lack of MR more credible. 

Recklessness💩

Two ss twice...  

Thank fuck, Caldwell recklessness has been abolished. In terms of law we need only concern ourselves with Cunningham. This can be summed up as (1) D was aware there was a risk that their conduct would cause x and, (2) the risk was one which was unreasonable to take. NB this requires foresight of a risk, not a likely one. Also, re voluntary intoxication if you fail to see one you would have done if you were sober, you will be judged as if you had been sober. This is presumably for policy reasons and will be mentioned later on.

In Stephenson [1977] (why do square brackets take two clicks to find on an iPad keyboard...) a paranoid schizophrenic lit a fire in a haystack which then destroyed it. Due to his condition apparently he didn't realise this would happen. Thus he was not reckless as per Cunningham. 

In Parker a chap went in a radge after having a bad day and smashed a phone down into the cradle in a phone booth whereupon he was nicked. He claimed that in his state he was not aware of the risk of damage. Here the court decided that if you deliberately 'close your mind' to a risk because of rage. This was basically because they thought it was the sort of thing he should have bloody known and you can't just get away with saying "I didn't know there was a risk of damage guvnor". Here it seems that the court was leaning on him because they saw him as morally blameworthy even if if he lacked an objective mental knowledge of the risk. 

Caldwell recklessness was totally shit and that is why they got rid of it. Basically it needed (1) aware of the risk and/or (2) there was an obvious and serious risk AND they failed to consider it. The problem with this is that you end up locking up kiddies for burning down branches of tesco with their urban campfires. Clearly this is daft and it was abolished by the House of Lords in R v G&R. 

Negligence

This is basically like Tort. It is an objective test and their state of mind is irrelevant. What matters is what a reasonable person might think. Query? Is this too high a standard? A cursory glance at Twitter shows that most people are not reasonable people, but preening, spinning class attending, Adele loving lobotomised morons. 

For manslaighter you need gross negligence, this is like negligence but with added nose picking. 

Bringing all this shit together. 

So to state the law 

Intent as per Woolin is either central case or you knew it was a virtual certainty and it was a virtual certainty. This buts up against recklessness in which the D must foresee the result (or would have done if they weren't pissed). This then descends into negligence which is an objective question, it did they act as a reasonable person might have? Nb if they did this recommends them for immediate promotion to prime minister. 

Intoxication

Right so as a general rule, for basic intent crimes (I.e where there's a recklessness version) then voluntary intox is no defence. For specific intent crimes it can be a defence, as in it can help deny MR. Involuntary intoxication is a defence (not a real one, an MR denying one) for both. 

There's a case called R v Heard which ballses this all up as an analysis, but it's probably best seen as an outlier. At least that's what Jonathan Herring says and he should know. Here is a diagram what I done to summarise the current law. 

Knowledge and belief 

Notey Benny, when it comes to belief/knowledge in an MR look carefully at what aspects of the AR need to be known. 

The difference between knowledge and belief seems to come down to whether or not x is true. As in, I believe Newcastle United are a good team, but I know Mike Ashley is a crock of shite. Knowledge also appears to require a positive belief, as in Reader (1977) some dodgy off-the-back-of-a-truck gadgey managed to spin that "belief that property might be stolen is not belief that it is stolen". This doesn't mean absolute certainty is needed. Basically if you assume x and have no serious doubts that is knowledge (or belief). 

Transferred Mens Rea

Moral puritanical sods sometimes call this transferred malice, but as we have established not all MR is malice. This is the Laurel and Hardy / Mrs Browns boys situation where x tries to punch y, y ducks and x hits z. In this case because it is the same kind of crime you can transfer the MR to match up to the unexpected AR and nick them. Also if X was acting in self defence they can apply that against the third party z too. There's also general malice, a lesser known comic book villain and legal concept. General malice is the sort of ISIS style firing indiscriminately into a crowd sort of thing. Here the MR is simply "I intended to kill any/all infidels/Beliebers/Oxford rowers in the room. 

