LECTURE 2

ELEMENTS OF A CRIME: THE FAULT ELEMENT

A. MENS REA: INTENTION

Norrie, A, ‘Oblique Intention and Legal Politics’ [1989] Crim LR 793

Norrie, A, ‘After Woollin’ [1999] Crim LR 532
Pedain, A, ‘Intention and the Terrorist Example’ [2003] Crim LR 579
And see list of other articles in Monaghan p80-81

- A requirement for MR is part of the definition of a specific crime.

o E.g. murder has an MR requirement, which the prosecution must prove
in addition to AR of the crime
o Criminal damage has a different MR requirement and so on.

Always start with the actus reus. If D hasn’t killed anyone look at a diff crime
THEN mens rea. THEN defences.

 Always start with the specific crime. Consider the AR of the crime first and
then the MR.
 Some crimes require proof of a specific ‘intention’. Other crimes require either
intention or recklessness as to a specific result.
 This lecture is concerned with the meaning of those terms, but remember to
start with how the specific crime is defined. AR -> MR.

INTENTION

Circumstances

KNOWING THAT A CIRCUMSTANCE EXISTS

Where there are specified circumstances, D's conduct is intentional if they KNOW
that the circumstance exists. This is known as DIRECT INTENTION.
D can also be said to have acted intentionally if they are ALMOST CERTAIN that the
circumstance exists, BELIEVES or HOPES that it exists. This is OBLIQUE
INTENTION.

Results
D intends a consequence if they DESIRE the consequence - it is their PURPOSE or
AIM in acting. This is known as DIRECT INTENTION.
D may also be found to intend a consequence where they do not aim to cause it but
do KNOW OR BELIEVE THAT IT IS VIRTUALLY CERTAIN TO HAPPEN.

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Woollin [1998] 4 All ER 103
A guy killed his own baby by throwing them, and claimed he didn't know that it would
kill the baby. the only reason he ended up being convicted of manslaughter in the
end was because the original judge misdirected the jury
It's an example of oblique intent because he knew it was virtually certain to kill the
baby. The actual verdict of the case was manslaughter, but the point is that it should
have been murder

OBLIQUE INTENTION ONLY WORRY IF DIRECT INTENTION NOT CLEAR. i.e.

deciding to blow up a plane with your intention being something else but ended up
killing. Wanted the insurance money on cargo. Not to blow up ppl.

Intention: always a subjective test. What was going on in their mind at the time
of the crime? Was it their intent? Were they aware it is virtually certain to
happen. Did he want to receive this result or aware of the risk?

Confirmed by:
s 8 Criminal Justice Act 1967:
In determining whether D has committed an offence a court or jury

(a) 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 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

 Do not judge on an ordinary person but the defendant.

QUESTION 1

Should the scope of intention extend beyond direct intention? If so, how far?

Where the result if foreseen

 As a certain consequence of the direct intent (or as the means to achieve it)
 As a virtually certain consequence
 As a highly probable consequence (i.e. setting house on fire to collect
insurance money but know highly probable someone will be killed/injured)
 A probable or possible consequence (probs recklessness)

Should intention extend beyond ‘purpose’?

 Moral arguments

 - levels of blameworthiness

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  Linguistic arguments

 Ordinary language, needs to be able to explain to a jury

 Practical arguments

QUESTION 2

What should be the position if D knows that they cannot achieve their purpose
without bringing about some other result – ie it is a consequence that is known to
be certain to occur.

Steane [1947] K.B. 997

Someone collaborating w/ the nazis. Only reason he did it was to save himself and
family from concentration camps. Reasonable fear. Charged with intentionally
assisting with the enemy. Is it his aim or purpose to assist the enemy? He knows
even tho doing it with regret. On facts judges decided to not decide as intentionally
assisting the enemy. Purpose to protect himself and family. Case problematic. He
intentionally assisted enemy but had defence of duress.

Yip Chiu Cheung [1995] 1 AC 111

Undercover officer puts self at big risk but trying to convict drug traffickers.
Pretending to be part of a gang and entering into drug transaction. No intention of
going through with deal. Criminal who enters is charged w conspiracy to commit a
crime only happens if an argreement is gonna be criminal. Fact officer is doing this to
catch criminals. They said he intends to enter crim agreement. Good purpose doesn’t
matter. Prosecuting other members of a deal bc criminal enterprise.

