Mens rea

Question 1

Fault element defined where?

Answer 1

Draft Criminal Code Bill, cl 6

Question 2

Hyam v DPP

Answer 2

Held: direct intention also means “the means as well as the end”.

where D set fire to her rival’s home to frighten her away

Question 3

Malice aforethought

Answer 3

there were three kinds of malice aforethought;
express malice, implied malice, and constructive malice.
1) Express malice was simple; that existed when the defendant actually intended to kill his victim.
2) Implied malice existed when he intended to cause “grievous bodily harm” to his victim and, by so doing, killed him.
3) Constructive malice existed in two circumstances: first, when the defendant killed his victim in the course of, or in furtherance of, committing a felony (as a serious crime was then called); and second, when the defendant killed his victim in the course of, or for the purpose of, resisting an officer of justice, or resisting or avoiding or preventing a lawful arrest, or effecting or assisting an escape or rescue from legal custody.

Constructive malice is now abolished.

Question 4

Moloney

Answer 4

Mens rea of murder is intention to cause death or GBH.

Question 5

Nedrick

Answer 5

D poured parafinn through letterbox of X’s house and set it alight. A child died.

The CA found the ‘highly’ probable dictation was wrong’.

“There must be some virtual certainty as a reasult of the defendant’s actions and that the defendant appreciated that such was the case”

CA It was held that if foresight of virtual certainty is established, then the jury is free to find intention on part of the defendant. However, just because there is VC does not require the jury to find intent.

Question 6

Current Mens Rea

Woollin

Answer 6

A consequence is intended if it was the defendant’s purpose to cause it.

1) A consequence is intended if it was the defendant’s purpose to cause it.
2) Juries may find the defendant intended the result if:
a. ) the result is a virtual certainty of the defendant’s act, and
b. ) the defendant knows it

Question 7

Loss of self control requirements

Answer 7

1) Loss of self control (the defendant cannot have been acting for revenge.
2) A qualifying trigger under section 55 is needed.

Question 8

Woollin HOL

Answer 8

D killed his child by throwing it against a hard surface. D did not desire to kill the child.
HOL said the direction to jury in first instance in relation to a ‘substantial risk’ was not appropriate for oblique intention.

Endorsed the Nedrick virtual certainty set out by CA, adding it if for the jury to find whether D intended this

Requirements: Oblique intention requires the result

a) to be a virtual certainty (objective requirement)
b) to be foreseen by D as a virtually certain (Subjective)
c) for the jury to find intent

Followed Nedrick’s virtual certainty.

Question 9

Virtual certainty

Answer 9

Only those cases where D sees the circumstance or result as nearly inevitable.

Question 10

Nedrick COA

Answer 10

Lord Lane said that intention is a ‘virtual certainty’ as a result of the defendant’s actions.

Question 11

Is foresigh less that virtual certainty sufficient?

Answer 11

Woollin is the current law, so it will not be sufficient. Such foresight may amount to a belief and/or recklessness, but not to an intention.

Question 12

Woollin Laccon

Answer 12

Where part A of the test (virtual certainty of the act) is not satisfied where part B is.

Question 13

Part b of the Woollin test

Answer 13

D must have foreseen the offence as a virtual certainty. this is a subjective question. Thus, if the jury believe that D honestly did not foresee the offence as a virtual certainty, even if it was virtually certain in fact (part a) and even if it would have been obvious to a reasonable person, this part of the Woollin test will not be satisfied and the Jury are not entitled to find oblique intention.

In DPP v Smith, HOL opened the possibility for an objective definition of intention. However, post Crimimnal Justice Act 1967 s8 and Woollin, it is clear that the objective route has been closed.

Question 14

Are the Jury obliged to find intention if part a and b of the Woollin test are satisfied?

Answer 14

In Nedrick - the court described the jury as ‘inferring; intention.
In Woollin - the court described the jury as ‘finding’ intention

Inferring implies less discretion than finding.n

Question 15

Positives for the Jury’s discretion in ‘finding’ intention

Answer 15

It provides them with useful ‘moral elbow room’ within difficult cases as said by Horder.

In the case of Gillick v West Norfolk, the doctor satisfied the 2 stages in the Woollin test. However, although this did not happen, the Jury COULD HAVE found that the doctor did not have intention because they are not required to find intention from the first two parts of the Woollin test.

