This is an extract of our Criminal Liability The Mens Rea Of Crime Intention, Recklessness document, which we sell as part of our Criminal Liability Notes collection written by the top tier of University College Dublin students.
The following is a more accessble plain text extract of the PDF sample above, taken from our Criminal Liability Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:
Not just mental state
Goes to the fault element
Determination the degree of fault which justifies the guilt
Or why we should not impose mens rea - where do we draw the line
Determining fault - is it reasonable to impose liability?
Distinguishing civil from criminal
Extent of fault/ gravity of crime (e.g between murder & mansl.)
Unless legislation expressly provides otherwise
5. where an offence is made up of a number of elements, mens rea will be required as regards each one.
➢ We must show Mens rea in each component in an offence, but each component does not require the same level of Mens rea.
Sweet v ParsleyIf legislation is silent on mens rea, can be presumed that intention is needed in all elements of the offence.
DPP v Murray
The offence of capital murder - identified by having two components both required to have mens rea
1. Must be an intention to kill or cause serious injury to the victim
2. Recklessness as to the identity of the victim. - a degree of fault that is slightly different -
regards the nature of the victim
Aware of the victim being a garda in the course of their duty. Intention bar is too high - e.g intention to kill a Garda in respect of his title. Recklessness is subject awareness, a little lower than intention.
HANDLING STOLEN PROPERTY
A person is guilty of handling stolen property if a) Knowing that the property was stolen
Or b) Recklessness to the fact it was stolen
c) Dishonestly, 6. Receives or arranges to receive it
7. Undertakes or assists in its retention, removal, disposal, or realisation by or for benefit of another person.
Guilty if they:
a) Intent to commit an arrestable offence b) Commits or attempts to commit
Any such offence, having entered any building or part of a building as a trespasser…
FORMS OF MENS REA
1. Intention - aim of outcome
2. Recklessness - subjective - might not have intended the outcome, but you knew it might come about as a result of your actions
3. Criminal negligence - doesn't apply across the board to criminal offences - largely restricted to manslaughter - v.substantial risk to extreme harm
4. Negligence - can be defended or rebutted by exercise of reasonable care.
5. Strict or absolute liability
➢ MENS REA IS NOT JUST INTENTION - IT IS THE GUILTY MIND.
INTENTIONA PERSON INTENDS A RESULT IF IT IS HIS CONSCIOUS AIM, OBJECT OR PURPOSE, OR HERE
HE HAS SOUGHT TO BRING ABOUT THE RESULT
The majority of cases won't require a direction to the jury of Mens Rea but there are some borderline cases that will
You might see the outcome but you don't intend it - indirect or oblique outcome
EG - you might hijack a plane and kill loads of people. You did not intend for them to die, even though it was highly likely, you actually would've preferred if all of them were rescued.
You don't want it to happen but you proceed regardless
Somewhere in between recklessness and intention
Evolution of intention
Hyam v DPP
Decision on murder or manslaughter.
Foreseeability of result due to actus is enough
Foresight creates intention to expose, and: •
If the A exposes their victim to the risk of the foreseeable consequences, then they have intention.
It is irrelevant to consider whether A intended the harm to occur or not - exposure is really the key.
To infer intention.
R v MoloneyForeseeability that the result is a natural consequence flowing from the actus, without desirability
Adds natural consequence
Foresight of a natural consequence is enough to infer intention
Is enough for a jury to infer intention, from the result.
R v Hancock and ShanklandProbability - the more probable the outcome, the more likely or stronger the intention will be
R v NedrickMust be a 'virtually certain' consequence of the actus
Evolved from probable exposure to a consequence, to certainty of the consequence.
R v WoolinApproves Nedrick
R v Matthews
D charged w throwing a student off a bridge in a river knowing they could not swim. Judge directed jury: if they knew drowning was a virtual certainty, they must have intended to kill them
Jury should have been told that they were ENTITLED to find that this act could amount to an intention to kill, not required to.Rule of evidence not a rule of law
If death is a virtual certainty, the jury is entitled to infer that this is an intention.