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 QUESTION 3
What should be the position if D does not desire the consequence but knows that it
is virtually certain to follow from their actions?

Moloney [1985] AC 905

Someone showing how quick they can reload and fire shotgun accidentally shot
someone. No evidence it was his aim. No direct intention. Did he intend in bleak
intention?

Hancock & Shankland [1986] AC 455

Pushing things off motor way bridge into path of road below. Intention may be to
intimidate and block the road. Rock hits vehicle and it crashes and person dies. Not
intention but high probability of death.

Nedrick [1986] 1 WLR 1025

Sets fire to house knowing someone is in house nd they are trapped and killed.

Woollin [1998] 4 All ER 103:

Sets out test:

‘where the charge is murder…..jury should be directed that they are not entitled to
find the necessary intention, unless they feel sure that death or serious bodily harm
was a virtual certainty as a result of D’s actions and D appreciated such was the
case.’ Per Lord Steyn

D was so angry threw baby and hit hard surface and dies. Aim or purpose to kill? Not
clear. Virtually certain itd suffer srs injury? Yes. Did the d know that? YES

Must 1st consider if result is actually be virtually certain?

Evidence or proof?

Matthews & Alleyne [2003] EWCA Crim 192

QUESTION 4
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4. What should be the position if D does not desire the consequence but knows that
it is highly probable that it will follow from their actions?

Hyam [1974] 2 All ER 41 (old law)

B. MENS REA: RECKLESSNESS

Kimel, D, ‘Inadvertant Recklessness in Criminal Law’ (2004) 120 LQR 548

Haralambous, N, ‘Retreating from Caldwell: Restoring Subjectivism’ (2003) 153 NLJ
1712

Law FLIRTED with idea if you give no thought to a risk that would have been
obvious to a reasonable person.

G [2003] 4 All ER 765 per Lord Bingham

‘A person acts recklessly … with respect to:

a) a circumstance when he is aware of a risk that it exists or will exist

b) a result when he is aware that it will occur

and it is, in the circumstances known to him, unreasonable to take that risk’

This has been called subjective (advertant) recklessness.

Cunningham [1957] 2 All ER 412

Stephenson [1979] 2 All ER 1198
Brady [2006] EWCA Crim 2413

QUESTIONS

1. How, if at all, does subjective recklessness differ from intention?

2. Should the definition of recklessness extend beyond advertant risk running? If

so, how far should it extend?

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  Moral arguments

 Linguistic arguments

 Practical arguments

QUESTIONS

1. What should be the position where D fails to think about a risk that would be
obvious to the reasonable person but was not obvious to D?

Caldwell [1981] 1 All ER 961, Lord Diplock’s direction:

A person …. is reckless if:

He does an act that creates an obvious and serious risk that property will be
destroyed or damaged and either:
a) recognised there was some risk but nevertheless went on to do it
or
b) gave no thought to the possibility of there being any such risk
Law FLIRTED with idea if you give no thought to a risk that would have been obvious
to a reasonable person.

overruled in crown v G – HAVE TO KEEP SUBJECTIVE APPROACH. U ARE

RECKLESS ON THE RISK U ARE AWARE OF NOT WHAT A REASONABLE
PERSON WOULD HAVE. REJECTED BC BLURS DISTINCTION BETWEEN
RECKLESSNESS AND NEGLIGENCE. NEGLIGENCE NOT NORMALLY ENOUGH
MUST BE WRECKLESS.

Elliott v C [1983] 2 All ER 1005

G 2003

Unfair to people who cannot recognise risks bc they aren’t a reasonable person. i.e.
low intelligence, very young, schizophrenia.

INTENTION = HIGHER DEGREE OF CULPRABILITY

2. What about where D fails to think about a risk that would have been obvious to
them if they had thought about it?

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G 2003 – only reckless if u are aware of the risk and deliberately take the risk.

