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Fault element of Mens Rea (Intention (Oblique Intention (R v Woollin…
Fault element of Mens Rea
Intention
Direct Intention
Oblique Intention
R v Moloney (1985)
D and stepfather had engaged on a long drink spree
Test of intention
Test of natural consequence: you can foresee the natural consequence = you intended
Lord Bridge: “First, was death or really serious injury in a murder case … a
natural consequence
of the D’s voluntary act? Secondly, did the D
foresee
that consequence as being a natural consequence of his act? The jury should then be told that if they answer yes to both questions it is a proper inference for them to draw that he intended that consequence.”
Held - conviction of murder was substituted for manslaughter
R v Hancock and Shankland (1986) [BAD LAW]
Moloney 's direction was misleading as it did not refer to the degree of probability required
2 miners killed a taxi driver
Wanted to block the road using concrete
Taxi was struck by concrete and driver died
Lord Lane: “The Moloney guidelines as they stand are unsafe and misleading. They require a reference to probability. They also require an explanation that the greater the probability of a consequence the more likely it is that the consequence was foreseen and that if that consequence was foreseen the greater the probability is that that consequence was also intended.”
Lord Scarman: "the greater the possibility of a consequence, the more likely it is that the consequence was foreseen and… if that consequence was foreseen the greater the probability is that the consequence was also intended… The probability, however high, of a consequence is only a factor."
R v Nedrick (1986) CA [Virtual Certainty Test]
Current test for intention
Appellant set fire to it V's letterbox as he did not like her
Her child died in the fire
Nedrick admitted to arson but did not intend to kill anyone
Trial judge misdirected the jury
CA reviewed Moloney and Hancook & Shankland -
formulated virtual certainty test that conveyed inevitability (Moloney) and foreseeability (Hancock
)
Lord Lane: "the jury should be directed that they are not entitled to infer the necessary intention unless they feel sure that death or serious bodily harm was a
virtual certainty
(barring some unforeseen intervention) as a result of the defendant’s actions and that the
defendant appreciated that such was the case
. Where a man realises that it is for all practical purposes inevitable that his actions will result in death or serious harm, the inference may be irresistible that he intended that result, however little he may have desired or wished it to happen. The decision is one for the jury to be reached on a consideration of all the evidence."
The words "to find" were to be preferred to the words "to infer" which could detract from the clarity of the direction
R v Woollin (1999) HOL
Prove of intent
W killed 3 month old son after throwing him onto a hard surface in a fit of temper
Judge directed jury - if they were satisfied that the appellant had realised that there was a substantial risk that the child would suffer serious harm, they could convict him of murder
CA dismissed appeal - it was not a misdirection to explain oblique intention to the jury in terms of
'appreciation of substantial risk'
Departed from
Nedrick
direction and used
"substantial risk"
(which blurred the distinction between intention and recklessness
HL reversed CA's decision and restored
virtual certainty test
Approved virtual certainty test in Nedrick, subjected to the change of the word "infer" to "find"
Appeal allowed, conviction of murder quashed, conviction of manslaughter substituted
Restore virtual certainty test
Lord Steyn: "Only if death/ GBH was a (1) virtually certain consequence of D's action and (2) D realises this was so, can jury find that D intended death or GBH."
Uncertainties about Woollin test
What does virtually certain mean
Virtually certain: result will occur unless something completely unexpected occurs
It means as certain as we can be about anything
If it is shown that the event was virtually certain to result from D's act and D appreciates this, must the jury find intent or may the jury find intention?
