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Mens Rea Notes

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This is an extract of our Mens Rea document, which we sell as part of our Irish Criminal Law Notes collection written by the top tier of Trinity College Dublin students.

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Mens Rea - Introduction 'The state of mind stigmatised as wrongful by the criminal law which, when compounded with the relevant prohibited conduct, constitutes a particular offence.' R v Majewski (HoL 1976) Facts

* The plaintiff was charged with assault.

* He claimed that he lacked the necessary mens rea as he was intoxicated Issue

* Mens Rea - Intoxication Judgment

* The common law rule is that voluntary intoxication is not a defence, except where a specific intention has to be proved.

* per Lord Elwyn-Jone LC

* The common law rule is not unjust - in bringing himself into the intoxicated condition the accused has the mens rea of recklessness.

* It would present practical difficulties for the administration of justice if the rule in general were to be relaxed.

* Lord Simon of Glaisdale

* To relax the rule as suggested would result in removing the protection of the law from people subject to unprovoked violence where the violence arose out of intoxication.

* Lord Salmon - There is a certain illogicality in that the law can negative specific intent but not general intent, however the law is a creature of common sense, not logic. Sweet v Parsley (HoL 1969) Facts

* The plaintiff was a landlord who let out her premises to tenants who smoked cannabis.

* She was convicted under a statute which made an offence to allow others to cannabis on one's property, despite her being unaware of the acts. Issue

* Mens Rea - Whether required Judgment

* Mens Rea was required of the offence - she must have been aware of the acts.

* Mens Rea is an essential element of every offence unless there is some reason that it is unnecessary - statutory offences should be construed as requiring a mental element unless it is clearly the intention of Parliament that they do not.

* per Lord Reid

* when implying the existence of a mental element, the court need not seek mens rea in the full sense, where this would put too heavy an onus on the prosecution

* the onus can be on the accused to prove absence of mens rea once certain facts are established

* the mental element can be made to consist only of gross negligence Re Article 26 and the Employment Equality Bill (SC 1997)


* Vicarious Liability - Mens Rea Judgment (Hamilton CJ)

* The provisions of the Bill make it clear that an employer can be vicariously liable for a crime without knowing of the act.

* This is contrary to the Constitutional guarantees of trial in due course of law and the guarantee of equality before the law in Article 40.1. Intention



s.4 Criminal Justice Act 1964, Intention for Murder 'intention to kill or cause serious injury' 4 (2) the accused shall be presumed to have intended the natural and probable consequences of his conduct but this presumption can be rebutted.

Direct Intention:

* The act is aimed at bringing about the result Oblique Intention:

* The act is not aimed at bringin about the result, but the result is a virtual certainty although not desired by the actor. Hyam v DPP (HoL 1974) Facts

* The accused had been in a relationship with the fiance of the victim's mother.

* She went to the house, poured petrol in the letterbox and set it alight resulting in the deaths of the mother's two girls. Issue

* Oblique Intention Judgment




A person who commits an act, knowing that it is probable that serious bodily harm would occur as a result, is guilty of murder if death results. per Lord Hailsham of Marylebone

* Intention can come about where the defendant knows that there is serious risk that death or serious bodily harm will ensue from his acts, and commits those acts deliberately and without lawful excuse per Viscount Dilhorne

* Performing an act with the knowledge that certain consequences are highly probable is enough to establish intention. R v Moloney (HoL 1985)


* The defendant discharged a shotgun in the presence of his stepfather killing him. Issue

* Mens Rea - Intention - Foresight Judgment

* Lord Hailsham of Marylebone LC






Hyam v DPP distinguished - in that case it was clear from the woman's taking steps to ensure her lover was out of the house and safe and her taking care to ensure the residents were asleep, that she had intended to expose the woman concerned to risk of death or serious bodily harm. Lord Fraser of Tullybelton (concurred with Lord Bridge) Lord Edmund-Davies (concurred with Lord Bridge) Lord Keith of Kinkel (concurred with Lord Bridge) Lord Bridge of Harwich

* The rule should be that, when directing the jury, the judge should tell them that they require to be satisfied that the victim was killed with intent and make the least elaboration as to what that entails, trusting them to come to the correct conclusion - though they should make a distinction between intent and desire (knowing what one is doing vs. wanting to do it)

* Lord Hailsham's definition, i.e. intending to expose someone to risk of death or serious bodily harm comes dangerously close to recklessness.

* Knowledge and foresight however, are the best evidence from which to draw inferences of intention - when directing the jury on foresight, they should be asked a) was the result the natural consequence of the act and b) did the accused foresee the consequence? - if the answer to both is yes, then the jury can rightly make a finding of intent R v Hancock & Shankland (HoL 1986)


* The defendants pushed a concrete block over a bridge onto a road where it hit a taxi and killed the driver.

