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Mens rea

Mens rea :

This is the state of mind of a person to a criminal act. A "guilty mind". Unlike Actus reus, Mens rea has to be proved in order to prosecute for the crime. Mens rea can fall under three different categories:

1. Intention:

This is the highest amount of fault in Mens rea. A person who committed a crime that intended to do so can be said to be more culpable than one who acts recklessly or negligently. Intention can be divided into two subcategories, direct intent and oblique intent.

Direct intent is when the defendant intends to commit or bring about a certain result and it does happen. Oblique Intent is more complicated. This is when the defendant intends to commit or bring about a certain result but knows the consequences of his actions will also bring forth another result.

The courts have struggled to find an appropriate test to apply these types of cases. A subjective test is concerned with whether the defendant could foresee the result of his or her actions. An objective test looks at what the reasonable person would have foreseen as a result of his or her actions. However now, s. 8 of the Criminal Justice Act 1967 allows for the court to determine if the defendant intended or foresaw the result of his or her actions.

2. Recklessness:

This refers to the taking of an unjustified risk. This aspect of Mens rea has given rise to more difficulty as the courts have come up with two different tests which in turn has enabled two different definitions of recklessness which apply to different scenarios.

A subjective test was determined in R v Cunningham. This is now known as "Cunningham Recklessness". This essentially looks at whether or not the defendant foresaw the harm that occurred.

An objective test was determined in MPC v Caldwell. This test essentially looks at what the reasonable man would have seen as a reasonable risk. This is known as the "Caldwell Recklessness". However this test was highly criticised because it claimed that the risk must be obvious to another person and not necessarily the defendant. This causes injustice as it may criminalise someone who genuinely did not foresee a risk of harm. Eventually, the House of Lords overruled Caldwell Recklessness in R v G & R. Thus, the House of Lords held that a subjective standard now applies for determining recklessness.

3. Negligence:

This has to do with falling below the standard of the reasonable person. It plays a very minor role in criminal liability as most crimes fall under recklessness. However, negligence adheres to an objective test which is simply based on the reasonable person and whether or not the defendant did something or did not do something that the reasonable person should have known.

The main role for negligence in criminal law is in regards to gross negligence manslaughter. The requirement that must be established is that the defendant owed a duty of care and was in breach of that duty which caused death. This test was established and set out in R v Adomako. It looks at where the conduct of the defendant was so bad that it amounted to a criminal act or omission.

Contemporaneity Rule:

This is a principle of English Law that establishes that the Actus reus and Mens rea must coincide. Meaning, they must happen at the same time.

Transferred Malice:

The doctrine of transferred malice applies where the Mens rea of one offence can be transferred to another. If the Defendant fulfills both the Actus reus and the Mens rea of an offence, even if the action of the offence was carried out in an unexpected way, the Defendant is still liable. (R v Latimer) For example, if the Defendant deliberately fires a gun at someone with the intention of killing that person but misses and kills someone else instead, they are still held accountable for their actions. Transferred malice is not applicable if the crime that occurred was different from what was originally intended. ( R v Pemliton)

Strict Liability:

Strict Liability offences are non-paradigmatic that require no proof of Mens rea. These types of offences are primarily created by Parliament and are regulatory offences that are aimed at businesses in relation to health and safety. The use of strict liability in criminal law can be controversial as there are many benefits and detriments to the use of it.

Strict Liability is beneficial because:

  • It protects society
  • It is easier to enforce as there is no need to prove Mens rea
  • It saves court time as people are more likely to plead guilty
  • Parliament can provide a no negligence defense where this is thought appropriate
  • Lack of blameworthiness can be taken into account when sentencing

However, there are also arguments against Strict Liability:

  • Liability should not be imposed on people who are not blameworthy
  • Those who have taken all possible care should not be penalised
  • There is no evidence that it improves standards
  • It is contrary to the principles of human rights

To determine if the offence is one of strict liability, there is a general presumption that Mens rea is required to impose that liability because strict liability has potential to create injustice. Although the courts start with this presumption, they may look at a variety of points to decide whether the presumption should stand or if it can be displaced. If it is clear no Mens rea is required, then the offence is one of Statutory Liability. However, if the wording of the statutory offence is unclear, then the "Gammon Test" ( Gammon (Hong Kong) Ltd. v Attorney-General of Hong Kong) is used to decide.

Gammon Test:

1. There is a presumption of Mens rea

2. The presumption is strongest where the offense is 'truly criminal' in nature

3. The presumption applies to statutory offences and can be displaced only by necessary implication that is compellingly clear

4. The only situation in which the presumption can be displaced is where the statute is concerned with an issue of social concern and public safety

5. Strict Liability promotes objects of the statute by encouraging greater vigilance to prevent the commission of the prohibited act

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