In Attorney Generals Reference Number 3 (Return of the Attorney General),a radgey stabbed his missus in the tummy when she was pregnant. The bairn was born early and died.  This was sad.  It was also sad that they couldn't nick him for murder as you can't transfer malice to something that is not yet a legal person. He could be got for manslaighter (also can have a life sentence I.e. 16 years its political correctness gone mad) as this doesn't need intent to injure any particular person. 

Coincidence or AR and MR 

Stands to reason but you need them both to be present at the same time. The courts have got a bit creative in making this happen. Here are some hypotheticals what I copied out of a book. 

Courts have gone two ways in fudging this sort of thing. They like to say it was all part of a plan and thus one single transaction at evil Primark a la Meli v R. In fact it doesn't even have to be part of a plan as per Le Brun (1991). See also Fagan where a gadgey parked his car on a huge plates of an honourable member of the fuzz and refused to move if he didn't mean it at first, his later refusal to move it meant that the MR caught up with an ongoing AR. 

Another approach is to say that a later failure to stop harm was a criminal omission. This is the Miller. Case we looked at in AR. When you create a danger you then a have a duty to do what's reasonable to mitigate it. Failing in this can attract liability (exception to omission rule).  

THEORY BITS

One question is, what do we mean by intention? Judges often get on their high horse about "oblique intention" such as in this real life exam question from Oxford Community Polytechnic. 

There are a few issues that spring to mind here. Firstly what is intention? Secondly, what do we think of oblique intention? What would the alternatives look like?

What is intention?

Alan Norrie, who despite having the name of a peevish driving instructor is actually a well respected legal academic, has posited two notions of intent which compete in the law. (1) Factual psychological intention (ie content of their mind) and, (2) namby pamby moral substantive intention (ie would we vote them off Big Brother). 

(1) is straiforward in theory. We intend what we have as our purpose in acting. This model is also happy with oblique intention provided it is restricted to the necessary means of our plans. If there is merely a risk of something, we'd call it recklessness. Wheat comes to very high chances of things which are not necessarily means to our plans, but likely consequences a sensible approach is taken. Basically as the highest form of certainty we can ever have is 'virtual certainty' because of inter alia, the problem of induction you massive nerd, then there's nothing wrong with rounding up virtual certainty to intent. This appears to be the sort of approach in Woolin, albeit the extr requirement that the thing is virtually certain (as well as us knowing it) seems unnecessary. 

(2) is stupid and so is anyone who believes this is correct. However, it does seem to capture the approach of the Court in Parker, although admittedly this was to do with recklessness. On this approach, murder is punished because of the result (a dead person), but also because of the harm which is "intrinsic in attacking another's life". This is worthy of punishment because it shows "N utter indifference to the victims rights and interests". This would help to explain why we punish attempts murder (query what is the sentence compared to murder ? I assume similar/the same). 

This also explains why we can charge murder with an MR of GBH. Both involve a disregard to rights and interests of a serious scale. However there are some potential problems here. What about rape for example? Some commentators would suggest that rape is as serious /more serious an "indifference to victims rights and interests". Does this mean we could use MR of rape for a murder charge? Illegal at manslaighter would also fit the bill here, but we attach particular chagrin to murderers and it seems we should be careful about who we apply the bill too (in no way is this defending rapists...). 

What are the alternatives to oblique intention?

Pure intention is the ronseal of the theoretical world. You intend to do something if you intend to do it (on the psychological 1 view set out above). 

The moral elbow room view (Herring) basically leaves the door open. Intention is purpose but buries are given room to decide if a mental state is wicked enough for intention. This panders to the namby pamby view above and also seems to discount defences as an important moral element in criminal law. Also can be accused of causing too much uncertainty. Consider doctors. They need to know whether bumping off old Mr Norbert will get them thrown in the slammer or not. 

The Hyam view is a moronic House of Lords decision in which if something is foreseen as likely then it is intended. This seems to muddy the waters of recklessness too much. We don't want to go down the mathematical route of apportioning probability thresholds to things. Courts have been clear in this in the past, ordering retrials when first instance judges get too fresh with their statistics. 

