Criminal law lectures: Mens Rea

Crime =actus rea + mens rea + no defence.
Any crime, except the quasi-crimes of strict liability, requires a culpable mental element - the mens rea.
-Crimes can require intention, recklessness, negligence, or (exceptionally) be of strict liability and require no mens rea.
-The defendants mistake can mean they have no mens rea.

Two defendants can perform the same actions, create the same actus reus, but only onw will be liable. The courts have to try to reconstruct the mental state of each defendant.
A person can be victim of an actus reus, but if the defendant lacks mens rea, there has been no crime. So you can be wounded without anyone committing the crime of wounding.

desire ------> Intention <----- foresight
[]
motive

Most serious statues require intention. You can intend something without desiring it.
Direct intent à you intended to do something.
Indirect intent à you don’t want the means, but you do it to achieve your ultimate end.


-A reasonable person (no insane) must intend the reasonable consequences of their actions DPP v Smith. Objective question about what should have going on in your head.
But the Criminal Law Act 1967 s.8 emphasised subjectivity. Where liability turns on whether he inended or foresaw something you should look at all the evidence. So did that mean that you intended what you actually forsaw? Hyam v DPP cf. Moloney. Certain consequences/ highly probably consequence. If you knew it was highly probable that your actions would kill, you are guilty or murder.
-Relationship remains complex. Hancock and Shankland, Nedrick, Walker and Hayles, Woolin, Matthews, R v MD.
Not enough to knew that harm will follow from your actions. You must forsee it as a moral certainty.
Virtual Certainty from subjective defendant’s perspective. How likely did the defendant think it was?

A mistake as to law will not affect liability. Bailey Ignorance of the law is no defence.
A mistake as to an issue, where that mistake is irrelevant, will not affect liability. Mistke as to the law or its application to you will not affect liability.
-A mistake so that the defendant did not have the relevant mens rea will result in no liability – even if the mistake is unreasonable. Tolson , DPP v Morgan à A person dressed up as a tree is shot with an air rifle, person dies. If you generally believe that person was a tree, you are not guilty of murder.
When the defendant makes a mistake, assess the liability as if the mistake was true.
Transferred Intention
An intention to injure one person will ground criminal liability if another is harmed. Latimer. If you take a punch at one person and they duck and you hit someone else, you are liable.
-But intention will not transfer across offences. Pembliton, McBride v Turnock.
Man got into fight outside a pub, threw a stone and it broke a window. Not guilty of damage to property because intention will not transfer across offences.
-So an intention to criminal damage is not an intention to kill, even if you mean to shoot a car and hit a person instead.
Defences will also transferà your self-defence claim will also transfer.
A mistake must drop down to the level of an excuse.

Justified = lawful + righteous
Excuse = you do not say what you did is right, but you should be excused punishment.

Recklessness
Balances social utility of desired result vs. social disutility of undesired result.
Social utility includes both benefit, and probability of benefit.
Social disutility includes both disbenefit and probability of disbenefit.
Consider ambulance driving vs. road racing.
Recklessness as unjustified risk taking. Was this an unjustified risk?

Cunningham Recklessness
Subjective risk taking. Along with intent, can form “malice”. Cunningham.
You see a risk and you do it anyway.
Statute term for malicious intention + recklessness
Not the state of mind of “not caring less”.
Not evil or inchoate culpability.
-Thus, not recklessness if no foresight of the risk.
Even if unreasonable not to have foreseen the risk. Takes into account incapacity to foresee risk. Stephenson (case of the schizophrenic/ reduced ability to see the risk.

Caldwell definition of Recklessness. If you saw a risk and took it anyway you were reckless. If you saw a risk and took it anyway you were reckless. Also if a reasonable person created an obvious risk and did nothing about it, you would be guilty of recklessness

Abolished, at least for major offences? R. v R and G.
R and G were two boys who set fire to a wheelie bin burnt down a whole supermarket. Refused version of Caldwell à given the boys reduced powers.
Lords rejected Caldwell entirely. Caldwell was wrong, produced injustice, criticised by academics à use Cunningham

Summary
Most crimes require some form of mens rea – a culpable mental state of the defendant. A mistake can be evidence that the defendant lacked this state.
Intention is not motive, desire, or foresight, but can be evidenced by all three.
Recklessness is conscious risk taking.