Mens Rea: The elements of a crime that is the intent, or 'guilty mind'.
‘those who skate on thin ice can hardly expect to find a sign which will denote the precise spot where he will fall in’. [1]
Objective and Subjective Fault:
Objective:
Objectivity is a reasonable person’s evaluation would have been in a given situation.
Intention is ‘what the ordinary reasonable man or woman would in all the circumstances of the case have contemplated as the natural and probable result’. [2]
Subjective:
Subjectivity is what a particular defendant was thinking in the specific situation.
‘The probability of the consequence must be little short of overwhelming before it will establish the necessary intent… Did D foresee the consequence as a natural consequence of his act?’ [3]
Prosecuting the Fault Element:
Some offences require objective fault, while others require subjective fault.
The CPS guidance on death by dangerous driving is that it ‘would be obvious to a competent and careful driver that driving in that way would be dangerous’ [4]. This is therefore an objective approach. However, its application in court could be either objective or subjective as it is impossible to avoid some prejudices / bias within the jurors. The objective approach can therefore be satisfied by subjective reasoning.
Types of Mens Rea:
Intention:
Duff’s Test of Failure:
If the result of an act not happening would be regarded by the defendant as a failure, then they had the intention when they committed the actus reus.
Direct / Pure Intention:
Direct intention is where the result of the intention is the purpose of an act or omission.
Intention is an ordinary English word, so it should be left to the jury to decide if the prosecution has satisfactorily proven that the defendant has intent. [5]
Indirect / Oblique Intention:
Indirect intention is where the event is a natural consequence of a voluntary act that they could have foreseen but did not necessarily directly intend to occur. The result may not necessarily be the defendant’s aim or purpose, but it was a virtual certainty of their actions.
Where the ordinary English word isn’t enough, but there was a high probability of death or harm, indirect intention may be used.
Objective Intention EG:
In Smith, S was driving away with stolen goods. A policeman, P, jumps on the car bonnet and S drives so that the policeman falls off the car. P is thrown onto the path of another car and died. S is convicted of murder. The judge instructed the jury that that they must examine what an ordinary and competent person would have expected because of S’s driving. If they would not have contemplated death, they are not guilty of murder. The judgement was overturned in the Court of Appeal, but then upheld in the House of Lords.
Subjective Intention EG:
In Hyam, H set fire to V’s house. Some people were in the house, who died. H was convicted of murder. She appealed on the grounds that she had no intention to kill, only to frighten. The conviction was upheld as there was a high probability that someone inside could be killed, which she should've known.
In Hancock and Shankland, 2 miners tried to intimidate a miner that went to work during a strike. H&S threw concrete blocks at V’s car, killing the driver. They were convicted of murder and appealed as it was only their intent to frighten, not murder. The House of Lords states that the higher the probability of death, the more likely they are to be guilty.
In Nedrick, D set fire to house. People in the house died. D is convicted of murder. Again, he appealed on the grounds that his actions were only to frighten, not kill. The House of Lords ruled that the jury should question whether the foresight of death was a virtual certainty, and whether D appreciated this, to determine whether they were guilty of murder.
The jury have ‘moral elbow room’ in these situations; they are entitled to find intention, but they don’t have to.
Recklessness:
Objective Recklessness EG:
In Caldwell, it was held that D was reckless if they gave no thought to an obvious or serious risk.
In Elliott v C, a 14-year-old with learning difficulties was convicted of arson. It was appealed that she did not foresee any risk because she was incapable of doing so. Because of the objective approach in Caldwell, the conviction was upheld.
Subjective Recklessness EG:
In Cunningham, it was held that D had to have foreseen the outcome of their reckless behaviour and still gone ahead with the risk to be guilty.
In R v G, the House of Lords overruled the decision made in Elliott perhaps out of sympathy from the justices as defendants were children. They ruled that the law had been misinterpreted. This reinstated the subjective test for recklessness.
The House of Lords reinstated subjectivity to recklessness as it would be unfair to punish someone who could not perceive risk, just because they are being compared to another person.
Note: objective mens rea still exists in statutes. EG: Road Traffic Act, Sexual Offences Act (Rape).
Negligence:
Carelessness. EG: driving without due care and attention.
Gross Negligence. EG medical negligence.
In Bateman, it was established that for manslaughter by gross negligence to be found by the jury, the negligence went beyond mere error / matter of compensation and showed ‘disregard for life and safety of others’. This is an objective standard.
Other Examples of Mens Rea:
Dishonesty
Belief
Knowledge
Inconsiderateness etc.
Strict liability offences do not require mens rea.
Issues with Mens Rea:
Correspondence:
The actus reus and mens rea have to correspond to one another.
This is not always followed strictly by the law. EG: the actus reus for murder is causing death, but the mens rea only needs to be an intent to cause GBH.
Coincidence:
Both the actus reus and mens rea must occur at the same time.
In Thabo Meli, V was rolled down a hill by D and left. V didn’t die from the roll but exposure overnight. Though actus reus and mens rea didn’t happen at the same time, it was ruled that D’s actions were in a series of events that lead to V’s death. Therefore, D's actions were part of a continuing act.
Transferred Malice:
Transferred malice is where the mens rea of one offence can be transferred to another, usually greater, offence.
In Saunders v Archer, D intends to kill V1. V1 unknowingly gives poison to V2. D’s intention to kill V1 is transferred to V2, so D is guilty.
In Pembliton, D throws stone at V, whish smashes a window. It was ruled that malice cannot be transferred from one offence to another (from personal harm to reckless damage).
In Attorney General’s Ref 3/94, D stabs V1 (pregnant). V2 (baby) is prematurely born and dies. The House of Lords decide that malice from V1 is not transferred to V2 as the foetus is not yet a legal person. D did not intend to harm V2, only V1.
References:
[1] Knuller (Publishing, etc) Ltd v DPP [1973] AC 435, 463 (Lord Morris) [2] R v Smith [1961] AC 290 [3] R v Moloney [1985] 1 AC 905 [4] Road Traffic Act 1998, s1 [5] R v Moloney [1985] 1 AC 905 (Bridge LJ)
Cases Mentioned:
DPP v Smith [1961] AC 290
R v Hyam [1975] AC 55
R v Hancock and Shankland [1985] UKHL 9
R v Nedrick [1986] 1 WLR 1025
R v Caldwell [1981] 1 All ER 961
Elliott v C [1983] 1 WLR 939
R v Cunningham [1957] 3 WLR 76
R v G & R [2003] UKHL 50
R v Bateman (1925) 19 Cr App R 8 (CCA) (Lord Hewart CJ)
R v Thabo Meli [1954] 1 WLR 228
Saunders v Archer (1573) 2 Plowd 473
R v Pembliton (1874) LR 2 CCR 119
Attorney General’s Ref (No 3 of 1994) [1997] 3 WLR 421
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