In Re A, the case involved a medical separation of conjoined twins where it was virtually certain that the operation would kill one of the twins and the Doctor knew this. Again, when asking if D intended to kill, it is possible that the third part of the Woollin test could be used to avoid this conclusion.

Question 16

Negatives for the Jury’s discretion in ‘finding’ intention

Answer 16

1) It is unpredictable: without a criteria to guide the jury, different Jury’s will come to different conclusions. This is objectional from a rule of law perspective. It is also unreliable as a method of distinguishing cases.
2) The jury decides the law, by not providing a legal definition to guide the jury means that they are not only being asked to apply a legal rule, they are being asked to define it.

Question 17

R vG

HOL

Answer 17

To satisfy mens rea of recklessness:

1) D must have foreseen a risk of the relevant element of the actus reus (subjective) AND;
2) Unreasonably continued to run that risk. (objective)

Question 18

Actus reus of Criminal damage

Answer 18

1) Property
2) Belonging to another
3) To be damaged by D’s conduct.

Question 19

Stephenson

Answer 19

D, who suffered from schizophrenia, sheltered in a haystack and made a fire for warmth. Inevitably, the fire spread and caused damage. D was charged with criminal damage, the mens rea required that D be reckless to causing damage. Medical evidence was given to indicate that D might not have been aware of the risk of damage.
COA held: The trial judge was wrong to point out obvious risks, the test is subjective so it was a misdirection to question the obviousness of the risk: the only question is whether D forsaw the risk.

Question 20

Brady

COA

Answer 20

D was drunk in a nightclub, he climbed onto he railing and then fell causing serious injury to V.
COA held that ‘foresight of ANY risk is sufficient”. They rejected that D had to foresee ‘an obvious and significant risk’.

Question 21

Parker

Answer 21

D lost his temper and caused damage to a public telephone. D claimed that in the heat of the moment, he was not aware of the risks.
COA: Although D’s awareness of the risk of damage was suppressed by his anger, the risk must have entered his mind.

Risk was foreseen even if it was ‘suppressed’, or ‘driven out’ or where D ‘closed his mind’ to it.

Question 22

Reid

Answer 22

Lord Goff suggested that D could be recklessly indifferent to a risk without being aware of it. However, in light of R v G it is likely that D would not be reckless in these circumstances.

Question 23

Cunningham (1981)

HL

Answer 23

SUBJECTIVE
The court held that D must foresee the risk. This is why the current subjective test for recklessness is referred to as Cunningham recklessness.

Question 24

Caldwell

Answer 24

The HOL expanding the Cunningham definition of recklessness to include the objective recklessness. Lord Diplock states that D would be reckless where:

1) she foresees a risk (Cunningham) or
2) She failed to foresee a risk that would have been obvious to a reasonable person.

THIS IS OBJECTIVE RECKLESS (OVERTURNED IN G)

Question 25

G

Answer 25

The HOL overruled Caldwell and went back to Cullingham. Criticism in Caldwell

“A person acts recklessly … with respect to
(i) a circumstance when he is aware of a risk that it exists or will exist and
(ii) a result when he is aware of a risk that it will occur;
and it is in the circumstances known to him, unreasonable to take the risk” (per Lord Bingham)

Question 26

AG’s Reference

Answer 26

Confirms R v G.

Question 27

What is the starting point for intention?

Answer 27

Set out by Lord Bridge as the “golden rule”. That is most the time the courts do not have to define the meaning, it is left for the jury to give intention its normal meaning. Generally that is taken to mean aim or purpose.

Question 28

R v Matthews and Alleyne

Answer 28

The COA emphasised that the direction entitled, but does not require, the jury to find intention.

Question 29

Mohan

Answer 29

It seems clear that D intends a result if he acts with the purpose or object, of bringing it about

Question 30

Anthony Duff argues

Answer 30

that if D fires a gun knowing P is nearby and we are trying to decide whether he intended to kill P. Duff argues that if D aims to cause P’s death by his actions, then we can say that D attempts to kill P (This point was made by the COA in Moloney).

Question 31

In Hardy v Motor Insurers’ Bureau

Answer 31

it was said that that accused “must have foreseen, when he did act, that it would in all probabilities injure the other person. Therefore, he had the intent to injure the other person”.

