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- The phrase mens rea = guilty mind
- In murder the mens rea requirement is called malice aforethought. This means intention either to kill V or cause serious injury.
- Direct Intention or Indirect Intention: The test of what the defendant foresaw and intended is always a subjective one based on what the jury believes the defendant actually foresaw and intended and not what he should have foreseen or intended or what they jury might have foreseen or intended in the same situation
- D.P.P v Smith (1961)
- Jury may find intention from this
- Oblique intent (also known as foresight intent) covers the situation where the consequence is foreseen by the defendant as virtually certain, although it is not desired for its own sake, and the defendant goes ahead with his actions anyway
- Defendant knows death most likely to happen (virtually certain)
- Or a person knows or believes that he cannot achieve his actual purpose without bringing about another result- He may not want B to occur.
- Hyam (1975
- Moloney (1985)
- Hancock and Shankland (1986)
- Nedrick (1986)
- The D must take an unreasonable risk
- Taking a risk is not necessarily reckless. The question is whether the risk was one which a reasonable and prudent man might have taken in the circumstances known to the D.
- Objective test
- What was the social value of the activity involved?
- How serious was the harm which might have caused?
- What was the probability that harm might be caused?
- The D must be aware the risk
- It was held in an early case that recklessness was a subjective concept (what the D was thinking at the time of offence committed)
R v Cunningham (1957)
- D ripped a gas-meter from the cellar wall of a house in order to steal the money inside. He left a ruptured pipe which leaked gas, poisoning his mother in law who was sleeping next door. He was charged with ‘maliciously administering a noxious substance so as to endanger life’.
- The appeal court decided that the word ‘maliciously’ meant intentionally or recklessly administering a noxious substance. Recklessly was defined to mean that the accused had foreseen the particular kind of harm that might be done and had taken the risk of it.
- D convicted in the Crown Court after the judge directed the jury that ‘maliciously’ simply meant ‘wickedly’.
- Conviction quashed by CA
- To be convicted he needed to be aware of the risk
- If you’re not aware of the risk you can’t be convicted
- Anyone can claim they weren’t aware of the risks/or they didn’t stop to think.
R v Stephenson (1979)
- D was schizophrenic, homeless man who one night to shelter in a hollowed out haystack in a field in the North York Moors, lighting a fire of twigs and straw in order to keep warm. The stack caught fire, damaging various pieces of farming equipment. D charged with recklessly causing damage. CA required D himself to have foreseen the risk of criminal damage
- Trial Judge directed the jury that the defendant was reckless if he closed his mind to the obvious risk of starting a fire in the haystack
- Conviction quashed on appeal.
- Schizophrenic not necessarily award of where he was or what he was doing- May not have known the risk of lighting a fire.
- Criticism of subjective recklessness
- We don’t not blame Stephenson because he was mentally ill but what if Stephenson was not schizophrenic but had simply not bothered to think about the risks involved in lighting a fire in the haystack? He might have been very tired or drunk or foolish? Really Blameless?
MPC v Caldwell (1981)
- D formed a grievance against P, the proprietor of a residential hotel and having got very drunk, decided to revenge himself by setting fire to the hotel-No serious harm done.
- NEW DEFINITION- NO LONGER THE LAW
- The D does an act which creates an ‘obvious risk’ of criminal damage and when he does the act ‘he has not given any thought’ to the possibility of there being any such risk.- Easier test to satisfy than Cunningham but also quite harsh!
- Problems: Doesn’t ask why they failed to stop and think
- Doesn’t protect vulnerable people.
Problems with the Caldwell test
- Caldwell did not overrule the old Cunningham test; both tests still existed but were applied to different offences. The courts didn’t explain which test should be applied to which crime. This created unnecessary confusion.
- The higher Cunningham standard was applied to assault and rape, and the lower Caldwell standard to criminal damage. This meant property was better protected than people.
- The law should not punish people for their mere inadequacy or not being able to foresee their actions. It is unfair and this was seen in the cases of Stephenson and Elliott.
- Punishes someone who does consider whether there is a risk, but mistakenly concludes that there is no risk.
DPP v Smith (1961)
- A police officer tried to stop a car that had been involved in a robbery by clinging to its bonnet as the car drove off and was killed. The D said he did not want to kill the police officer. He had simply wanted to get away.
