PRINCIPLES OF CRIMINAL LIABILITY MENS REA – THE GUILTY MIND

Mens rea… O Mens rea is often referred to as the guilty mind of the defendant O Every serious crime will need the coincidence of the actus reus and the mens rea O Mens rea is usually identified in the description of the offence in the use of the words: O Intentionally O Recklessly O Maliciously O Negligently

O Again, considering s1(1) Criminal Damage Act 1971: “A person who without lawful excuse destroys or damages property belonging to another intending to destroy or damage such property or being reckless as to whether such property would be destroyed or damaged shall be guilty of an offence.” O Mens rea for this offence would be ‘intending’ or ‘being reckless’

Intention… O There are 2 different types of intention: 1. Direct intention 2. Indirect/Oblique intention O Direct intention can be interpreted to mean that D wants something to happen and deliberately sets out to make sure that it does O E.g. D buys a gun, puts bullets in the gun, walks up to V and shoots him at point blank range in the head – it would be difficult to argue that D had not intended the outcome of his consequences

O Oblique intention is less straightforward – it deals with a situation where D may not intend a consequence of his act/omission but foresees it as a virtual certainty that it will happen O E.g. D decides to kill his wife by blowing up the plane that she is travelling on. His only intention is to kill his wife. He does not intend the deaths of the other passengers but if it is a virtual certainty that the other passengers on the plane will also die and D himself appreciates this fact then the jury can find the necessary evidence of intention for their murders as well.

O Progression of the law of intention: R v Nedrick [1986] – D poured paraffin through the letterbox of a house and set fire to it; a child died in the ensuing fire but D claimed that he had not intended anyone to die. O Court of Appeal held that a jury might infer intention if D foresaw death or serious injury as a virtual certainty as a result of D’s actions O Jury is not obliged to find intention

O Whether D possesses the intention to kill, through foresight of virtually certain consequences, is a matter of fact for the jury to decide. O The may rather than must find evidence of intention and decide that this satisfies the mens rea. O Failure by the judge to fully explain this point in his directions to the jury can lead to a successful appeal against conviction by D as in the case R v Scalley [1995]

O R v Woollin [1998]: O Jury was directed as follows: O Was death a virtual certainty of the defendant’s actions? O Did the defendant appreciate that this was the case? O If answer to both is ‘yes’ then the jury, looking at the evidence, are entitled to find the necessary intention and return a guilty verdict. However, they are not obliged to do so.

Recklessness… O Recklessness is concerned with a situation where D has considered the risk of his actions but has carried out his actions regardless of the consequence O Previously 2 tests for recklessness: 1. Cunningham recklessness – subjective 2. Caldwell recklessness – objective O Since the case of R v G and R [2003] Caldwell recklessness has been overruled and is no longer considered.

Negligence O Very rarely a required form of mens rea in criminal law O Is usually a civil standard O When you are under a duty to do something with a reasonable level of care, or take reasonable care not to do something/allow something to happen, and you fail to meet this standard.

O Common examples: Failing to drive reasonably carefully and colliding with someone else Failing to ensure a safe system of work for an employee Medical negligence: failing to carry out an operation with a reasonable degree of care

O Practically the only time that negligence arises in criminal law is in the offence of Gross Negligence Manslaughter O This means that death has been caused by someone’s negligence rather than by an act requiring intention or recklessness

Coincidence of AR & MR O Idea is that for the accused to be guilty of an offence, the AR and MR need to occur at the same time O This can be satisfied as long as there is some overlap O Fagan v Metropolitan Police Commissioner [1969] – D accidentally drove onto policeman’s foot. When policeman asked him to move he refused. O D was convicted of common assault and appealed on the basis that he had no MR at the time he drove onto the policeman’s foot therefore he should not be guilty. O Court held that the car being on the foot was a continuing act and as soon as he developed the MR (when he refused to move) he became guilty of the offence

Strict Liability Offences O These are offences that only require that the actus reus was committed, it is not necessary to prove the mens rea O Often enacted to ensure society runs smoothly – approx 7,500 such offences O Many driving offences are strict liability e.g. driver is guilty even if he does not know he is breaking the speed limit or intended to do so

Grouping of SL offences O Generally can be grouped as follows: 1. Regulatory offences 2. Issues of social concern 3. Where wording of an Act of Parliament suggests it is a matter of strict liability 4. Where there is a very small penalty

Regulatory offences O Many offences under Acts concerned with control of matters such as: O Sale of food O Provision of medicines O Health and safety at work O Tend to cover general issues of social welfare and mean that state of mind of D is immaterial O Forces employers, practitioners and generally anyone with contact with the public to ensure things are done properly before something goes wrong!

O Meah v Roberts (1977) – 2 children were served with what was thought to be lemonade – turned out to be caustic soda being stored in lemonade bottle O Meah found guilty of selling food unfit for human consumption contrary to the Food and Drug Act 1955 despite the fact that it was not him who put the caustic soda in the bottle and he did not know that it was in there O It was the fact that he had done it was sufficient, mens rea was irrelevant

O Cundy v LeCocq [1884] – D charged with unlawfully selling alcohol to an intoxicated person contrary to the Licensing Act 1872 O D claimed he did not know buyer was intoxicated and therefore he was not guilty O Court held that fact that buyer was intoxicated and he sold alcohol to him was sufficient; what he thought or believed was irrelevant

Issues of social concern O Gambling is seen as an issue of social concern O Harrow London Borough Council v Shah [1999] O Shopkeeper was found guilty of selling lottery ticket to girl under the age of 16 O Court found this to be offence of strict liability on the basis that the legislation dealt with “…a matter of social concern” O Therefore, whether shopkeeper knew girl was under 16 was irrelevant

Wording of the Act of Parliament O An Act will very often require a particular mens rea which will be evidenced through words such as: O Knowingly O Intentionally O Recklessly O Occasionally the Act makes no reference to mens rea and it is for the court to determine whether it is required and what was the intention of Parliament

O The presumption is that mens rea will be required for a criminal offence unless the words of the Act suggest that strict liability is intended O B (a minor) v DPP [2000] – 15 yr old boy sat next to a 13 year old girl on a bus and asked her to perform oral sex O Charged with inciting a girl under the age of 14 to commit gross indecency – no requirement for mens rea within the Indecency with Children Act 1960 O D’s defence was that he honestly believed the girl was over 14

O Court held that he was not guilty as it was highly unlikely that Parliament intended this to be a matter of strict liability due to the very serious nature of the offence, the potential penalty and the social stigma attached O Therefore as the boy believed the girl was older than 14, he was not guilty of the offence

Smallness of the penalty O Strict liability is often imposed for crimes that carry very small penalties O Consequently, the heavier the penalty, the less likely it is to be an offence of strict liability O E.g. speeding – results in penalty points and a fine, regardless of mens rea of D