#5817 - Mens Rea - Irish Criminal Law

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)

Issue

• 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 fiancé 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)

Facts

• 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)

Facts

• 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...