3. What about cases where D mistakenly but unreasonably believes that they are not
running an obvious risk?

Avon v Shimmen (1986) 84 Cr App RT 7 – decided when Caldwell was still law.
karate expert showing off kicking really close to a glass window so he wouldn’t break
it. h/e smashes window. Caldwell approach not treated as being culpable. Didn’t
know was risk convinced in mind he would miss it. No intention to break widow.
Decided was no risk. Wasn’t bc he was reckless. Thought about it decided none and
did it. Could argue negligence.

Reid [1992] 3 All ER 673

Even if u take a small risk it could still be reckless. If u thought about it n decided no
risk then you haven’t been reckless.

C. NEGLIGENCE

Breach of a duty to take reasonable care - failing to take reasonable care.

Unreasonable inadvertence
Unreasonable mistaken belief

UNREASONABLE INADVERTENCE
Failing to give any thought to the risk that a circumstance exists (or consequence
may occur) when a reasonable person would be aware of the risk

OR

UNREASONABLE MISTAKE
Thinking about the risk that a circumstance exists (or consequence may occur) but
unreasonably concluding that it did not (would not).

Manslaughter – causing death w.out mens rea for murder but some other
culpability may be based on gross negligence. Gross means that only meer
negligence does not make u always guilty of manslaughter.

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 QUESTION

1. How does negligence differ from intention and recklessness?

2. What do you think is meant by gross negligence?

Strict liability crimes – only need actus reus. Doesn’t matter about mr. I.E
DRUNK DRIVING.

Mistake is not a defence. BUT CAN PREVENT MENS REA OF A CRIME. i.e. if u
did not know what you were doing.

D. MISTAKE OF FACT

QUESTION
If it is accepted that D made a genuine (honest) mistake about an element in the
actus reus of a crime, should they be acquitted even though the mistake was an
unreasonable one to make in the circumstances?

Or should D only be acquitted if the mistake is both honest and reasonable?

Think carefully about the fault element of various crimes before you answer this.

Can negative mens rea. No mens rea. Mistake not a separate defence. BUT if u
make mistake and its an unreasonable mistake can it be used to show lack of mens
rea?

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DPP v Morgan [1976] AC 182: The defendants, who were charged with rape,
claimed mistaken belief that the woman with whom they had sexual intercourse had
consented. OUTDATED LAW ON RAPE. AT TIME law was deliberately having sex
w/ someone without having consent. Ar: sex. Q:: are u aware that when u having sex
do u know she is not consenting/know there is a risk shes not. If u know that can u
be convicted?. V’s husband told D’s she enjoyed rp and would pretend shes not
consenting. Said an honest belief she was consenting was enough even if
unreasonable i.e believing husband. Then its enough.

DPP v B (A Minor) [2000] 1 All ER 833: The defendant, charged with inciting a child
under the age of 14 to commit an act of gross indecency, claimed a mistaken belief
that the girl was over 14. MORE RECENT EXAMPLE OF HOW IT WORKS.

MENS REA OFFENCES

Honest mistake disproves mens rea. B v DPP 2000

NEGLIGENCE OFFENCES
ONLY HONEST AND REASONABLE MISTAKES DISPROVE NEGLIGENCE. IF U
MAKE UNREASONABLE MISTAKE EVIDENCE OF UR NEGLIGENCE. IF IT’S A
REASONABLE MISTAKE u may not be negligent. Must have honestly believed to be
true.

STRICT LIABILITY
DO NOT REQUIRE PROOF OF MR.
NO PROOF OF NEGLIGENCE
EXCESS ALCOHOL IN BLOOD WHEN DRIVING – GUILITY DOESN’T MATTER.
AR IS PROVED ALL THAT IS NECESSARY.
DON’T CARE ABOUT MISTAKES

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 ELEMENTS OF A CRIME:
LACK OF DEFENCE

Insanity
Automatism
Diminished responsibility
Loss of Control
Self defence
Duress
Necessity

Mistake of fact – defences

Self-defence: Williams (1984) 78 Cr App R 276, s76 Criminal Justice and

Immigration Act 2008
Duress: Hassan [2005] UKHL 22
Loss of Control: Oatridge (1991) 94 Cr App R 367, s55 Coroners & Justice Act 2009
Statutory defences: eg s5 Criminal Damage Act 1971

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