* They pleaded that they had performed the act with an intent to block the road and frighten people, not kill Issue

* Intention - Foresight Judgment (Lord Scarman)

* Lord Bridge in Moloney was remiss in not mentioning the importance of probability in establishing intention - although only a factor among others, the higher the probability of death or serious bodily harm, the more likely it is that the act was committed with intent. R v Nedrick (CA 1986) Facts

* The accused set fire to a house resulting in the death of a child.

* He claimed that he had not desired to kill anyone by his act.

* The jury were directed that if the accused foresaw that it was highly probable that someone would die as a result of his act, they should find him guilty of murder and, having been so instructed they did so. Issue

* Intention - Foresight of a high probability of death/serious bodily harm Judgment

* per Moloney and Hancock&Shankland, foresight was only evidence from which the existence of intent could be inferred.

* The jury should not infer intent unless they find that the consequences of the defendant's conduct was a virtual certainty and he was aware of this.

R v Walker (CA 1989) Facts

* The accused dropped the victim from a third floor balcony, having threatened to kill him.

* The jury were instructed that they were entitled to infer intent where there was a very high degree of probability of the death arising out of the accused's conduct and the accused was aware of that probability. Issue

* Intention - Foresight of a high degree of probability Judgment (Lloyd LJ)

* It is only on rare occasions that the judge should elaborate on what constitutes intention.

* The distinction between 'virtual certainty' and 'high degree of probability' is not large enough to make the direction incorrect - provided intention is clearly distinguished from recklessness and the jury are aware of their entitlement to infer intention from probability, then 'very high degree of probability' is a safe direction. R v Woolin (HoL 1998) Facts

* The accused threw his baby onto a hard surface in a fit of temper.

* The jury were intitially directed that they must be satisfied that serious injury had been a virtual certainty and appreciated by the defendant before inferring intent, and subsequently if the accused had realised there existed a substantial risk of serious injury. Issue

* Intention - Foresight of Virtual Certainty Judgment

* Lord Nolan (concurred with Lord Steyn and Lord Hope)

* Lord Browne-Wilkinson (concurring)

* Lord Steyn

* R v Nedrick approved - a 'substantial risk' is materially different from a 'virtual certainty' and blurs the line between murder and manslaughter.

* Whether the jury should draw inferences depends on whether the defendant appreciated the probability of death or serious injury and how probable the death or serious injury was.

* where he did not appreciate that it was likely to flow from his act he can not have intended to bring it about

* if it was slight - he will likely be found innocent

* if it was a virtual certainty then it may be easy to find him guilty

* Lord Hoffman (concurred with Lord Steyn and Hope)

* Lord Hope of Craigshead (concurred with Lord Steyn) DPP v Douglas & Hayes (CCA 1984) Facts

* The defendants were convicted after a direction to the jury that informed that they could return a verdict of shooting with an intent to commit murder where they

found that the shots were fired with reckless disregard of the risk of killing, in the sense that it would be the likely, though not necessarily desired, outcome of the shooting. Issue

* Intention - Attempted Murder - Inference Judgment

* For the offence of shooting with intent to commit murder, an intent to kill is required and the fact that had the person died it would have been murder is irrelevant if the requisite intention is not present.

* Inference but not proof of intent can be drawn from the fact that a reasonable man would have foreseen death as a natural and probable consequence and the accused acted in reckless disregard of this.

* Intention connotes a state of affairs which the party intending decides, so far as in him lies, to bring about, and which in point of probability he has a reasonable prospect of being able to bring about by his own fruition. DPP v McBride (CCA 1996) Facts

* The accused was convicted of inflicting grievious bodily harm with intent after hitting the victim over the head with a pick-axe handle.

* The accused claimed that at the time of the incident his mind had 'just gone blank' Issue

* Intention - Inference Judgment

* The jury should have been informed that the presumption that an accused intended the natural and probable consequences of his crime was only a presumption which could be rebutted by evidence such as that his mind had gone blank. Law Reform Recommendations



That the mental element for murder should include reckless killing manifesting an extreme indifference to human life - it would be unsatisfactory if terrorists and arsonists, who foresee a substantial risk of death as the consequence of the their actions could not be found guilty of murder. Recklessness would be defined as consciously disregarding a substantial and unjustifiable risk that death will occur from the actor's actions. It must constitute a gross-deviation from the conduct of a law-abiding person in the accused's position in terms of its nature and degree. Bacik I., Review of the LRC Paper




The distinction between the mental element for manslaughter and murder would not be so important and fraught with difficulty were it not for the great difference in penalties that each attracts. The recommendation that reckless killing manifesting extreme indifference to the loss of human life be included takes the definition of murder very close to manslaughter - the culpability of reckless killing is much less than that required by murder and the stigma much less. The framing of the law to cover a specific instance (the terrorist example) would

lead to more general injustice. Petain, A., Criminal Intention and the Terrorist Example Introduction

* Woolin recognises two kinds of intention - a desire to bring about the necessary result and a state of mind where the accused foresees the consequences of her actions as a 'virtual certainty and yet continues with the course of action.