Intention is not the same as desire
And this should be told to the jury.
Exemplifies the Nedrick test
DPP v Murray 1977Oblique intention is not enough to infer intention -Oblique intention in England is foresight of the natural consequence, but they say here that foresight is not enough. Its more than that to be accused beyond reasonable doubt
Intention to expose to risk is not intention to cause serious injury and therefore is not enough to infer intent to murder, plain and simple.
'Must have been not only that he foresaw but ALSO willed the possible consequences of his conduct'
DPP v Douglas and Hayes 1985
"It is not necessary to constitute the intent to kill that that should be the desired outcome of what was done. It is sufficient that it is a likely outcome and that the act is done with reckless disregard of that outcome."It is sufficient that it is a likely outcome and that the act is done with reckless disregard of that outcome.Reckless disregard of a likely outcome Is not enough to infer intent to kill,
This is only one of the facts to be considered in 'deciding whether the correct inference is that the accused had actual intent to kill'
CA:Clifford v DPP 2008
An intent to commit the external element of an offence occurs:where an accused person goes about the conduct in question with the purpose of bringing about the wrong.
'So, the issue is: did the rowdy person intend to provoke a breach of the peace? It is not necessary to prove that he succeeded. If he acted in order to provoke the gardaí into an unseemly response of manhandling him gratuitously, that is an example of direct intention'Success of the injury or harm is irrelevantProvocation into an unseemly response = 'direct intention'
The inference to be drawn from intention of conduct may have been rebutted here as it was a presumption, based on the accused's provocation. There was no evidence to suggest that the accused did anything BUT provoke the Gardai, as that was the natural result of his behaviour.'A person may go about a particular intentional course of conduct but not necessarily intend the consequence that is brought about'The extent of likelihood is something you take into account as an evidential matter, when assessing intention. Not a decisive element.
A person may intend to blow up a plane in flight and so kill the passengers. That is direct intention.
A person may claim to intend only to blow up a suitcase in a plane in flight but hope, that through some miracle, all the passengers in the plane will survive. It might usefully be noted, on the relevant case law, that:
'the closer the impugned conduct comes to inevitably causing the consequence charged…the more readily a court may feel able to infer that intention'Whether or not it was the aim to achieve the particular outcome that actually happened.Motive is relevant, and it may assist in rebuttal.The difficulty for a particular accused to achieve the wrong, does not mean that he did not have intent to bring it about.If he is consciously doing whatever he can to bring about the criminal wrong in question,
that means it is his purpose. That constitutes an intent to commit the offence.It is always a matter of looking at the building blocks of the case that the prosecution present before the court; of seeing which of these have been proven beyond reasonable doubt; and of construing that evidence in the context of the ultimate question before the court as to whether the prosecution have proved the external and mental elements of any particular offence to the requisite standard of proof.
➢ This was appealed to the SC and they did not disapprove, but it's not clear if this only applies the principles to cases where the individual aim and a certain outcome, or if it allows intention to be inferred from the fact that the certain outcome was highly likely, even though it was not desired.
PRESUMPTION OF INTENTION
Declaration by accuse (unlikely)
Evidence of state of mind
Can be inferred
Criminal Justice Act 1964A person is presumed to intend the natural and probable consequences of his conduct; but this presumption may be rebutted
So, if a person fires a gun and someone dies, that is obviously a probable consequence, but it can be rebutted on the facts of the case.
R v Smith - ENGLISH
A driving car full of stolen goods. He was confronted by a policeman and drove off with the policeman clinging to the car. He swerved the car completely which threw the policeman under an oncoming car, killing him. He was charged with murder. He argued that he was scared and only wanted to get rid of him - but did not intend to injure or kill.
Irrespective of whether or not it was the accused aim to bring about the death, the intention was to
INJURE. The HOL held
1. Was the unlawful, voluntary act a natural and probable result?
2. Test for this is what the ordinary responsible man would have done.
Established a PRESUMPTION.
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