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MENS REA - Coggle Diagram
MENS REA
RECKLESSNESS
(Hybrid) Test:
1) Did D see the risk and take it anyway?
AND
2) Was the risk an unreasonable one to take?
- R v G (2003) / Cunningham (1957)
foresight of a risk being sufficient = Brady (2006)
Advantages of current (hybrid) test:
- focuses on the mens rea
- protects those incapable of seeing a risk from being liable; Stephenson (1979)
- relatively easy question for the jury
- recognises the importance of the risk being unreasonable
Disadvantages of current (hybrid) test:
- under inclusive; protects those incapable of foresight without good reason, e.g. ) drunk, rage
- leads to artificiality as the law gets people 'on the hook', e.g. deliberately closing one's mind the the obvious; Parker (1977)
Caldwell (Objective) Test - Former Test:
1) D does an act which in fact creates an obvious risk that property will be destroyed or damaged?
AND
2) When D did the act, he either had not given any thought to the possibility of there being such a risk or recognised that there was some risk involved and had nonetheless gone on to do so
- Lawrence (1982) supported this test but used the term 'serious risk' instead of 'obvious risk'
Advantages of the Caldwell test:
- covers those who should be found reckless due to foresight
- jury doesn't have to take part in the complex questions
- easier for jury to understand
Disadvantages of the Caldwell Test:
- over inclusive, as it covers those incapable of foresight; Elliot v C (1983)
- not necessarily a test for negligence
- under inclusive; Shimmen (1986)
Why retreat from the Caldwell Test?
Lord Bingum in R v G (2003):
- conviction requires a blameworthy state of mind
- capable of leading to unfairness
- criticism of the Caldwell test from academics, judges,etc shouldn't be ignored
- interpretation of 'recklessly' in s.1 Criminal Damage Act 1971 was a misinterpretation
DIRECT INTENTION
Types of intention:
- direct, indirect, basic intent, specific intent, ulterior intent
Intention is not motive
- Cox (1992)
BUT
- Steane (1947); D was charged with assisting the enemy
Intention is not premeditation
Intention is not foresight
Where D's primary purpose is unclear and foresight death is only
- Hancock and Shankland (1986)
Test:
Golden Rule = was it D's aim or purpose?
- Moloney (1985)
'ordinary meaning' = D's aim or purpose
- Cuntliffe v Goodman (1950)
TRANSFERRED MALICE
Definition = the transfer of D's mens rea from one person/ object to another
- Mitchell (1983)
- Latimer (1986)
LIMITATIONS
1) Cannot transfer between offences
- Pembleton (1987)
2) Cannot be transferred twice
- AG Reference (No. 3 of 1994) (1997)
When transferred malice isn't needed:
- cases of mistaken identity
- instances of general malice
INDIRECT INTENTION
Old Law
D can be found to intend something that wasn't their aim or purpose
- Hyam (1975); Lord Diplock said a 'high probability of serious bodily harm consisted as mens rea for murder'
- Nedrick (1986); Lord Lane said you're not entitled to infer the necessary intention unless they feel sure death or serious bodily harm was a virtual certainty and the defendant appreciated that
New Law
Test:
Was the result D's aim or purpose ?
Yes = direct intention
No..
Was the result virtually certain?
AND
Did D appreciate that this result was virtually certain?
- Woollin (1998)
Woollin intention criticisms
- no absolute definition of virtually certain
- the change in wording from 'infer' to 'find' doesn't do anything
- jury are only entitled to find intention; Matthews (2003)
- no further guidance on the other factors that a jury will take into account
- test is under-inclusive
- test is over-inclusive; Steane (1947) , Nicklinson (2014)
Key Facts:
Definition = the mental element of an element of an offence; guilty mind
- Yip Chiu-Cheung (1995)
Ignorance to the law is no defence
- Esop (1836)
Types of Mens reae:
intention, recklessness, knowledge, belief, negligence, dishonesty