Question 32

Moloney HOL

Answer 32

the defendant was charged with murder after shooting his stepfather during a drunken game. It was not clear that, when he pulled the trigger, he realised the gun as pointing at the victim. His conviction was quashed because the trial judge wrongly mis-directed the jury. Lord Bridge’s remarked that “when directing a jury on the mental element necessary in a crime of intent, the judge should avoid elaboration of what is meant by intent, and lead it to the Jury’s good sense to decide intent, unless the judge thinks it necessary to avoid misunderstanding”. Lord Bridge then said that if the Jury does need direction (in the rare case), the judge should invite them to answer two questions:
1) Does the death or GBH a natural consequence of the act?
2) Did the defendant foresee that consequence as being natural of his act?
If the Jury should then be told that if they answer yes to both, it is proper inference for them to draw that he intended the consequences.
In the case of Moloney, D did not think about the risk of death at all so the case was not of foresight.

Leave it to the judges good sense
Lord Bridge’s remarked that “when directing a jury on the mental element necessary in a crime of intent, the judge should avoid elaboration of what is meant by intent, and lead it to the Jury’s good sense to decide intent, unless the judge thinks it necessary to avoid misunderstanding”.

Question 33

The Law Commission’s Draft Criminal Code (Law Com 177, (1989)) recommended a significant change (never enacted):

Answer 33

54(1) A person is guilty of murder if he causes the death of another:
¥ (a) intending to cause death; or
¥ (b) intending to cause serious harm and being aware that he might cause death

It is too extensive to impose liability on someone for murder when they only intended to cause serious harm

The gbh rule was further criticised in A-G’s Reference (No 3 of 1994) [1997]

Powell [1997] 4 All ER 545, the HL, dealing with the mens rea of a secondary party to murder, cast doubt on the rule: ‘the present definition of the mental element of murder results in defendants being classified as murderers who are not in truth murderers… … It results in the imposition of mandatory life sentences when neither justice nor the needs of society require the classification of the case as murder and the imposition of a mandatory life sentence.’ (per Lord Steyn at 552)

Question 34

Law Com 304 Proposals

Answer 34

‘First degree’ – murder with intention to kill or to cause serious injury with awareness of serious risk that death might result (mandatory life sentence)
‘Second degree’ – murder with intent to cause serious injury or intent to cause some injury/fear/risk of injury and aware of serious risk of causing death or with partial defence such as LOSC/DR (discretionary life sentence)

Question 35

Paul Smith [2016] EWCA

Answer 35

Caused GBH to man and was convicted of causing GBH with intent. He was then released and victim then died. Provided he intended to cause GBH and he did and providing the victim died, which he did, he was sent back to jail, he was convicted and sentenced to life imprisonment.

Question 36

First degree Murder: Pressure Grows to create a new offence (The Times, Sept 9 2016)

Answer 36

We need an offence of ‘first degree murder that would encompass intentional killing only’ (Alex Chalk MP)

Question 37

Gore

Answer 37

she tried to murder husband with poisoned medicine, which she got from doctor, husband becomes ill but does not die, he summons doctor, doctor then takes medicine to show its fine and dies.

The law transfers it from victim A to victim B, even if B is not a foreseeable victim. Even though the chain of events was not one that Gore anticipated, the intention towards her husband can be transferred so that she intentionally poisoned the apothecary.

Question 38

Latimer

Answer 38

Gore principle applies to non-fatal offences

D lost fight against X, he intended to hit X with bottle but missed and cut Y. Held: D through transferred malice injured Y.

Question 39

Doctrine of transferred malice cases

Answer 39

Gore
Latimer
Grant (2014) CA

Question 40

Grant (2014)

CA

Answer 40

D fired two shots at X, one bullet hit Y, a 5-year-old girl paralysing her, second shot hit Z in the head. Both victims survived but with serious injuries. Prosecution brought attempted murder of X and GBH against Y and Z using the transferred malice. COA said they could do this, the intent to kill X included an intent to include GBH and this intent could be transferred to both victims. Originally they tried to account for attempted murder. Trial judge held no, no need to transfer this malice for original attempt. It is the liability for injury where you need the transfer, therefore, it is the result crime where transfer malice is applicable, not a conduct crime like attempted murder.

Question 41

Limitations of transferred malice cases

Answer 41

Pembliton

A-G’s Reference (No 3 of 1994)

Question 42

Pembliton

Answer 42

The defendant threw some stones into a crowd of people. He wanted to disperse the crowd. A stone hit and smashed a window. He was convicted of criminal damage and appealed.

