1. Mens Rea

2. Aim and Objectives Aim: to familiarise the students with the mens rea element of a crime. Objectives: YSBAT Define mens rea Explain intention and recklessness Discuss the coincidence of actus reus and mens rea.

3. Mens rea Mens rea is the Latin for ‘guilty mind’ and traditionally refers to the state of mind of the person committing the crime. The required mens rea varies depending on the offence, but there are two main states of mind which separately or together can constitute the necessary mens rea of a criminal offence: intention and recklessness.

4. Subjective and objective tests When discussing mens rea we often refer to the difference between subjective and objective tests.

5. Subjective Test This involves looking at what the actual defendant was thinking (or in practice, what the magistrates or jury believe the D was thinking!)

6. Objective Test This considers what a reasonable person would have thought in the defendant’s position. The courts today are showing a strong preference for subjective tests for mens rea.

7. Intention Intention is a subjective concept: a court is concerned purely with what the defendant was intending at the time of the offence, and not what a reasonable person would have intended in the same circumstances.

8. Intention To help comprehend of the legal meaning of intention, the concept can be divided into two: direct and oblique intention.

9. Direct Intention This is where the consequence of an intention is actually desired. EXAMPLE A shoots B because A wants to kill B

10. Oblique intention However, a jury is also entitled to find intention where a D did not desire a result, but it is a virtually certain consequence of the act, and the accused realises this and goes ahead anyway. This is called oblique or indirect intention

11. Oblique intention Example A throws a rock at B through a closed window, hoping to hit B on the head with it. A may not actively want the window to smash, but knows that it will happen. Therefore, when A throws the rock A intends to break the window as well as to hit B.

12. Recklessness In everyday language, recklessness means taking an unjustified risk of a particular consequence occurring. Recklessness is the mens rea state sufficient for many crimes, some very serious, including manslaughter.

13. The definition of recklessness The question that has troubled the courts for years is whether recklessness should be assessed ‘subjectively’ or ‘objectively’. Its legal definition has radically changed in recent years. The original case on the definition of recklessness is Cunningham.

14. 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, leaking gas, which seeped through into the neighbouring house, where V (actually the mother of D’s fiancée) inhaled it.

15. Cunningham (1957) He was charged with maliciously administering a noxious substance so as to endanger life, and convicted. The court decided on a subjective test for recklessness, i.e., had the accused foreseen that particular kind of harm might be done, and yet went on to take the risk anyway.

16. The Caldwell years 1981-2003 In 1981, the House of Lords in Metropolitan Police Commissioner v Caldwell, a criminal damage case, introduced an objective form of recklessness. That is, recklessness was to be determined according to what the ‘ordinary, prudent individual’ would have foreseen, as opposed to the Cunningham test of what the defendant actually did foresee.

17. The Caldwell years 1981-2003 The Caldwell test was capable of unfairness and came under significant judicial and academic criticism. During the late 1980s and continuing into the 1990s the courts began a gradual movement to reject Caldwell and return to the Cunningham subjective test.

18. R v G and another (2003) In October 2003, the former House of Lords completed the circle began 22 years earlier by overruling Caldwell. In R v G and another (2003), their Lordships unanimously declared that the objective test for recklessness was wrong and restored the Cunningham subjective test for criminal damage. The case itself involved arson, as had Caldwell.

19. The new definition of recklessness In order to define recklessness, the House of Lords in R v G and another (2003) preferred to use the words of the Draft Code rather than its own words in Cunningham. In future it is likely that the Draft Code’s definition will become the single definition of recklessness.

20. Draft Code A person acts recklessly…with respect to- (i) a circumstance when he is aware of a risk that it exists or will exist; (ii) a result when he is aware of a risk that it will occur; and it is, in the circumstances known to him, unreasonable to take the risk.

21. Negligence Negligence is the mental element that must be proved in order to impose liability on defendants in some forms of civil litigation. The D is liable if he or she fails to appreciate circumstances or consequences that would have been appreciated by the reasonable man

22. The exception in criminal law This mental element is rarely found in mainstream criminal law, with one exception, because it is seen as too low a threshold to justify imposing punishment on the defendant. The exception is gross negligent manslaughter.

23. Gross negligence manslaughter Generally applies to cases of involuntary manslaughter. In some cases the degree of negligence is so high that it may create a state of mind.

24. R v Adomako (1994) During an operation, A failed to notice that the oxygen supply to the patient had been disconnected. The oxygen was disconnected for 6 minutes. The patient suffered a heart attack and died. It was the first case of gross negligence manslaughter. A was convicted and the conviction was upheld by the House of Lords.

25. Transferred malice If A shoots at B, intending to kill him, but happens to miss, and shoots and kills C instead, A will be liable for the murder of C. This is because of the principle known as transferred malice.

26. What is transferred malice? Under this principle, if A has the mens rea of a particular crime and does the actus reus of the crime, A is guilty of the crime even though the actus reus may differ in some way from that intended. The mens rea is simply transferred to the new actus reus. Either intention or recklessness can be transferred.

27. The effect of transferred malice As a result the D will be liable for the same crime even if the V is not the intended V.

28. Latimer (1886) The D aimed a blow at someone with his belt. The belt recoiled off that person and hit the V, who was severely injured. The court held that Latimer was liable for maliciously wounding the unexpected V. His intention to wound the person he aimed at was transferred to the person actually injured.

29. Suppose that D, the victim of domestic violence, forms a vague intention to kill her husband, V, at some convenient moment in the future if it should present itself, perhaps by pushing him off the ladder when he is painting the house. Ten minutes later, D reverses her car from the garage, oblivious of the fact that V is sitting in the driveway attempting to repair the lawnmower, and runs him over, killing him instantly. Is D guilty of V’s murder?

30. There are certain exceptions to this principle, however. First, where the actus reus takes the form of a continuing act, it has been held that it is sufficient if D forms mens rea at some point during the duration of the act. See previous notes - Fagan v Metropolitan Police Commissioner (1969) Coincidence of actus reus and mens rea

31. The second exception is where the actus reus is itself part of some larger sequence of events, it may be sufficient that D forms mens rea at some point during that sequence. Thabo Meli and others (1954) Le Brun (1991)

32. Thabo Meli and others (1954) The defendants, in accordance with a pre- arranged plan, took V to a hut where they beat him over the head. Believing him to be dead, they rolled his body over a cliff, attempting to make it look like an accidental fall. In fact, V was still alive at this point in time but eventually died from exposure.

33. Thabo Meli and others (1954) The defendants were convicted of murder and the actus reus (death from exposure) was separated in time from the mens rea (present during the attack in the hut but no later, because they thought V was dead).

34. Thabo Meli and others (1954) The judges stated ‘it was impossible to divide up what was really one series of acts in this way’. The judges appeared to also suggest that the judgement might have been different if the acts were not part of a pre-arranged plan.

35. Le Brun (1991) D had a argument with his wife as they made their way home late one night. Eventually he punched her on the chin and knocked her unconscious. While attempting to drag away what he thought was her dead body he dropped her, so that she hit her head on the kerb and died.

36. Le Brun (1991) The jury was told that they could convict the D of murder or manslaughter (depending on the mental element present when the punch was thrown), if D accidentally dropped the V while (i) attempting to move her against her wishes and /or (ii) attempting to dispose of her ‘body’ or otherwise cover up the assault. He was convicted of manslaughter.

37. Recap questions What is mens rea? What is the difference between subjective and objective? How do the courts decide ‘intention’? (Discuss direct and oblique intention) What is the current test for recklessness? When can negligence form a mental element in criminal law? What is transferred malice?