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Criminal Law [G153] Miss Hart

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By the end of this unit, you will be able to (AO1): Understand what is meant by the term ‘mens rea’ and the different states of mind that this evolves Explain what is meant by intention in the criminal law, and the development of the law on oblique

intent Describe the meaning of recklessness in the law and the evolution of the test.

You will also be able to evaluate (AO2): The development of the law on oblique intent, and the proposals for reforming it. How objective and subjective approaches have affected the law on recklessness

Homework 1. Complete Homework Sheet (1) and complete Case Cards for Actus Reus and Mens Rea.

End of Unit Assessment Once we have finished this unit you will be given one week to revise for a DRAG test on this and actus reus. You should remember that this will need you to show understanding of both definitions and cases for both topics


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Mens Rea: Introduction

Mens rea literally means ‘guilty mind’.

It is generally the most important element in allocating blame and justifying any future punishment and generally refers to Ds state of mind at the time of the offence. It is often called the fault element of the crime and is normally the element that can turn an innocent act into a guilty one! Silly Task: Look at the three pictures below. Are they innocent or guilty actions?

…and each crime may have more than one element of MR. If this is the case all the elements need to be proven.

Theft Example:

… Not all crimes require the same level of fault. Generally speaking, the more serious the crime the higher the level of fault expected from D.

Mens Rea

Murder Involuntary Manslaughter

Element One:

Element Two:


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WWhhaatt aabboouutt MMoottiivvee?? Is it important in the criminal law? It certainly is in the criminal law programmes on the TV… more that whodunit, we want to know whydunit…

R v Steane 1947 (CA)

Facts: Ratio:

Lord Goddard: 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


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Types of Mens Rea 1

Intention Whilst you could intend to commit any offence, no matter how minor, here we are focused on crimes

which require intention as part of their proof e.g. theft, murder.

These tend to be the more serious crimes, with the more serious fault element reflecting this.

Thinking: What do you think intention is? What words could we use to describe it?

Remember: The law is rarely straight forward, and here there are at least four types of criminal

intention!

In deciding whether D has the intention necessary or not we tend to look at the foresight he had of the consequences.

Task: Look at the grid below. Put each of the scenarios under one of the boxes, then decide which you think have foreseen their consequences and therefore may be liable.

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.

Specific Direct aka express

Basic Oblique aka indirect


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Direct Intent [or Express]

Simply put, this means you both foresee and intend the consequence which occurs.

e.g. I pull a gun, point it at you and say, “You’re dead.” I then pull the trigger.

This is the case in the majority of cases, although I may not even need to say the words! It has been described as the courts as a wish, hope, desire etc. The test for intent is subjective. This means that it is based on what D, in those circumstances thought, not what the reasonable person would think.

R v Mohan 1975

Facts: Ratio:

“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”


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Oblique Intent

*This is a really complicated area and probably one of the worst ones we will do!*

What does it mean? This is where D intends one consequence (e.g. arson) but another occurs (e.g. murder). Clearly we can’t say that he has a direct intent to kill, but could he have known that this might be another outcome and therefore impliedly intend it? The answer hinges on whether the death was foreseeable and indeed, just how foreseeable something has to be to be intended in the law.

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!

Scenario: What if I am sick of a pupil and decide to blow up E52, knowing that the student will be in there during lesson time. The classroom blows up, killing the rest of the class as well. Did I intend to kill the others? What argument could you make to justify my intent, and therefore ensure that I am found guilty? For the cases we look at, you need to be confident:

Describing the facts and the ratios of the cases [AO1] Understanding how the court came to that conclusions, and why they did. You should also be

able to spot problems with their reasoning, and comment on the consistency (or lack!) in their decisions. [AO2]


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How do we prove oblique intention?

Foresight of Consequences

Why was there a problem?

DPP v Smith (1961) 1. Why was this outcome unfair to Mr Smith? 2. Why could the House of Lords not simply just change their minds and change the law?

Because the judges wouldn’t change the law, the government had to step in and they passed

Criminal Justice Act 1967 s.8 which sets out the legal test for ‘proof of 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.

So what does this mean? Evidence of intention is a question of , and so is left to the to decide on the basis of any evidence they feel is relevant. This means that ‘foresight of consequences’ is only of intention, and the jury can – if they want – ignore it. The section makes it clear that D must foresee it as more than and , but does not say how much more they must foresee it by. This is left to the rest of the cases, and the courts!

FACTS: D involved in a robbery, V was a policeman and tried to stop him by clinging to the bonnet. He was shaken off into the path of another vehicle and killed. D was charged

with murder. Was he guilty?

LAW:


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Development of Foresight of Consequences

Hyam v DPP (1975)

What do you think? How might you develop your AO2 in critical comment with this case?

What happened next....?