- HL said that a person intended death or serious injury if a reasonable person would have foreseen that death or serious injury would result from the act of the D even if the D did not actually foresee this- This ignores what D was thinking at the time.
- Overruled by the Criminal Justice Act (1967) s.8. The key issue is what the D actually foresaw and intended not what he or she should have foreseen or intended.
- DPP v Smith got the law wrong – Said it was objective. IT’S SUBJECTIVE
- Practice statement introduced largely because of the mistake in this case
- Doesn’t protect vulnerable people (reasonable person) – handicapped, mentally disabled
Hyam v DPP (1975)
- D, in order to frighten (didn’t intend death) Mrs Booth, her rival for the affections of X, put blazing newspapers through the letterbox of Mrs Booth and caused the death of her 2 children.
- The jury were directed that D was guilty if she knew it was highly probable that her act would cause at least serious bodily harm.
- Jury convicted her of murder.
- This is arguably a less blameworthy state if mind than wanting someone to die. Highly probable is lower than a virtual certainty and it wasn’t virtually certain to kill.
- It is also not the definition of intention found in the dictionary
- This makes it easier to convict but could be harsh on the D
Evaluations Hyam v DPP (1975) Problems:
- Popular meaning of intention is a person wanting a particular result to happen when it is his aim or purpose. Hyam said that a person intends a result when he realises it is highly probable result of his actions – WIDE APPROACH. “ definitions of intention may confuse a jury
- Difficult to distinguish intention from recklessness. If a result was foreseen as highly probable, this was intention –Hyam. If it was foreseen as merely probable or possible- recklessness. This means it’s hard to distinguish murder from manslaughter which leads to inconsistent verdicts
- It’s a very broad concept- it includes all states of mind from a high probability to a virtual certainty- this means all these states of mind are simply ‘murder’ and no account is taken of the blameworthiness of each. Arguably murder should be used for the most serious states of mind.
Evaluations Hyam v DPP (1975) Advantages:
- Easier conviction of murder·
- Allows the jury some discretion
R v Maloney
- D shot his stepfather in the head in the course of a drunken game to establish who was quicker on draw. He pulled the trigger in response to a challenge and may not have realised the gun was so aimed.
- Conviction for manslaughter substituted on appeal.
- Natural consequence= virtually certain consequence
- Conviction for murder quashed by HL because trial judge had misdirected the jury that D intended serious harm if he foresaw that it would probably happen.
- Left a problem with regards to the degree of probability required
R v Hancock and Shankland (1986)
- 2 striking miners stood on a bridge, pushed concrete blocks off it and they struck a taxi taking a working miner to work and killed the taxi driver. They said they intended to push the blocks on to the lane and not the inside lane. They had intended to frighten and deter not injure or kill. At their trial the judge closely followed the Moloney guidelines.
- The CA quashed the convictions for murder.
- The guidelines were defective. They jury might well have understood natural consequence to mean a direct consequence and not an overwhelming probability. CA and the HL both agreed that awareness that the consequence is virtually certain is not intention, but only evidence for which a jury may infer intention but no attempt was made to provide correct guidelines for the future
- Convicted of Manslaughter
- This overruled Maloney
R v Nedrick (1986)
- The D poured paraffin through a women’s she disliked letterbox and set it alight, killing her child. D claimed he wanted merely to frighten her.
- Conviction for murder at first instance quashed after the trial judge directed the jury using Hyam v DPP.
- CA proposed ‘the jury should be directed that they are not entitled to infer the necessary intention unless they feel sure that death or serious bodily injury was a VIRTUAL CERTAINTY. As a result of the D’s actions and that the D appreciated that such was the case.
R v Woollin (1999)
- D had killed his 3 month old son by throwing him against a wall, fracturing his skull, after the baby started to choke on his food. He claimed that he had no intended or forseen death or serious injury.
- Convicted of murder at first instance
- HL approved the Nedrick direction but made some slight changes. The word infer became FIND. – Nedrick/ Woollin direction.
- The trial judge directed the jury to ask if the defendant appreciated if there was a substantial injury when he threw the child.
- This was a misdirection: manslaughter substituted.
- Death/serious injury must be a virtual certainty and D must know that.
- Jury must ‘find’ the intention to kill (but don’t have to.
