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Mens Rea

Teaching Notes for G153 OCR Criminal Law

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Mens Rea

  1. 1. Elements of Criminal Law [3] Mens Rea MAH G153 2013-14 “it’s all in the mind”
  2. 2. Starter: Do these look familiar? (They should!) All of you should be able to tell me the name or the facts of the case. Most of you should be able to tell me the importance or the decision of the case Some of you should be able to link it to another case.
  3. 3. General Rules: D should ideally make a voluntary choice to commit the offence, and it is this which we call the mens rea or ‘guilty mind’ Scenario Jane is in a kitchen and picks up a knife Patrick picks up a phone in the classroom James opens a window. How do we turn these innocent actions into guilty ones? …and some even need more than one element! “Dishonestly appropriate property belonging to another with the intention to permanently deprive the other of it” s.1 Theft Act 1968 Generally speaking, the more serious the crime, the ‘higher’ the level of mens rea Murder Manslaughter
  4. 4. Where does motive come into it? 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?
  5. 5. Types of Mens Rea 1: Intention Specific Direct aka express Basic Oblique aka indirect Wait until we look at intoxication for this section! Warning: Intention is not actually defined anywhere in the law, so we have to look at how the courts have interpreted it. What other words could you use to describe some one’s intention?
  6. 6. “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 Means: You both foresee and intend the consequence which occurs.
  7. 7. Intention Type Two: Oblique Intent Scenario: David puts a bomb on one of his planes, intending for it to blow up in the air so he can claim the insurance. It explodes, killing the crew as well. Does D have a direct intent to kill?  Should we hold D responsible for the deaths? Means: D intends one consequence (e.g. arson) but another occurs (e.g. murder). He is held liable if he could foresee* it. Why is it so important? Well if we can prove oblique intent, then we can convict D of murder or s.18 GBH. However, if it cannot be proven, then the most they can be convicted of is manslaughter or s.20 GBH… so it can make a big difference to D! *So, if foreseeability is key... how far does D need to foresee something to be liable for it.
  8. 8. 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. All of you should be able to decide which scenario fits which term Most of you should be able to label at what point D will be considered to have a direct intent Student Task: Look at the grid below. In each of the following circumstances, V is shot and killed. Some of you should be able to decide at what point you think D should be liable for murder and why.
  9. 9. Foresight of Consequences Why was there a problem? DPP v Smith 1961 ‘If you are satisfied that ... he must as a reasonable man have contemplated that grievous bodily harm was likely to result to that officer ... and that such harm did happen and the officer died in consequence, then the accused is guilty of capital murder. “ This created an objective test…
  10. 10. So, the Government has to step in and pass s.8 Criminal Law Act 1967 How do we judge intent? 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.
  11. 11. So if ‘natural and probable’ isn’t good enough, what is? Development of the test (1) Hyam v DPP 1975 Decision: D must have foreseen death or GBH as a highly probable result. What impact does this have on D’s liability?
  12. 12. 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 a) Did D foresee that consequence as being a natural result of his act? R v Moloney 1985 So if ‘natural and probable’ isn’t good enough, what is? Development of the test (2)
  13. 13. 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. So if ‘natural and probable’ isn’t good enough, what is? Development of the test (3)
  14. 14. R v Nedrick 1986 So if ‘natural and probable’ isn’t good enough, what is? Development of the test (4) The CA decided to use this case to clarify the rules and set an easy to understand test for the jury:  How probable was the consequence which resulted from D’s voluntary act? and  Did D foresee the consequence? Those consequences should be foreseen as a virtual certainty. If all this can be proven, then the jury may infer intent from the circumstances.
  15. 15. R v Woollin 1998 So if ‘natural and probable’ isn’t good enough, what is? Development of the test (5) Stretch yourself! “The test which is confirmed by the House of Lords in Woollin would have been enough to convict him of murder if the judge had got the direction right”. Can you explain why this statement is right in the law?
  16. 16. Starter: Can you apply what you have learnt last lesson? What type of intent do I have in each of these scenarios?  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. I kick a ball at my opposition, and it misses breaking a window. I go into Jo’s bag and take out her purse.
