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Mens Rea (Although the word 'intention' implies purpose or the aim…
Mens Rea
Intention
The modern definition of intention can be derived from R v Moloney and R v Woolin. It is defined as: a defendant cannot be guilty of murder unless he or she is proved to have acted with intent to kill or cause GBH. Where a direction on intent is deemed necessary, a jury should be instructed that they should consider the extent to which the defendant foresaw death or GBH resulting from his or her actions.
Recklessness
The traditional approach to recklessness as a form of mens rea reflected the view that mens rea was to be based on the defendant's state of mind. In R v Cunningham: it was held that there would be recklessness only if the defendant took an unjustifiable risk and was aware that the risk would materialise.
There was also another test present in contrast to Cunningham. This was in relation to criminal damage. As set out in MPC v Caldwell, it was held that (objective) recklessness requires the defendant to (i) Do an which creates an obvious risk of damage and (ii) give no thought to the possibility of there being any such risk, and continues to go on to do the risk anyway
1. Objective test could lead to harsh results when applied in respect of children or those with a lower capacity to appreciate risks: In Elliot v C a child of low intelligence did not appreciate the risk due to her age and thus was convicted of criminal damage. It was obvious that this would lead to unfairness. A test for recklessness should allow the court to take into account the individual characteristics of the accused through a subjective approach - Whether the risk would have been obvious to the reasonable and prudent man
2. The 2 separate tests are confusing for the jury: It would have been more logical to separate the Caldwell test and Cunningham recklessness test because if the defendant was charged with both criminal damage and a non-fatal offences against the person, the jury would be directed to apply both tests, when both had different meanings
3. Objective test of recklessness from Caldwell blurred the distinction between the concept of recklessness and that of negligence: This also contradicted with the subjective trend within criminal law - where intention is subjectively assessed. It was stated that the mens rea of an offence should depend upon the proof of a culpable state of mind - should be assessed subjectively
R v G: As far as recklessness is concerned, the subjectivity argument would be in favour again as evidenced where it was held that a defendant could not be properly convicted under s.1 of the Criminal Damage Act 1971 on the basis that he was reckless as to whether property was destroyed or damaged when he gave no thought to the risk and, by reason of his age or his personal characteristics, the risk would not have been obvious to him, even if he had thought about it.
Halpin: expresses concern about Lord Bingham's strict subjectivist approach and he highlights serious offences which have required proof of objective recklessness or negligence
Except with strict (or absolute) liability offences, in order for an accused to be found guilty of a criminal offence, the prosecution must prove that the accused committed the actus reus of the offence, with the appropriate mens rea.
Mens rea is the mental element (which varies from one offence to another), but generally for the more serious offences, it comprises intention or recklessness with intention being reserved for the more serious crimes.
Mens rea is to be regarded as denoting the establishments of fault elements within criminal law. As far as these two forms of mens rea are concerned, liability cannot be established without evidence as to what the defendant foresaw when he committed the acts causing the prohibited results.
Although the word 'intention' implies purpose or the aim of the defendant, there has been many diverse definitions by the judiciary and it has been identified that there are different types of intention.
1. Direct intent: It was the accused's purpose or motive to bring about a result: As illustrated in R v Steane, the accused had his conviction quashed because he did not intend to assist but had to protect his family
2. Oblique intent: The accused does not necessarily desire the result but foresees it as highly probable: In Hyam v DPP, Even though the accused's purpose was to frighten the victim, but because there was evidence that the accused foresaw death or GBH was highly probable, it was justified that this state of mind could be regarded as a form of intent
Although there is an overlap between intention and motive and foresight, these concepts assist the jury in their deliberations on intention. It is clear that these concepts are not synonymous with each other.
Issue of intention: this was discussed in DPP v Smith where it was mentioned that intention should be given an objective meaning. However, this such presumption is not justifiable: where the offence is of a serious nature, the mens rea required to establish criminal liability should be based upon the subjective state of mind of the actual defendant rather than objectivity.
Juries should use their common sense in determining the meaning of intention: But this issue would arise when it comes to oblique intent.
Hyam v DPP: It was criticised that there is a need to maintain a clear distinction between the test for intention and the test for recklessness. This is to adequately distinguish between murder and manslaughter. There is also a significant moral difference between wanting a result to occur and merely foreseeing it as probable
Moloney: Lord Bridge stated that the golden rule is that the judge should avoid any elaboration and leave it to the jury to decide whether the accused acted with the necessary intent, unless the judge is convinced that further explanation is needed
Hancock v Shankland: It was held that the Moloney guidelines were "unsafe" and "misleading". The use of intention require a reference to probability since it was based on the juries' decisions. They also require an explanation that the greater the probability of a consequence, the more likely is that the consequence was foreseen and if that consequence was foreseen, the greater the probability is that that consequence was also intended
Nedrick: A narrower test was laid down which was deemed necessary. It was mentioned that the jury should not refer to intention unless they considered that the accused foresaw the consequence as a virtual certainty
Nevertheless, Nedrick was confirmed in Woolin where it was stated that if direction intention was not enough, the jury should be further directed that they were not entitled to find the necessary intention unless they felt sure that death or serious bodily harm was a virtually certain result of the defendant's action and that the defendant had appreciated that fact
(i) Motive: The reason why a person would act
(ii) Intention: The mental awareness of the person at the time of act itself
(iii) Foresight: Can be an evidence of intention but is not a conclusive proof of it
Therefore, s.8 of the Criminal Justice Act 1967 confirms that intention is to be subjectively assessed
2 questions should be asked for the jury:
(i) Was death or GBH in a murder case a natural consequence of the defendant's voluntary act? (ii) Did the defendant foresee that consequence as being a natural consequence of his act? If yes to both, then the jury can infer that the defendant had intended
Woolin is specifically used in relation to murder and it remains unclear what approach the courts should take in respect of other offences
It was criticised that this decision would be too narrow because a jury must ensure that there is virtual certainty of death
Wide scope of problem for intention: Different juries may have different ideas as to what constitutes intention (some insisting that purpose is necessary while others are prepared to accept that only foresight of a probable consequence is required). There is a risk of inconsistent decisions and it is therefore not surprising that the Law Commission have recommended a standard definition of intention to be followed
Recklessness implies risk-taking, as opposed to intention where the defendant foresee consequence as a certainty.
However, although Caldwell might have been a desirable policy goal because it made it easier for the prosecution to secure convictions, it was criticised throughout its existence because it threw up many difficult issues
Mere stupidity should not expose the defendant to the conviction of a serious crime and thus recklessness was replaced, by a need to prove that it was 'dangerous' as illustrated through the Road Traffic Act 1991. This suggest that Parliament liked the idea of criminal liability based on failure to think about the risk, but was not comfortable with the idea that 'traditional' mens rea terms like 'recklessness' might be used to described it
Mens rea normally involve an examination of the defendant's state of mind to ascertain a degree of awareness of the consequences of his actions. The law will therefore allow departures from this where the social utility of doing so outweighs the need to ensure the fairness to the defendant that ensues from adopting a subjective approach to fault
Lord Bingham observed that it would not be blameworthy to do something involving a risk of injury to another if one genuinely did not perceive the risk
Crosby:A definition of recklessness that is too subjective can allow those who are blameworthy to avoid criminal liability. Alternatively, a test that is too objective can lead to injustice without being capacity based. So a synthesis of two approaches is required for a balance.