Mens Rea & Strict Liability

• what is mens rea?

  mens rea refers to the "guilty mind" - basically the mental element of an offence
• what is the purpose of mens rea?

  mens rea distinguishes between an innocent mistake & a deliberate criminal act
• importance of MR case example - R v Clarke (1972)


  A woman transferred items from her shopping basket into her own bag without paying

  Later showed that due to depression she was suffering from absent mindedness and didn't intend to steal

  In this case, the court found that because she lacked the mens rea for theft she couldn't be criminally liable
• what are the different "levels" of mens rea?

  different levels of mens rea relate to different degrees of blame - more deliberate actions carry greater responsibility

  these levels impact the type of offence a defendant may be charged with & sentencing

  e.g Murder (intent to kill) has a higher sentence than manslaughter (recklessness or negligence) due to its higher mens rea
• what are the 3 levels of mens rea?

  there is intention (direct or oblique) - aka specific intention

  there is subjective recklessness

  and there is negligence
• what is direct intent?

  direct intent is when it is D's aim or purpose to bring about a particular consequence
• what is oblique intent?

  oblique intent is when the consequence of D's act or omission was virtually certain and D knows it
• direct intent case example - R v Mohan (1976)


  D accelerated at an officer who was signalling him to stop - failed but his actions demonstrated direct intent

  In this case, D's intention was to cause harm to the officer by driving towards him
• how is oblique intent decided?

  oblique intent is decided using the rules of foresight of consequences

  basically, if D foresaw that he would also cause the consequences then he may be found guilty
• oblique intent case example - R v Woolin (2000)


  D threw his infant son towards a hard surface in frustration - leading to the child's death

  D claimed he didn't intend to kill

  It was held that it was manslaughter because there was no certainty of death but rather a risk

  Oblique intent occurs when the consequence was not D's primary aim but was virtually certain and knows it
• what is (subjective) recklessness?

  subjective recklessness is a lesser form of mens rea compared to intent

  it is where D must have realised the risk but proceeded anyway
• recklessness case example - R v Cunningham (1957)

  D pulled a gas meter from the wall to steal money inside

  Unknowingly fractured a gas pipe causing gas to leak into neighbouring house affecting a woman who lived there

  D was charged with "maliciously adminstering a noxious thing"

  This case helped clear up the definition of "maliciously" - held that "maliciously" means either "intentionally" or with subjective recklessness as to the risk of harm

  D was found not guilty because he didn't intend it and he wasn't aware of the risk so therefore he wasn't subjectively reckless either
• what is negligence?

  negligence is when a person fails in their duty of care by acting below the standard expected of a "reasonable person"
• how does negligence apply to criminal law?

  the primary offence invovling negligence in criminal law is gross negligence manslaughter - this is where the defendant's lack of care is so severe it results in death
• negligence case example - R v Adomako (1994)


  D, an anaesthetist, failed to notice that an oxygen tube had disconnected during an operation - resulting in patient's death

  Adomako convicted of manslaughter - court determined that his failure to monitor oxygen supply fell far below the standard of care expected of a competant anaesthetist

  This severe breach of duty was deemed "gross negligence" - making him criminally liable for the patient's death
• what are strict liability offences?

  Strict liability offences are offences that do not require mens rea

  Simply committing the actus reus is enough to be found guilty regardless of intent or awareness
• what is the purpose of strict liability?

  Strict liablity is often applied where public safety, health or welfare is a priority

  These offences encourage individuals & businesses to take extra precautions to prevent harm as they can be held responsible for just committing the prohibited act
• what are some examples of strict liability?

  Some examples are regulatory offences such as: selling alcohol to minors or food safety violations

  Even if a person or business was unaware of breaking the law, they can still be held liable
• Strict liability case - Gammon v Attorney General of Hong Kong


  Construction company (D) made changes to building plans leading to a structural collapse

  D argued that they didn't know these changes would violate building regulations

  The court set out principles to decide when strict liability applies

  Court held that strict liability applied because the offence related to public safety
• what were the 3 principles established in Gammon v Attorney General of Hong Kong?

  The 3 principles established when strict liability applies, stating that mens rea is generally needed UNLESS:

  1. the offence is minor & regulatory (not a serious crime)
  2. the law clearly states that no intent is required
  3. the offence aims to protect public safety, health or welfare where strict liability can help ensure compliance
• what presumption is made for all offences in regards to strict liability & mens rea?

