Transcript U4_Op2_P1_Presentation_A2_MENS REA

Elements of a Crime
MENS REA
Mens Rea
ACTUS REUS & MENS REA
• Remember that to be guilty of a crime there needs to be two elements
present:
– Actus reus
– Mens rea –
– 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.
Mens Rea
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.
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MENS REA
• There are different levels of mens rea. From highest to lowest
they are:
• Intention
• Recklessness
• Negligence
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RECKLESSNESS
• A definition of recklessness:
A situation where the defendant knows that there is a risk that his
actions will lead to harm but goes on to take the risk regardless.
• This is a lower form of mens rea from intention.
Mens Rea
RECKLESSNESS
• Recklessness first arose in the case of CUNNINGHAM (1957).
• The defendant tore a gas metre off a wall to steal the money from it.
The gas leaked into the next door house (where his prospective
mother in law lived!). The woman became very ill as a result.
Cunningham was charged with “maliciously administering a noxious
thing” under the Offences Against the Person Act 1861. He was
acquitted because he did not intend to cause any harm and didn’t
therefore realise he was taking a risk.
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RECKLESSNESS
• Cunningham.
• The Court of Appeal looked at the word ‘maliciously’ and decided
that it meant intentionally or recklessly.
• They stated that recklessness arose where “the accused has
foreseen that the particular kind of harm might be done and yet has
gone on to take the risk of it”.
• The question was whether Cunningham realised there was a risk of
the gas harming anyone and still went ahead with his plan!
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RECKLESSNESS
• The Cunningham case led to what has become known as
CUNNINGHAM RECKLESSNESS.
• This type of recklessness is SUBJECTIVE as it is based on what the
defendant ACTUALLY realised (or foresaw) was a risk at the time of
the offence not on what he OUGHT to have foreseen.
• (This is as opposed to what a reasonable man would consider to be
a risk from looking at the facts which would be a more objective
assessment.)
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• THINKING POINT!
• WHAT DO YOU THINK OF THE LAW SO FAR?
• CAN YOU SEE ANY PROBLEMS/ISSUES WITH
CUNNINGHAM RECKLESSNESS?
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RECKLESSNESS
• As a result of Cunningham, any Act which contained the word
‘maliciously’ was taken to mean ‘recklessly’.
• In 1971, the Criminal Damage Act was passed and replaced the
word ‘malicious’ with ‘reckless’. However, no clear definition of
the word ‘reckless’ was given in the Act so the courts continued
to apply the principles in Cunningham.
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RECKLESSNESS
• Stephenson 1979.
• Stephenson was a schizophrenic. He was sleeping in a haystack
and decided to light a fire to keep himself warm! He caused £300
damage and was prosecuted. The Court held that his schizophrenia
prevented him from realising that he had created a risk that would
have been foreseen by a reasonable man.
• The subjective test was therefore applied – i.e. based on what
Stephenson ACTUALLY foresaw.
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RECKLESSNESS
• The courts continued to apply this test until 1982.
• The House of Lords decided two cases on the same day:
Caldwell (1982) and Lawrence (1982).
• The decisions in these cases created a lot of confusion in this area
of law for quite a number of years. They led to what is known as
CALDWELL RECKLESSNESS.
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RECKLESSNESS
• CALDWELL 1982.
• Caldwell was not happy about having been dismissed from his job
in a hotel. When he was very drunk he broke a window on the
ground floor and started a fire. The fire was put out very quickly
and no-one was harmed. Caldwell was charged with criminal
damage and convicted.
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RECKLESSNESS
• Caldwell appealed and the case finally reached the House of
Lords.
• Lord Diplock stated:
“that the only person who knows what the accused’s mental
processes were at the time of committing the crime is the accused
himself and probably not even he can recall them accurately when
the rage or excitement under which he acted has passed or he
has sobered up if he were under the influence of drink at the end
of the relevant time.”
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RECKLESSNESS
•
Lord Diplock created a two stage test that someone is reckless
under the Criminal Damage Act 1971 if:
•
1. He does an act which in fact creates an obvious risk that
property will be destroyed or damaged.
(OBJECTIVE TEST – based on what a REASONABLE MAN
would have seen was a risk).
2. When he does the act he either has not given any thought to
the possibility of there being any such risk or has recognised that
there was some risk involved and has nonetheless gone on to do
it.
(The SUBJECTIVE TEST from Cunningham).
•
•
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RECKLESSNESS
• The decision in Caldwell led to considerable difficulties.