Held:

Conviction quashed. His mens rea for an offence against the person could not be transferred to a property offence as they are entirely different offences.

Question 43

A-G’s Reference (No 3 of 1994) [1997

Answer 43

Man stabs the pregnant woman who then gives birth and baby later dies of causes relating to the attack by D. HOL took the view that to convict defendant of murder would require a double transfer from the mother to the unborn child and then from the unborn to the reasonable creature. Defendant not guilty of murder.

‘double transfer’ of intent from mother to foetus to child born alive so as to make D guilty of murder ‘strains the idea of transferred malice’ (Lord Mustill)

Question 44

Gnango [2011] UKSC

Answer 44

Defendant, G, had a shootout with a rival in a car park, result was the accidental death of a woman crossing between them. The man who fired the shot, P was never caught. P was aiming to kill G so he was guilty of murder due to transferred malice. Held: Supreme Court made G guilty either as a joint principle or as a secondary party/accessory as a participate with crime with P.

Question 45

Moloney HL

Answer 45

‘The golden rule should be that, when directing a jury on the mental element necessary in a crime of specific intent, the judge should avoid any elaboration or paraphrase of what is meant by intent, and leave it to the jury’s good sense to decide whether the accused acted with the necessary intent …..’ Per Lord Bridge

Defendant and V had a drunken argument about which of them could load a shotgun more quickly. D pulls trigger drunk and didnt realise. HOL said the golden rule applies here. This is direct intent.

Question 46

Nedrick (1986) CA

Answer 46

Oblique intent

D set fire to X’s house ‘to frighten her’ and V, a child, died in the fire.
Held: direction should stipulate that only if death or serious harm was virtually certain to result from D’s act, and he appreciated that this was so, the jury could ‘infer’ intent. Nedrick decides that nothing less than virtual certainty will do (eg foresight of death/gbh as ‘highly probable’) is sufficient.

CA quashed the order as it has to be bound to happen

Question 47

Hyam (1975)

Answer 47

Nedrick changed the Oblique intention case from “highly probable”(hyam) to virtually certain.

Question 48

Woollin (1999) HL

Answer 48

Nedrick was confirmed, with a minor change:
1) death or serious bodily harm was a virtual certainty, AND
2) The defendant appreciated that such was the case.
per Lord Steyn

Question 49

When might a jury find (or infer) that a person who appreciates that death/gbh is a virtual certainty does not have the necessary intent?

Answer 49

Re Re A (Children)(Conjoined twins) -separating twinss

Question 50

Stringer [2008] EWCA

Answer 50

Defendant set fire to home with mother and siblings inside, family jumped from window to escape, some injured, but one brother did not wake up because he was wearing headphones in bed and he died. COA upheld conviction saying that obviously someone would be seriously injured, even taking into account M’s age and his low IQ.

Question 51

When will Woollin direction be required?

Answer 51

1. Where D has a purpose other than causing death/serious injury but knows he cannot accomplish his purpose without doing so
   The standard example:
   D places a heavily-insured item on a plane, together with a bomb set to explode in mid-air. The item is destroyed (as D desired) but the crew and passengers also perish. D says ‘I did not intend to kill anyone.
2. D has an alternative purpose that he could accomplish without causing death/serious injury to V but his actions in doing so raise the question whether he has crossed the Woollin boundary (eg D robs V of her handbag and, in order to make her let go of the bag, causes her injuries that ultimately prove fatal, as in Royle [2013] EWCA Crim 1461).
3. Where D has no particular discernible purpose eg he loses his temper and hurts a baby, as in Woollin itself). With the direction they might accept that D, though he did not want to kill/cause serious injury to V, must have known it was a morally certain outcome. In such a case they may still convict.

Question 52

The Woollin/Nedrick formula excludes all of the following from murder (though not from manslaughter):

Answer 52

1. D doesn’t see death/serious injury as virtually certain but a reasonable man would do so (cf DPP v Smith [1961] AC 290)
2. D sees death/serious injury as a natural or probable consequence but not virtually certain
3. D sees death/serious injury as a highly probable (but not virtually certain) consequence (cf Hyam v DPP [1975] AC 55)

Question 53

Hayes v Williams

Answer 53

A person intends to cause a result if he acts with the purpose of doing so.

Question 54

Dpp v smith

Answer 54

D doesn’t see death/serious injury as virtually certain but a reasonable man would do so .
Cannot be convicted of murder under woollin.