General elements of liability Elements of a Crime

1. General elements of liabilityElements of a Crime MENS REA

2. Aims and Objectives By the end of the session, the student will be able to: • UNDERSTAND that there are three different forms of mens rea and that intention is the highest form. • EXPLAIN that there are two different types of intention. • CLEARLY ILLUSTRATE the law relating to oblique intention with reference to appropriate case law.

3. Actus Reus & Mens Rea • Remember that to be guilty of a crime there needs to be two elements present: • Actus reus –the guilty mind/the physical element. • Mens rea –the guilty act/the mental element. • Actus non facit reum nisi mens sit rea – the act itself does not constitute guilt unless done with a guilty mind. • Once both elements are established, the defendant will be found CRIMINALLY LIABLE.

4. Actus Reus & Mens Rea • For each offence, the required mens rea will be different. • For example, for murder the mens rea is an intention to kill or cause GBH; for assault the mens rea is the intention to cause another to fear immediate or unlawful personal violence or recklessness as to whether such fear is caused. • To be guilty of an offence, the defendant must have at least the minimum mens rea required for the offence.

5. Mens Rea There are different levels of mens rea. From highest to lowest they are: • Intention • Recklessness • Negligence

6. Intention • Defined by the Courts in Mohan (1975): • “a decision to bring about, in so far as it lies within the accused’s power, [the prohibited consequence], no matter whether the accused desired that consequence of his act or not”. • The defendant’s motive is irrelevant when deciding intention.

7. Intention • There are two types of intention: • Direct intention • the defendant wants a result and carries out an act to achieve it. • generally this is easier to prove based on the circumstances of the crime. • Indirect/Oblique intention • the defendant doesn’t want the result that occurs but realises that in acting as he does that there is a possibility that it will happen.

8. Intention • This form of intention can be illustrated in the case of Hyam -v- DPP (1975). • Hyam set fire to a newspaper and put it through the letterbox of a house belonging to Mrs Booth in order to frighten her. She was jealous because Mrs Booth was going out with her boyfriend. Mrs Booth’s two children were in the house and died in the subsequent fire. Hyam had just wanted to frighten Mrs Booth and had no intention to hurt anyone. However, it is reasonably likely when you set fire to a house that someone will be hurt.

9. Intention • This type of intention has been built up through case law largely based around the Criminal Justice Act 1967 s 8. • With indirect intention, the defendant intends one thing but another thing happens. The issue has been whether the defendant foresaw the consequences of his actions.

10. Intention • Foresight of consequences is referred to in Criminal Justice Act 1967 s8: • “A court or jury, in determining whether a person has committed an offence: • Shall not be bound in law to infer that he intended or foresaw a result of his actions by reason only of its being a natural and probably consequence of those actions; but • 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”. • The issue is whether the defendant intended or foresaw death or really serious injury occurring as a result of his actions.

11. Intention • Moloney (1985) • Defendant and step-father were very drunk. They had a race to see who could load a shotgun the fastest. The defendant won. The step-father dared him to pull the trigger and he did, thus killing his step-father. He claimed he never intended to kill him. • HoL held that foresight of consequences is only evidence of intention and not the intention itself.

12. Guidelines given in Moloney (1985). • Lord Bridge stated that the questions to be asked were: Was death or really serious injury a natural consequence of the defendant’s act? and • Did the defendant foresee that consequence as being a natural result of his act? • Lord Bridge only used the word ‘natural’ and didn’t refer to the word ‘probable’ as defined in the CJA 1967 s 8.

13. Intention • Hancock & Shankland (1986) • Defendants were striking miners. They wanted to stop other miners from going to work so pushed a concrete block off a bridge onto the road below to block the road. The block hit the front of a car and killed the driver. The judge put the Moloney guidelines to the jury and the defendants were convicted of murder. This was quashed on appeal.

14. Intention • Guidelines from Hancock & Shankland (1986): • Lord Scarman stated that the Moloney guidelines were unsafe and misleading as probability was not mentioned. • He said that 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 that consequence was also intended”.

15. Intention • Nedrick (1986) • The defendant poured paraffin through a woman’s letterbox and set it alight. A child died in the ensuing fire. The defendant was originally convicted of murder but this was reduced to manslaughter on appeal. The judge tried to clarify the law in the two previous cases and said that the jury needed to ask 2 questions: • How probable was the consequence which resulted from the defendant’s voluntary act? and • Did the defendant foresee that consequence?

16. Intention • Model direction from Nedrick (1986): • “The jury should be directed that they are not entitled to infer the necessary intention unless they feel sure that death or serious bodily harm was a virtual certainty (barring some unforeseen intervention) as a result of the defendant’s actions and that the defendant appreciated that such was the case”.

17. Intention • Woollin (1998) • The Defendant threw his 3 month old baby towards the pram which was by the wall. The baby suffered head injuries and died. • The court dismissed the 2 questions from Nedrick but used the model direction changing the word ‘infer’ to ‘find’ as they felt this would clarify the law.

18. Intention • Matthew & Alleyne (2003) • Defendants dropped the victim 25 feet off a bridge into a river despite him telling them that he couldn’t swim. The victim tried to make his way towards the river bank but the defendants left before he reached it and he drowned. • Following Woollin, foresight of consequences is not intention but is a rule of evidence. If the jury decide the defendant foresaw death or really serious injury as a virtual certainty then they are entitled to FIND intention but are not obligated to do so.

19. Intention • The question of whether indirect/ oblique intention exists is complicated. It has been confused by a variety of model directions from different judges. • It is for the jury to decide whether oblique intention exists based on the evidence as presented to them. • It is a subjective notion based on what the jury believe that the defendant knew or foresaw at the time of the crime.

20. Intention • Now, put all of your books and work to one side. • In small groups, write down on a piece of paper as much as you can remember about the case law development of oblique intention. • You have 10 minutes to do this, starting NOW!