R v Moloney (1985)

1. Look at the test, and then back s.8. What had Lord Bridge forgotten? 2. Should ‘oblique intent’ have even been an issue here?

FACTS: D set fire to a house, killing children inside. She only intended to scare.

LAW: The court said the test for foresight was: D must have foreseen that death or GBH was a highly

probable result.

Ratio: The House of Lords ruled that foresight of the consequences is only evidence of intention. (It is not enough to form intention in its own right) and the probability must be overwhelming

This next section has been overruled by later cases

Bridge LJ set down a two stage test (to decide whether consequences were foreseen) to be put before juries:

1. Was death or really serious injury a natural consequence of the defendant’s act? and

2. Did D foresee that consequence as being a natural result of his act?

FACTS:


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R v Hancock & Shankland (1986)

R v Nedrick (1986) *Key case* CA 1. What do you notice about the two branches of this test? 2. How might this test have changed the outcome for D in Hyam v DPP? 3. Why might the word ‘infer’ be so important here?

FACTS: DD were miners who were on strike & trying to stop another miner going to work. They dropped a concrete clock from bridge intending to block the taxi carrying the miner. It hit the taxi, killing the driver. Ds were charged with murder, and convicted after the trial judge used the Moloney direction.

LAW:

FACT: LAW:

The CA decided to use this case to clarify the rules and set an easy to understand test for the jury: 1. How probable was the consequence which resulted from D’s

voluntary act? and 2. Did D foresee the consequence? Those consequences should be a virtual certainty. If all this can be

proven, then the jury can infer intent from the circumstances.


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R v Woollin (1998) HL Read the case report included and answer the following questions in as much detail as possible. 1. What happened?

2. Do Woollin’s actions amount to the AR of murder? 3. What was the decision of the House of Lords? 4. How did the House of Lords modify the Court of Appeal in Nedrick? 5. What is the new ‘model direction’? 6. Explain the fact that Woollin may have been convicted under the new law.


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So, where does that leave us? The most recent statement on the law from the Court of Appeal (and a local case – MK!).

R v Matthews & Alleyne (2003)

Hmm... what do we think? What issues might there be with this decision? What does it seem to say about foresight of consequences?

FACT:

LAW: Grounds of appeal: the trial judge told the jury that if ‘drowning was a virtual certainty and [the appellants] appreciated that …hey must have had the intention of killing him’. DD appealed on the basis that the direction went beyond what was permitted by Woollin and equated foresight with intention


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Consolidation In your pair: 1. Sort out the cards and match the case, the ratio and the facts. 2. Complete the grid on the key cases below, using this information.

Name Facts FoC Considered? Test/ Point of Law Verdict

DPP v Smith (1961) HL

D set fire to the house of her love rival, by pouring petrol through the letterbox, , killing two children inside.

Bridge LJ: a. was death or really serious injury a natural consequence of D’s act? And b. did D foresee that consequence or injury as a natural result of his act? If yes to both, jury find D had the necessary intent.

Yes.

Foresight of consequences is only evidence of intention, it is not enough to be intention on its own.

R v Nedrick (1986) CA

Due to the misdirection of the judge, D’s conviction for murder was replaced with one for manslaughter.

DD robbed the defendant, who told them he could not swim. They then pushed him in the river Ouse and he drowned.


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Type of Mens Rea [2]

Recklessness

This area is a little clearer [thankfully!!!]. This is currently defined as:

The conscious taking of an unjustifiable risk.

What does this mean? D need only have a small awareness of the risk to be found criminally liable. Recklessness is sometimes implied in the phrase “maliciously”, especially when it appears in statutes (well... mostly). Offences which have recklessness as some form of their mens rea include assault and battery, criminal damage and actual bodily harm. The main debate of this topic is whether the test for recklessness should be objective or subjective.

Objective means: Subjective means:

R v Cunningham (1957)

This is a test, and was the standard case for years, until the following

controversial decision by House of Lords. This caused huge upset and confusion

FACT:

LAW: The court quashed his conviction, holding that the test for recklessness was:

Whether D realised that there was a

risk of the outcome occurring, and went

ahead anyway .


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R v Caldwell (1981) What are the implications of this decision?

Hmmm... let’s stop a minute. On your desk you have a card. The card is a point of criticism regarding Caldwell. In your pairs,

explain why this is a criticism. Each group will feedback, so that we have a whole list of points!

Point Explanation This has changed the test for recklessness completely.

It is too general 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.

It makes the law unclear for both the courts and the defendants.

It reduces the amount of risk D needs to foresee.

FACT:

LAW: 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


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So were the consequences of the decision in Caldwell really that bad?

Elliot v C (1983) D Why was this decision unfair morally and legally?

