Mr 2011 12

Elements of Criminal Law

Mens Rea

Miss Hart G153Criminal Law 2011

Are they as guilty as they look?

Crime:

Innocent Action:

How much guilt does the mind need?...It depends on the definition!

Element One:

Element Two:

Sometimes there is more than one option for the mens rea. Can you think of a crime which has more than one element?

AO2 development:

Why do you think that there might be more than one option?

Motive?

R v Steane 1947

“A man is taken to intend the natural consequences of his acts…but the motive of

a man’s act and his intention in doing the act

are, in law, different things”

Why might motive still be relevant in a criminal court?

Types of Mens Rea:

Intention

Specific Direct aka express

Basic Obliqueaka indirect

Wait until we look at

intoxication for this section!

How do we prove intention?Foresight of Consequences

Impossible

Unlikely Possible? Probable Highly Probable

Virtually Certain

Certain

1. A man fires a shotgun out of the window of a remote farmhouse

2. A man fires a shotgun which he is holding directly at the head of his victim

3. A man fires a shotgun out of the window of a shop in the high street

4. A man fires a shotgun in the direction of a bus queue twenty feet away

5. A man fires a shotgun into the air on the moon (no other astronauts around)

6. A man fires a shotgun at the head of someone stood in his doorway.

7. A man fires a shotgun at a bus queue six foot away.

For each of the following scenarios, decide how likely it is and put the number in the box!

Now decide at what point you think they should be liable for the murder of V

“a decision to bring about, in so far as it lies within the accused power( the prohibited consequence), no matter

whether the accused desired that consequence of his act or not”

Intention Type One:

Direct Intent

R v Mohan 1975

You both foresee and intend the consequence which occurs.

Which of the following has a direct intent?

I point a gun and pull the trigger I set fire, intending to scare, and someone dies I say “I’m going to kill you” and then put my hands round your throat. I put my hands up and walk towards you.

Intention Type Two:

Oblique Intent

Means?D intends one consequence (e.g. arson) but another occurs (e.g. murder). Clearly we can’t say that he has a direct intent to kill...

But does he still legally intend the consequences?Is he still legally liable for them?

What if I am sick of a pupil and decide to blow up E52, knowing that the student will be in there during lesson time. The classroom blows up, killing the

rest of the class as well

Foresight of Consequences

Why was there a problem?

DPP v Smith 1961 1.Why was this outcome unfair to Mr Smith?

2.Why could the House of Lords not simply just change their minds and change the law?

The Response?

A court or jury, in determining whether a person has committed an offence:

a) shall not be bound in law to infer that he intended or foresaw a result of his actions by reasons only of its being a natural and probable consequence of those actions: but

b) shall decide whether he did intend or foresee that result by reference to all the evidence, drawing such inferences as appear proper in the circumstances.

Development of the test on Foresight of Consequences [1]

Hyam v DPP 1975Decision:

Critical Comment:

Two important sections to this decision:

1. Foresight of consequences are only evidence of intention.

2. Bridge LJ set down a two stage test (to decide whether consequences were foreseen) to be put before juries:

a) Was death or really serious injury a natural consequence of the defendant’s act? And

b) Did D foresee that consequence as being a natural result of his act?


R v Moloney 1985 AO2 Assessment

1. What has Lord Bridge forgotten?

2. Should oblique intent have even been an issue here?


Hancock & Shankland 1986

“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 consequence was also intended.

1. What did the court do to the decision in Moloney?

2. What was the decision here?


R v Nedrick 1986 1. What do you notice about the two branches of this test?

2. How might this have changed the outcome for D in Hyam v DPP?

3. Why might the word ‘infer’ be important here?


R v Woollin 1998

1. What happened?

2. Do Woollin’s actions amount to the AR of murder?

3. What was the decision of the House of Lords?

4. How did the House of Lords modify the Court of Appeal in Nedrick?

5. What is the new ‘model direction’?

6. Explain the fact that Woollin may have been convicted under the new law.

“the law has not yet reached a definition of intent in murder in

terms of appreciation of a virtual certainty…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.”


The final word?

R v Matthews & Alleyne

1. What degree of foresight is enough?

2. Is foresight of consequences intention, or only evidence of intention?

To Sum up…

….So how far must you foresee something for it to be evidence of intention?

Impossible

Unlikely Possible?

Probable Highly Probable

Virtually Certain

Certain

Remember the table? Go back and write in the crime, which D would be liable for under each

heading following the Woollin decision, and the mens rea!