  17. 17. So if ‘natural and probable’ isn’t good enough, what is? Development of the test (6) “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  What issues might there be with this decision?  What does it seem to say about foresight of consequences
  18. 18. Can you apply the law? I am sick of Bob, my pupil. He never does homework, and is constantly on his mobile. I decide I cannot put up with this any longer and make a plan blow up E52, knowing that he’ll be in there during lesson time, but I will be out on a course. The classroom blows up, killing the rest of the class as well.
  19. 19. Consolidation: Have you understood the key developments in oblique intent? Working with the person next to you, see if you can match up the cards… All of you should be able to match the case to the description Most of you should be able to work out the ratio Some of you should be able to divide them into murder and manslaughter cases This one isn’t right!
  20. 20. Summarise your learning: Using the cards and your understanding complete the revision grid on p.12
  21. 21. All of you need to answer this: What degree of foresight is enough for oblique intent in the law? Most of you need to identify a supporting case, which you explain. Some of you need to answer the following: Is foresight of consequences intention, or only evidence of intention? Plenary: To Sum up…
  22. 22. Homework: Using what you have learnt so far, explain whether the following defendants would be liable for the harm or not and why 1. Louisa stops to let Jane cross the road. Sam, who is checking his mobile phone, fail to see that she has stopped and runs into the back of Louisa’s car causing it to hit Jane and break her ankle Louisa and Sam are both charged 2. Sebastian is a newly trained doctor who treats Emmaline following a stabbing. He gives Emmaline 30mg of penicillin, instead of 300mg. Emmaline cannot fight off the infection and dies. Sebastian is charged 3. Katie is really unhappy with her Law teacher. She decides to get rid of him, so that he will be replaced. She rigs up a bomb in the classroom and times it to go off when he is in the room. The bomb goes off, killing the teacher and three students in the room with him Katie is charged with the murder of all three E Grade: decide whether or not they would be liable, using the facts of the scenario C Grade: support your decision by reference to the relevant area of the law A Grade: Use a relevant case or statute to support your conclusions.
  23. 23. Got it? Murder or Manslaughter? Susie argues with Simon and smashes a vase over his head, wanting to shut him up. Peter fires his arrows at a tree out of his window. He hit Steven, who is walking down the lane. Ashley stabs Sophia six times with a fork. Jim puts a bomb in his car, wanting to get rid of it. His wife drives it, and it explodes, killing her. Stevie drops a concrete slab off a bridge, intending to stop a car. The slab hits the car, killing the driver All of you should be able to decide whether D is liable for murder and manslaughter Most of you should be able to explain why Some of you will be able to decide, for those liable for murder, who has a direct intent, and who an oblique intent. Dari and Tim are arguing. Dari punches Tim to get him to shut up and he falls over, hitting his head and dying Defendant Murder or Manslaughter? Why? Intent? Susie Jim Stevie Peter Ashley Dari
  24. 24. Marking A2 Essays What kind of essay might you get on this subject? Turn to pp. 13-14 in your hand out. Here, you have a sample essay on the topic of intention, which we have just looked at. You’re going to mark it!
  25. 25. Marking A2 Essays Step One: The Question “The meaning of intention in the criminal law has now been clearly settled by decisions of the courts and there is no longer any need for Parliament to legislate upon the matter” Discuss whether you agree with this statement.  What will you expect a student to include? This is known as the indicative content..  What key words will you expect to see framing their argument and evaluating their cases/statutes? Use this and the general mark scheme to mark the sample essay, and complete the feedback box
  26. 26. Marking A2 Essays Step One: The Question “The meaning of intention in the criminal law has now been clearly settled by decisions of the courts and there is no longer any need for Parliament to legislate upon the matter” Discuss whether you agree with this statement.  What will you expect a student to include? This is known as the indicative content..  What key words will you expect to see framing their argument and evaluating their cases/statutes? Use this and the general mark scheme to mark the sample essay, and complete the feedback box
  27. 27. The General Mark Scheme AO1 Marks AO2 Marks 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 – 8 cases 21-25 Ability 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 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. 5 cases 16-20 Ability 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 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. 3 cases 11-15 Ability 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 and reach a conclusion. 9-12 LEVEL 2 Limited 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. 1 case 6-10 Ability 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 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. 1-5 Ability 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
  28. 28. Starter: The scary triangles are back! Lollipop Level All brains, no help Sticker happy? Use the notes, or a text book Too easy? Which case is missing and why?