- The lack of strict definition of oblique intention allows juries to expand or contract their definition of intention to meet the justice of the individual case.
- Inconsistencies in jury verdicts
- If the D thinks he knows that death or serious injury is virtually certain to occur as a result of his act – why does the law insist that it actually has to be in order to allow the
- jury to find intention
- REFORM- PUT IT ON A STATUTORY FOOTING
Motive is not an element of an offence
- IF the D causes an actus reus with mens rea he is guilty of the crime and it is entirely irrelevant to his guilt that he had a good motive.
- D may be lawfully convicted of a crime whatever his motive might be, or even if he does have a motive
Ignorance of the law is no defence
- This is so even though it appears that the D’s ignorance of the law was quite reasonable and even of it was quite impossible for him to know of the law in question
- Bailey (1800) - D convicted of an offence created by an Act of Parliament which was passed while he was on the high sea although he committed the act before the end of the
- voyage when he could not possibly have known the Act.
- The appellant was an anaesthetist in charge of a patient during an eye operation. During the operation an oxygen pipe became disconnected and the patient died. The appellant failed to notice or respond to obvious signs of disconnection. The jury convicted him of gross negligence manslaughter.
- A reasonable anaesthetist should have not have become negligent
- His conviction for gross negligence manslaughter was upheld.
- D had a quarrel in a pub with another person. He took off his belt and aimed a blow at this person which struck him lightly but the belt bounded off him and hit another man and wounded him severely.
- It was held that the D was properly convicted of unlawfully and maliciously wounding. The D’s intention to wound the person he aimed at was transferred to the person actually injured.
- D involved in a fight outside a pub. At about 11 pm a crowd of about 40-50 had been turned out of the pub for being disorderly. They began fighting. The D separated himself from the group, picked up a large stone and threw it in the direction of the others. The stone missed them and smashed a large window.
- He was convicted of malicious damage but his conviction was quashed. The jury found that he intended to throw the stone at the people but he did not intend to break the window.
- He could not be convicted of criminal damage because the 2 crimes were different.
- This case shows the limitations of transferred malice.
R v G and R (2003)
- 2 D’s aged 11 and 12,entered the backyard of a shop where they found bundles of newspapers which they set alight. At trial the boys said they thought the burning newspapers would extinguish themselves. In fact they spread to the shop and adjoining buildings.
- HL quashed the conviction, overruling the CA and its own earlier conviction in Caldwell
- Caldwell recklessness was obviously unfair. Serious crimes should require proof of a subjective state of mind.
- Acquitted- Caldwell test abandoned and Cunningham reaffirmed.
A case which shows a problem with the
Caldwell test: Elliott v C (1983)
- A backward 14 year old girl entered a garden shed and set fire to it
- Acquitted by magistrates who found that she had given no thought to the risk and the risk would not have been obvious to her even if she had.
- Prosecution appeal- The risk would have been obvious to a reasonable person who stopped to think. The magistrates directed to convict.
- The decision was very unfair because it convicted those who, even if they did stop to think, would not see the risk. The Caldwell test operates very harshly on young people, disabled and mentally ill.
- Where intention or recklessness is requires a state of mind must also be proved.
- Caldwell recklessness does give state of mind but only in the sense that not giving thought is a state of mind
- Negligence may be proved by showing that the D’s conduct failed to measure up to an objective standard
- The D cannot say ‘I did not foresee the risk’ or ‘I considered whether there was a risk and decided there was none’. No a negligent crime but a reckless one.
- Where the risk is one that ought to have foreseen
- Conduct that departs from the standard to be expected of a reasonable person – Jury decide.
- Can be proved without establishing anything that is going on in the defendants mind.
- This is not to say that a person’s state if mind is always irrelevant when negligence is at issue. The defendant may for example have special knowledge which an ordinary person would not possess. Question then is whether a reasonable person with that knowledge would have acted as the D did. – R v ADAMAKO (1994)
The doctrine of transferred malice
- If the D with the mens rea of a particular crime does an act which causes the actus reus of the same crime he is liable – even if the result is in some respects an unintended one.
- Latimer (1886): - However if D, with the mens rea of one crime does an act which causes the actus reus of another crime, the D cannot be convicted of either offence.
- Pembliton (1874): – Shows limitations to transferred malice
- Both intention and recklessness may be transferred.