Starter:

Match the terms to their definition?

Direct Intent

Omission

Mens Rea

Consequence Crime

State of Affairs Crime

1. A failure to do something, which doesn’t normally bring criminal liability

2. A true desire to bring about the consequence

3. A crime where the outcome is the action prohibited

4. Sometimes known as the fault element which often turns an innocent act into a guilty one.

5. A crime where D is liable in spite of having no voluntary actus reus or mens rea.

A

B

C

E

D

Applying the lawLook at the following scenario:

is Bob guilty of murder?

Bob is a member of Chocolate Only, a group which believes that people

should only be eating chocolate. To get publicity for his cause, he plants a

bomb in Buckingham Palace. He phones the police to let them know

that it will explode in 15 minutes. The operator, Susie, mishears and thinks

he says 50 minutes.

They evacuate the Palace, and after 15 minutes, Jeremy the bomb

disposal expert goes in. The bomb explodes, killing Jeremy.

Do you understand intention?Without your handouts, match them

up, and put them in order!

*These don’t match!*

Task:

Now use these are your own understanding to complete the table on page 14

How are the essays marked?AO1 A2CRIM AO2 A2 CRIM

LEVEL 5 Wide-ranging, accurate, detailed knowledge with a clear and confident understanding of the relevant concepts and principles. Where appropriate, candidates will be able to elaborate with wide citation of relevant statutes and case law

21-25Ability to identify correctly the relevant and important points of criticism, showing good understanding of current debate and proposals for reform, or to identify all of the relevant points of law in issue. A high level of ability to develop arguments or apply points of law accurately and pertinently to a given factual situation, and reach a cogent, logical and well-informed conclusion.

17-20

LEVEL 4 Good, well-developed knowledge with a clear understanding of the relevant concepts and principles. Where appropriate, candidates will be able to elaborate by good citation to relevant statutes and case-law.

16-20Ability to identify and analyse issues central to the question, showing some understanding of current debate and proposals for reform, or to identify most of the relevant points of law in issue. Ability to develop clear arguments or apply points of law clearly to a given factual situation, and reach a sensible and informed conclusion.

13-16

LEVEL 3 Adequate knowledge showing reasonable understanding of the relevant concepts and principles. Where appropriate, candidates will be able to elaborate with some citation of relevant statutes and case-law.

11-15Ability to analyse most of the more obvious points central to the question or to identify the main points of law in issue. Ability to develop arguments or apply points of law mechanically to a given factual situation, and reach a conclusion.

9-12

LEVEL 2Limited knowledge showing general understanding of the relevant concepts and principles. There will be some elaboration of the principles, and where appropriate with limited reference to relevant statutes and case-law.

6-10Ability to explain some of the more obvious points central to the question or to identify some of the points of law in issue. A limited ability to produce arguments based on their material or to apply points of law to a given factual situation but without a clear focus or conclusion.

5-8

LEVEL 1 Very limited knowledge of the basic concepts and principles. There will be limited points of detail, but accurate citation of relevant statutes and case-law will not be expected.

1-5Ability to explain at least one of the simpler points central to the question or to identify at least one of the points of law in issue. The approach may be uncritical and/or unselective.

1-4

Mark this one!

Mark the AO1 and AO2 in the essay (use the margin to help you)

Then look at the grade descriptors. Which band do they sound like?

Finally:

1. Pick one section you think is particularly strong and explain why

2. Highlight one area you think could be improved and say why.

Mens Rea Type Two:

Recklessness

The conscious taking of an unjustifiable riskMeaning:

R v Cunningham 1957

So, that all seems straightforward…

… so guess what happens now!

R v Caldwell 1981

The court decided that liability through recklessness could occur in two situations:

1. D realised the risk and went ahead; or

2. D had not thought about the possibility of any risk but went ahead

What are the implications of this decision?

Point Explanation

This has changed the test for recklessness completely.

It is too general and doesn’t take account of D’s characteristics

It has been expanded to other offences such as manslaughter

The reasonable man is always reasonable.

It makes the law unclear for both the courts and the defendants.

It reduces the amount of risk D needs to foresee.

In your pairs, look at the statement you have been given and explain your point of

criticism (the why)

How bad could the Caldwell decision get?

… the solution?

Elliot v C 1983 R v G&R 2003

Did D realise that there was a risk and go ahead

anyway?

Finally…

Find the cases! There are 13 cases in here… can you sort ‘em out?

Documents

Mr 2011 12