  29. 29. Mens Rea Type Two: Recklessness The conscious taking of an unjustifiable risk Meaning: R v Cunningham 1957 This is currently measured subjectively but this was not always the case.
  30. 30. So what went wrong? The House of Lords expanded their own definition! 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 does this seem to imply about the test for recklessness? It is this one which causes the difficulties.
  31. 31. Point Explanation However… Caldwell has changed the test for recklessness completely It is now too broad 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. Critical Thinking: What issues are raised by the decision of the court in Caldwell? All of you should be able to explain why the points are a problem Most of you should be able to support your reasoning with reference to a case or example Some of you should be able to refer to a range of counter-arguments to develop your discussion.
  32. 32. Elliot v C 1983 How bad could the Caldwell decision get? Why do you think that some people argue the outcome of this case is wrong morally and legally? Seymour 1983 Reasonable manslaughter?
  33. 33. How do we resolve this? The House of Lords used the….. To overrule Caldwell with respect to criminal damage and recklessness. So the test is: Did D realise there was a risk and go ahead anyway? G & R 2003
  34. 34. Plenary: On the back of your handouts, answer the following question: Explain the difference between direct intent, oblique intent and recklessness in English criminal law.  Clear definitions of the terms  at least one case used to support  Able to point out how the three terms differ  at least three cases used to support  Discuss one issue the courts have had with the terms  at least five cases used to support E C A
  35. 35. Starter Do you know your cases? There are 13 cases or parts of cases in here… Can you find them and sort them out into the different mens rea?
  36. 36. Starter Do you know your cases? There are 13 cases or parts of cases in here… Can you find them and sort them out into the different mens rea?
  37. 37. A final couple of things: Transferred Malice D intends to hit V…. …but misses and hits X Transferred malice is the doctrine which explains why D is liable for the harm to X! AO2: Why are we justified convicting D of the harm? Means: D’s Malice is transferred from the intended victim to the actual victim.
  38. 38. Classic Example: R v Latimer Modern Example: R v Mitchell Examplesofthedoctrineat work…
  39. 39. Limitations Limitation One: Must be the same category of offences Pemblition “The doctrine of transferred malice was inapplicable where the defendant's intention had not been to cause the type of harm that actually occurred.” Limitation Two: It can only transfer a limited number of times AG’s Ref No 3 of 1994 (1997) “The defendant intended to commit and did commit an immediate crime of violence to the mother. He committed no relevant violence to the foetus, which was not a person, either at the time or in the future, and intended no harm to the foetus or to the human person which it would become.” Whose reasoning do you prefer? The CA or the HL? Why? Why do we need to limit when the doctrine applies?
  40. 40. What are the words? What’s the link? Intent Reckless Negligence Mens Rea!
  41. 41. The final step: Coincidence Means: The AR & the MR must both be present at the same time for D to be liable. General Rule Illustration: Miller 1. When did D develop the MR of arson under s. 1(1) and (3) of Criminal Damage Act 1971? 2. Why do you think the courts developed this rule? But: The courts seem to look for contemporaneity when it seems that none really exists based on the facts!
  42. 42. D was liable as the AR continued on… and on… so even though the that the MR was complete, it continued too! Way Round the Rule [1] Series of acts D punched his wife on the chin, knocking her unconscious He dragged her away to hide her She hit her head on the pavement & died as a result Is he liable for her manslaughter? Le Brun This is where D does one in a series of acts, which keep going until the harm is complete, even if the MR ‘ends’ early! Church Thabo Meli D was liable as he had committed one of a series of acts leading to D’s death, and had the MR when he committed that act
  43. 43. Way Round the Rule [1] Continuing Act In continuing act, if D develops MR at any point before the AR is complete, then D will be liable. An example: Kaitamaki D had sex with V during which he realised that she did not consent & then continued.  Why was D still held liable?  Is this approach justifable? 1. What happened? 2. What offence was he sharged with? 3. Why was it indirect? 4. What was the ‘criucial question’ in this case? 5. Did D commit an Act or an Omission? 6. Why did D argue he should be found NG? 7. Do you agree with the outcome of the case? Why/why not? Fagan v MPC 1969
  44. 44. Plenary: Complete the Post-it! A B C D E

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