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Mens Rea Dr. Maris Köpcke Tinturé
Category Subcategory Objective? Subjective?
Intent 'Core meaning' (ends or means)
Subjective (Objective can be evidence: Crim.J.Act 1967, s8)
'Virtual certainty' (Moloney, Nedrick, Hancock and Shankland, Woollin, Re A)
Objective (inseparable consequence) Subjective
• ‘Moral elbow room’ (‘entitled to find’): special considerations? (Matthews)
• Criticism: should be only subjective
Recklessness Cunningham (good law) (Stephenson, R v G and R)
Objective (unreasonable risk) Subjective
Caldwell (no longer good law) (Elliott)
Objective (unreasonable risk)
'Middle way'? Objective • Good reason for failing to see risk?
Subjective broadened to include: • 'At the back of his mind' (Parker) • Voluntary intoxication
Negligence Gross Objective • Reasonable for whom? • Do D’s characterics, such as age, blindness or hearing
impairment, count? (Caldwell was totally objective, hence Elliott) • D’s special skills count (Adomako)
Ordinary
Strict Liability
Question 1: Statutory construction?
MR presumption (Sweet v Parsley) Defeated if MR reading 'unreasonable': expressly SL or 'necessary implication' (B, K):
• other sections or statutes • 'truly criminal', severity of punishment (but see R v G) • prevent serious danger, eg pollution, and specialised business
activity (Alphacell, Empress Cars) • effectively discourage (Lim Chin Aik)
Question 2: If MR, which? (B, K)
See below MR regarding circumstance (compare Prince: no MR, ie strict liability, regarding age)
MR regarding circumstance
Knowledge Positive (and correct) belief that C obtains
'Wilful blindness' (Westminster)
Deliberate non-enquiry
'Reckless knowledge' Foresight of a risk that C might obtain • Extended by B v DPP to include cases where D has no belief
either way (prosecution only needs to prove that D lacks a positive ('honest') belief that C doesn't obtain)
Mistake of fact (Morgan, B, K)
Positive ('honest') belief that C doesn't obtain: • Subjective (= reasonable or unreasonable belief) • v Tolson: objective ('reasonable' belief) • Note: Morgan remains the standard for mistake of fact, but
ironically it’s no longer good law about the crime it was about (sexual offences, after SOA 2003)