  For every offence there is a presumption that MR is required - the courts will always start with this presumption

  But, if they decide that the offence doesn't require MR for at least part of the AR, then the offence is one of strict liability
• what happens if an honest mistake is made (strict liability)

  there is no defence of mistake, so D cannot be acquitted (free of charge) when they have made a mistake - case example: (Cundy v Le Cocq)
• strict liability & mistake case example: Cundy v Le Cocq


  D charged with selling intoxicating liquor to a drunk person

  D & employees hadn't noticed that the person was drunk & there were no apparent indications of intoxication

  Magistrates held that the offence was complete on proof that a sale had taken place & that the person was drunk (no MR required) - D was convicted

  D appealed but his conviction was upheld
• what is the presumption of MR

  the presumption of MR is that the courts will start with a presumption that MR is required for serious criminal offences

  UNLESS, parliament has made it clear that this is not the case
• presumption of MR case example: Sweet v Parsley (NOT A STRICT LIABILITY CASE)


  D rented a farmhouse and let it out to students

  Police found cannabis at the farmhouse

  D charged with "being concerned in the management of premises used for the purpose of smoking cannabis resin"

  The offence was silent as to MR & D didn't know that cannabis was being smoked there

  D was therefore found not guilty as the court presumed the offence requried MR
• justifications for strict liability

  • easier to enforce as there is no need for the prosecution to prove MR
  • penalties are often minor
  • the fact that D is not blameworthy is taken into account in sentencing
  • they help to protect society by promoting greater care over matters of public safety
• arguments against strict liability

  • makes people who are not blameworthy guilty, which is contrary to most aspects of criminal law

  This is so, even if they have taken all possible care or have made a mistake
• what is transferred malice?

  transferred malice is a principle where D can be guilty if they intended to commit a similiar crime but against a different V

  essentially, if D intended to commit a crime against A but instead did it against B, D will be equally as guilty
• transferred malice case example: R v Latimer (1886)


  D aimed a blow with a belt at a man in a pub because that man had attacked him

  Belt bounced off the man and struck a woman in the face

  D was guilty of assault despite not intending to harm her

  This is because the mens rea he had to cause harm to the man was transferred to the woman
• where doesn't transferred malice apply?

  transferred doesn't apply where the mens rea is for a completely different type of offence - then D may not be guilty
• another transferred malice case example: R v Mitchell (1983)


  D tried to push into a queue at a post office but an old man told him off

  D punched the man causing him to stagger backwards into an old woman (V)

  V was knocked over and later died of her injuries

  D was convicted of UAM because the mens rea D had to cause harm to the man was transferred to the woman
• Transferred malice not applicable case example: R v Pembliton (1884)


  D was ejected from a pub & became engaged in a street fight

  Escalated until D threw a large stone at his opponents

  He missed & hit a window instead

  D was prosecuted under s.51 of the malicious damage act (1861)

  D convicted even though the jury acknowledged he had no intention of breaking the window

  On appeal court held D's MR for an offence against the person couldn't be transferred to a propery offence - because they are entirely different

  His conviction was quashed
• what does "contemporaneity" mean?

  contemporaneity means occuring at the same time
• what is coincidence of AR & MR/the contemporaneity rule
?


  Coincidence of AR & MR: for an offence to take place, the actus reus and mens rea must be present at the same time

  Judges have shown to be flexible with it in the interest of justice-Courts have modified it so that a series of of linked acts or omissions can be treated as a single continuing event

  Sometimes the AR occurs first & continues until D develops the MR so they are present at the same time (Fagan v MPC)& Other times, D has the MR from the outset & this continues until the series of acts & consequences finish (Thabo-Meli v R)
• coincidence of AR & MR case example: Fagan v Metropolitan Police Commissioner (MPC) (1968)


  Fagan (D) was told by a police officer (V) to move his car

  D did so but reversed his car onto V's foot

  V told D to move his car off his foot

  D swore at V & refused to move his car, turning off the engine

  D was convicted of assaulting a police officer in the execution of his duty

  Appeal: D's crime wasn't driving onto V's foot, but having driven onto the foot of V he decided not to cease the act

  Therefore he established a continual act of battery

  So AR & MR were present & D's conv was upheld
• coincidence of AR & MR case example: (Thabo-Meli v R)


  D's attacked a man V & believed that they had killed him

  They then pushed his body over a low cliff

  In fact, V had survived the attack but died of exposure when unconscious at the foot of the cliff

  Held: D's were guilty of murder as the act of beating him & throwing him off the cliff was one continuing act