In Matthews, it was a misdirection for a judge to tell a jury that if a result was foreseen as virtually certain then they must find intention
How should jury decide whether or not to find intention
Consider motives and circumstances
Whether using the Woollin test, it is necessary to show that the result was actually virtually certain, as well as showing that D believed it was
Nedrick direction to the jury - both must be shown
Substantive/ Evidential Rule
R v Matthews and Alleyne (2003)
D's appreciation of virtual certainty of V's death was insufficient to establish mens rea for murder
If D appreciated that death was a virtual certainty unless some attempted was made to save V, and D had no intention of saving him = found the necessary intention of murder
M and A appealed against their convictions for murder
Robbed him and threw him off the bridge despite D telling them that he could not swim
V drowned
D wanted to silence him and appreciated that at the time V was thrown from the bridge, his death was a virtual certainty
Held - dismissing the appeals
Law has not reached a definition of intent in murder in terms of appreciation of virtual certainty
Woollin was not regarded as the laying down a substantive rule of law
“In our judgment, however, the law has not yet reached a definition of intent in murder in terms of appreciation of a virtual certainty…we do not regard Woollin as yet reaching or laying down a substantive rule of law…Having said that, however, we think that, once what is required is an appreciation of virtual certainty of death, and not some lesser foresight of merely probable consequences, there is very little to choose between a rule of evidence and one of substantive law”
Recklessness
Cunningham Recklessness (Subjective)
Cunningham (1957)
Definition:
Necessary to show that the accused foresaw that there was a risk (it does not have to be foreseen as highly likely to occur)
The question is whether the accused foresaw that there was a risk, not whether the risk was obvious or would have been foreseen by a reasonable person
Byrne LJ: "The accused has foreseen that the particular kind of harm might be done and yet gone on to take the risk of it."
R v Parker (1977)
Parker was fined £10 plus 75p compensation to the post office after causing damage to a telephone kiosk
Had a terrible evening because he overslept on the train home after a function in London and missed his station
He was charged an excess fare for travelling further than his ticket permitted
Tried to telephone a taxi but telephone did not work
Was seen by the police to 'smash down' a telephone handset onto the dialing box of public telephone and damage it
"I did not intend to damage it nor was I reckless as to whether I damaged it or not. It did not occur to me that what I was doing might damage it. I was simply reacting to the frustration which I felt."
Question - Whether it was appellant who had caused the damage to the telephone receiver, as he said it was not he who had caused the damage. The degree of force which he had used when bringing the handset down on to the receiver
Lord Justice Lane: "He was deliberately closing his mind to the obvious - the obvious being that damage in these circumstances was inevitable. The deliberate closing of the mind is the equivalent of knowledge and a man certainly cannot escape consequences of his action."
Appeal dismissed
R v Briggs (1977)
- "A man is reckless in the sense required when he carries out a deliberate act knowing or closing his mind to the obvious fact that there is some risk of damage resulting from that act but nevertheless continuing in the performance of that act."
R v Stephenson (1979)
D suffered from schizophrenia
Lit a fire in haystack and destroyed it
Because of his illness, he did not realise that in lighting a match there was a risk to the haystack
Although the risk was obvious and most people would have foreseen the risk, D did not, and so he was not Cunningham reckless
Court emphasized the question was not even whether D could have foreseen the risk
He did not foresee it and so was not reckless
There must actually be a risk which it was unjustifiable or unreasonable to take,
Tthe defendant must have foreseen the possibility of the consequence occurring
Caldwell Recklessness (Objective)
R v Caldwell (1982)
Elliot v C (1983)
Restoration of a single test + Overrule Caldwell
R v G (2003)
Negligence
if D behaved in a way which a reasonable person would not
objective test
no need to show that D intended or foresaw a risk
conduct
Knowledge/ Belief
Motive is irrelevant
R v Inglis (2010)
Tried to murder her son
Son fell out off the ambulance and hit his head
Went into a coma but there was a possibility of recovery
Mother went into depression, convinced herself that son was better off dead
Injected him with heroin
Survived despite deteriorated health
Second attempt, injected him again
Held - attempted murder
She felt that her motives were good
Lord Chief Justice: "we must underline that the law of murder does not distinguish between murder committed for malevolent reasons and murder motivated by familial love"
Does not distinguish bad motives from good ones -> motive irrelevant