.... and eventually, the House of Lords used the to overrule Caldwell

R v G (2003)

A*- B Recklessness Extension: Read Storey & Lidbury Criminal Law pp.39-44. Add to your notes on this area, and use this to find the facts and ratios of the following cases. What do they illustrate about the problems in this area of the law? Lawrence Spratt Seymour

FACT: LAW:

FACT: How much damage can I do with a pile of papers under a wheelie bin…?

LAW: HL used the Practice Statement to overrule Caldwell – the test is:

Did D realise that there was a risk and go ahead anyway?

DD’s convictions were overturned, and the decision was followed in the later

case of Cooper (2004).


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“The meaning of intention in 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.” Critically consider whether you agree with this statement Jan. 2005 [50 Marks]

Application:

Criminal intent is one of a number of mens rea that can be use when convicting a defendant, other areas of mens rea like recklessness or negligence have been defined much more clearly, while intent remains dangerously precarious in definition. This seems extremely unfair when it is taken into context that criminal intent is used as the mens rea in murder case, and a conviction holds a mandatory sentence of life. One of the largest problems with the definition of criminal intent is its breadth, as both direct and oblique intent can be used. Direct intent is said to be ‘a true desire to bring about a consequence’ and oblique intent is stated as ‘a state of mind where the defendant appreciates his conduct is virtually certain to lead to a particular conclusion (even if that conclusion was not desired)’, however oblique intent is not always defined in this way and used to include the foresight of highly probable causes, as in the case of R v Smith 1961, which would now be a manslaughter case, so if oblique intent is difficult to define then the whole concept of criminal intent seems impossible. The mens rea of murder also complicates the issue of a clear and satisfactory definition of criminal intent, lord Coke (who stated the only definition of murder we hold today) wrote that intent for murder was malice aforethought either by express or implied intent which significantly widens the area of interpretation. Express intent in murder is said to be a ‘true desire to kill’ while implied intent is the more shaky area of ‘intent to cause really serious harm’ (GBH) again these areas are widened by the fact that both of these carry the direct and oblique interpretations as well, which makes a definition problematical. The definition of criminal intetn as it stands now is defined in the case of Matthews and Alleyne which included indirect intention, the judge directed the jury to find him guilty if they thought that the defendants saw a virtual certainty of the victim drowning. This case overturned the precedent set by Moloney, Nedrick and Woollin and defined criminal intention as direct and oblique intent, a much wider category. This definition however is far from clear and satisfactory, firstly although direct and oblique intention have been defined it seems that in certain crimes or circumstances different rules apply (Matthews and Alleyne) this leaves the law inconsistent and any definition is therefore opaque and illogical. And secondly, is it fair clear or satisfactory to convict a defendant on the same charge as both intent to kill and the virtual certainty that the defendant’s actions will lead to really serious harm? Virtual certainties are a dangerous area to try and define. The question is can parliament make a statute that is able to define criminal intention, a statute that is clear, simple, fair and effective or will they simply make a clouded matter much more unclear. In the Criminal justice Act of 1967, parliament defined the ‘proof of criminal intent’ in section 8 of the act. It reads that 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 from the evidence as appear proper in the circumstances.

This was the last attempt that parliament gave upon trying to define intention, and it included oblique intention, which was overturned by R v Moloney 1985 and followed by Nedrick and Woollin. The fact that it stated that the jury could find the defendant guilty if they think the evidence infers it was enough for the statute to be easily overturned with the common law. The act gave the jury the option, which would mean the judgement law with them and that as it didn’t define it properly, it was left to the interpretation of the judiciary, which it eventually was in the House of Lords – who went against the direction in the act, and since it was plainly vague (i.e. infers) it was easy to do. The definition of criminal intent as it stands is far from clear and certainly not satisfactory, although its definition is much better than it has been in the past, for example changing from highly probable to virtual certainty it still holds too many inconsistencies and maybe has too much breadth (e.g. implied oblique intent). There is also the problem of the case variations, although a consistent decision is needed, different cases have different circumstances (the difference between the intent of Moloney and that of Matthews and Alleyne) and different interpretations are needed sometimes. Would it be a good idea to have a statute that pull all diverse into a few pigeonholes? This may cause more judicial problems than is solved, not to mention the face that a statute would be subject to the judge who interpreted it; with the different ways of interpretation (literal, mischief) it would be difficult to have a consistent decision and would depend completely on all judges interpreting the statute literally. The act of 1967 made little impact why would this one unless it closed more doors than it opened making sure everything was followed tightly to the letter. If a new statute was introduced, then other areas of mens rea should be taken into account, like provocation, the Homicide Act 1957 has an impact on intention and was written at a time when the penalty for a murder conviction was much more serious (the death penalty) so mens rea was taken into a much broader context in order to save those who had a more distorted view of the crime, maybe a statute should be introduced laying down at least a minimum of more modern principles of intention and leaving certain areas of the law as they are now, a mix of both the present definition and a new contemporary ideal of intention which would reflect are society and culture.

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