• Think back to the Stephenson case. Would a reasonable man have
foreseen the risk? Should Stephenson have been convicted?
• The decision in Caldwell was heavily criticised but was applied as it
was a precedent from the House of Lords. It did, however, cause
considerable injustice.
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RECKLESSNESS
• Elliott -v- C (A Minor) (1983).
• The defendant was a 14 year old girl with learning difficulties. She
was playing with white spirit and matches in a garden shed which
was destroyed in the fire that followed. She gave no thought to the
risk but was not capable of appreciating the risk anyway due to her
learning difficulties.
• She was found guilty because the Court was bound by the
decision in Caldwell.
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RECKLESSNESS
• Caldwell recklessness continued until R -v- G and Another (2003).
• Two boys, aged 10 & 11, entered the back yard of a shop and set fire
to some newspapers. They put the newspapers under a wheelie bin
and left the premises without checking that the fire had gone out. The
fire spread and caused over £1m worth of damage.
• The Caldwell precedent was applied by the Crown Court and by the
Court of Appeal. However, a further appeal was allowed to the House
of Lords.
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RECKLESSNESS
• The point of law put to the House of Lords was:
• “Can a defendant properly be convicted under s1 of the Criminal
Damage Act 1971 on the basis that he was reckless as to whether
property was destroyed or damaged when he gave no thought to the
risk, but by reason of his age and/or personal characteristics the risk
would not have been obvious to him, even if he had thought about it?”
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RECKLESSNESS
• The House of Lords reversed the Court of Appeal’s decision and
therefore abolished the objective form of recklessness.
• Personal characteristics of the defendant could therefore be taken
into consideration.
• Cases like Stephenson and Elliott would now be decided differently
as a result.
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RECKLESSNESS
•
In order to clarify some of the confusion, the Law Commission’s
Draft Code has provided a definition that a person acts recklessly
with respect to:
•
(i) a circumstance, when he is aware of the 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
unreasonable, having regard to the circumstances known to him, to
take that risk.
•
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TRANSFERRED MALICE
• If a defendant attempts to commit a crime against one person
but, in doing so, actually commits a similar crime against
someone else, they can still be held guilty of the offence against
the actual victim.
• Latimer (1886)
• The Defendant aimed to hit a man with his belt. The belt
recoiled and hit a woman in the face. As both offences were
similar, the defendant was found guilty of the offence against the
woman.
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TRANSFERRED MALICE
• The concept of transferred malice will only apply where the two
offences are similar.
• Pembliton (1874).
• The defendant had been involved in a fight and threw a stone at his
attackers. The stone broke a window. The defendant’s intention to
hit his attackers could not be transferred to the window.
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COINCIDENCE OF ACTUS REUS &
MENS REA
• We have already seen that for a defendant to be found guilty of a
crime, the requisite actus reus and mens rea must be proved to have
been present simultaneously. However, in certain situations this can
prove difficult.
• Thabo Meli (1954).
• The defendants attacked a man and threw what they assumed was
his dead body over a cliff. In fact, he wasn’t dead at that point but
subsequently died from exposure. The defendants were convicted of
murder.
• The Court decided that the actus reus and mens rea were combined
in a series of acts.
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COINCIDENCE OF ACTUS REUS & MENS REA
• Church (1965).
• The defendant took a woman back to his van to have sex. He couldn’t
satisfy her and she laughed at him! A fight followed and the woman
was knocked unconscious. Thinking she was dead, Church threw
her body in the river where she actually drowned. Church was
convicted of manslaughter.
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CONTINUING ACT
• Where the actus reus is ongoing and the defendant has the
necessary mens rea, then the courts have decided that the two
elements do coincide and the defendant can be found guilty.
• Fagan -v- Metropolitan Police Commissioner (1986).
• Fagan drove onto a policeman’s foot. Despite being asked by the
policeman to remove his car several times, he refused. Fagan was
convicted of assaulting a policeman in the execution of his duty.
When Fagan knew the car was on the policeman’s foot the requisite
mens rea was present and the actus reus was still continuing.
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Negligence
• Negligence
• It now has some
consists of falling
relevance in
below the standard
criminal law with
of the ordinary
gross negligence
reasonable person.
manslaughter.
• Objective test.
• Traditionally
associated with
civil law.
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Gross negligence
• Adomako 1995
• D was an anaesthetist who failed to
notice when a patients tube became
disconnected from a ventilator. The
patient suffered a cardiac arrest and
died.
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• Bateman (1925)
• D was a doctor who attended a woman
who was due to give birth. His
supervision of her labour was negligent
and she died.
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