MENS REA

The ‘mental element’ necessary for all serious crimes.

A criminal is punished not so much on account of what he or she has done, but
because of why he or she did it.

There are three states of mind used to denote mens rea:

1. Intention.
2. Recklessness – Subjective (Cunningham).
3. Gross Negligence.

Intention

Direct – ‘a true desire to bring about the consequences’ – Mohan

‘Aim, objective or purpose’

Oblique - The courts consider the related issues of probability and the
defendant’s subjective ability to foresee.

R v Woolin and R v Nedrick both establish that in a murder case the jury can
find intent if it concludes that the defendant ‘death or GBH must be “virtually
certain” to infer intent’.

R v Hancock and Shankland

Recklessness

Defined as taking a ‘conscious, unjustified risk’

There were two types of recklessness; ‘subjective’ and ‘objective’.

R v G and Another – ‘fire bin’ – Abolished ‘objective’ recklessness.

R v Cunningham – ‘gas meter’ – Created ‘subjective’ recklessness.

Crimes that can be committed either intentionally or recklessly are known as

crimes of ‘basic intent’

Coincidence of AR and MR

In order for an offence to be committed the mens rea must coincide in point of
time with the actus reus.

Mens rea implies an intention to carry out a present act, not a future one.
Thabo meli v R – attacked victim, threw body off cliff as believed to be dead.
Died of exposure. On appeal the Privvy council ruled that it was ‘impossible to
divide up what was really one series of events’.

The ruling was followed in R v Church.

R v Le Brun – this view was upheld ‘a series of actions can be referred to as a
continuing act’.

Fagan v Metropolitan Police Commissioner – ruled that ‘was one single

continuing act, rather than an act followed by an omission’.

Transferred Malice

If A fires a gun at B, intending to kill B, but misses and kills C, A is guilty of

killing C. The intention (malice) is transferred from B to C. Leading case:

R v Latimer – Pub, belt, missed, serious wounding. The malice was

transferred.

It is limited to situations where the actus reus and mens rea of the same crime
coincide.

R v Pembliton – A shot at B, missed and breaks a Ming vase. The mens rea for
damage to property was not present, so the intent does not transfer.

Strict Liability Offences

Do not require a mens rea to be proved. The majority are created by statute law
and can also be referred to as ‘no-fault offences’.

Includes; road traffic and environmental offences, and breaches of health and
safety.

Callow v Tillstone – Health and Safety breach - vet, butcher, unsafe meat for
sale- defendant found to be negligent

Alphacell v Woodward – Environmental – Polluting a river – HOL held that

causing polluted matter to enter a river was a strict liability offence.

It is argued that the majority of strict liability offences can be described as

‘quasi’ crimes – not criminal ‘in any real sense’ and are acts merely prohibited
in public interest. This distinction was made in:

Sweet v Parsley in which lord Reid stated that the kind of crime to which a
real social stigma is attached should usually require proof of mens rea. The
appeal was quashed, on the grounds that such an offence was not of strict
liability and required mens rea to be proved. A similar ruling was made in B v
DPP.

In most strict liability cases a fine is imposed apposed to a custodial or

community sentence. However in:

Gammon v AG of Hong Kong the Privy council admitted that the offence was
punishable with a fine of $250,000 and 3 years imprisonment was not
inconsistent with the imposition of strict liability.