Oblique intention roughly lines up to the approach taken by the court in Woolin. Glanville Williams is a big fan. He says it is unlikely that Palriamnrt will legislate to include high probability in the MR of crimes such as murder and that oblique intention is a perfectly acceptable workaround. This is particularly convincing given what has been said above about the fact that nothing is ever a complete certainty. My own view on the matter is that his seems sensible. If we are really concerned about fathers throwing children off burning buildings then we should consider (1) juries don't have to find intention under the Woolin instructions and (2) we can always invent some new defences if a particular area becomes troubling. 

Fin.

Actus Reus revision summary

The actus reus represents the conduct element of a crime, i.e. the THING which we are not permitted to do. This works in conjunction with the MR, which helps to allocate criminal culpability for an action (as opposed to simply say, negligent action).

Generally an act is required however this is subject to several large caveats. These can be grouped as omissions, third parties and state of affairs offences.

One is only culpable for an omission where there was a pre-existing duty to act (ie if you are employed as a police officer or have assumed responsibility for the care of someone). Some crimes created by statute require an act in their wording and thus cannot be committed by omission, ie under the protection from eviction act. Generally duties arise when one would expect them to: because of statute, contracts, property ownership or assumption. A slightly more unusual category present here is that of "creation of a danger", put forward in the leading case of R v Miller.

In Miller style cases the issue is that the AR and MR are not, at first flush, concurrent. As such the courts have effected a work around in the following form: (1) if the conduct did cause the event, then (2) the mindset of the D is relevant until the end of that event, in this case from ignition to the completion of damage. As such in Miller when the D awoke and saw the fire he had created, his decision to leave without warning people provided an MR which was concurrent with the ongoing AR of arson.

The content of the duty is determined by a jury and is what is thought to be "reasonable". In Stone v adobo son it appears to be suggested that this is "reasonable" in an objective sense, ie discounting the perculiarities of the defendants in the case (in Stone two disabled people failed in their duty to care for a third party).

When it comes to distinguishing between omissions and acts the courts have shown flexibility, especially in medical circumstances. This in Airdale NHS Trust v Bland the withdrawal of treatment for a no-hope patient in a coma was treated as an omission. The judgment contains different reasons for this but in short, Keith stressed that the duty of a doctor was not violated by an omission to treat as existence in a PVS is of no benefit to a patient; Goff characterised the decision as an omission to struggle, this distinguishing it from a lethal injection, and; Mustill pointed out that the initial treatment had been done without the patients permission acting in his best interests. Now there was no chance he would get better the justificatory basis for that non-consensual treatment had gone and thus it should not be continued.

State of affairs cases such as drunk in charge of a motor vehicle can be explained by reference to an earlier act. Questions arise when this act was not voluntary as in the case of Larsonneur.

Third parties also represent an exception to this rule for requiring an act. In some circumstances one can be criminally liable for the actions of a third party.  Examples include vicarious liability for an employer and the doctrine of innocent agency.

If a voluntary act is the first part of an AR, it is also necessary that (for some crimes) it caused a certain thing to happen (ie murder needs to cause death). Causation is generally considered to be a common sense issue. The but for test applies to tell us who can't be blamed. Other that his the question is whether or not the action represented an operating and substantial cause, this has been said to mean anything above negligible. It is possible to have several causes of one death.

The chain of causation can be broken by third parties acts (but not omissions), actions of the victim and acts of g-d. Any third party act muster free, informed and voluntary which renders the ads action no longer substantial and operating. Where the third party is acting in a justified way their action will not meet these criteria. Medical practice (even poor practice) is unlikely to break chain unless it is grossly negligent and the Ds actions is no longer an operating cause. There is no explicit case law ono the omissions of third parties but it is unlikely these can break the chain (a doctor who fails to act under their duty may become an additional cause themselves however).

There are two leading cases on the acts of a victim breaking the chain. In Roberts the question was whether the act of the victim represented a natural consequence of the D's actions. This was modified in Williams and Davis to be whether it was "I the range of responses which might be expected from a V in this situation bearing in mind the peculiar characteristics of the victim."

In Blaue, the second leading case, the opinion was that even regards Religious convictions (ie a desire not to have a life saving blood transfusion, the D must take their V as they find them. It seems that this is not incompatible with the modified Roberts test put forward in Williams. 

Acts of G-d can also break the chain of causation, however this will have to be very extreme.