* Neither of these approaches deal with the 'terrorist example'

* For the sake of argument, it must be taken a) that the example terrorist should be convicted and b) that Woolin was correctly decided. The "terrorist example" in Woolin

* This consists of a terrorist planting a bomb and killing a member of the bomb disposal team where such a killing wasn't quite a virtual certainty.

* If the terrorist intends that the bomb explodes and kill whoever is present, and instead the authorities find it and attempt to deal with it then anyone killed was not within the defendants contemplation as being killed - however it is absurd to think that anyone who plants a bomb in this manner intends for a class of people more specific than anyone around when the bomb goes off to be killed.

* The terrorist example in Moloney is one where a warning is given so as to evacuate a building of people.

* In this case the death is not a virtual certainty, the terrorist doesn't want to kill or injure anybody and foresees that attempts will be made to defuse the bomb.

* It is said in order to tackle this terrorist example, one must forget about looking at subjective intention. A Cognitivist's Account of Our Moral Intuitions in Woolin

* In Woolin the verdict accords with our moral intuitions because we are convinced the accused did not intend the child's death as he killed it. Intention as Endorsement

* Oblique intention refers in fact to a rational kind of intention - that we have brought about an action through choice, not that we have foreseen it as a consequence etc

* Both types of intention point to a prior endorsement by the actor of the consequences. Endorsement and dissasociation

* There are two senses of not wanting something to happen - wanting it not to happen and being indifferent to it.

* If someone is indifferent to the outcome, they may still have been found as acting intentionally if they wanted to create the risk - like the terrorist in the example. Why intending to create a risk is different from recklessness?

* The attitude of the person is different - the creation of the risk is done without giving a damn, as opposed to undergoing a risk and hoping everything will be ok. Intention to create a risk and the failure test

* One can be said to have acted with intention if one would consider oneself to have failed if our actions hadn't resuled in subjecting anyone to risk. The wide concept of intention in context Recklessness The conscious running of an unjustifiable risk. DPP v Murray (SC 1977) Facts

* The defendants murdered a plain clothes Garda who was pursuing them after their

having robbed a bank. Issue

* Capital murder - Recklessness - whether test should be objective or subjective Judgment

* To establish recklessness, the court must be satisfied that the defendants adverted to the possibility that the victim was a Garda and murdered him in reckless disregard of that possibility. Re Hefferon Kearns (HC 1993) Facts

* The plaintiffs were sub-contractors who were working for the defendants and were owed money by the same.

* The defendant company were unable to discharge their debts and the plaintiffs instituted proceedings against them for reckless trading Issue

* Mens Rea - Recklessness Judgment (Lynch J)

* Recklessness in Criminal Law amounts to failing to give thought to the possibility of there being an obvious and serious risk in a situation where there is one, or having recognised such a risk and proceeding to take it.

* In tort it involves a high degree of carelessness, one which the reasonable man, appraised of all the facts and circumstances, would call reckless.

* However in this case, the statute includes the word 'knowingly' - thus the defendant must know of the risk and still proceed to take it.

* This is not so in this case - the defendant was acting reasonably in continuing to trade, as in all likelihood, the creditors would be worse off had he not done so. DPP v McGrath (CCA 2004) Facts

* The accused had encouraged another to punch a man while he was sitting on a wall, which resulted in him falling and hitting his head, resulting in death. Issue

* Mens Rea - Manslaughter - Recklessness Judgment (Denham J)




s.13 of the relevant Act provides that "A person shall be guilty of an offence who intentionally or recklessly engages in conduct which creates a substantial risk of death or serious harm to another. DPP v Murray followed - recklessness involves acting in conscious disregard of a substantial and unjustifiable risk that the material element of the crime exists or will result from his conduct. The risk must be of such nature or degree that, considering the nature of the actor's conduct and the circumstances known to him, its disregard involves culpability of high degree - simple ignorance of a fact is not enough to exclude recklessness, the accused must actually be mistaken as to the risk. On the evidence, it was open to the jury in this case to find that the accused acted

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