Mens rea
The sorts of mental state:• Intention
• Knowledge
• Recklessness
• Negligence
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When a person is negligent?
Card Cross and Jones:A person is negligence if his conduct in relation
to risk, of which a reasonable person would
have been aware, falls below the standard
which would be expected of a reasonable
person in the light of the risk.
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Protection from Harassment Act 1997
4 Putting people in fear of violence
(1) A person whose course of conduct causes
another to fear, on at least two occasions,
that violence will be used against him is
guilty of an offence if he knows or ought to
know that his course of conduct will cause
the other so to fear on each of those
occasions.
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Road Traffic Act 1988
Careless, and inconsiderate, driving
If a person drives a mechanically propelled
vehicle on a road or other public place
without due care and attention, or without
reasonable consideration for other persons
using the road or place, he is guilty of an
offence.
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Gross negligence manslaughter:Adomako [1995] 1 AC 171. HL
1. D must have owed duty of care to V
2. There have been gross breach of duty of
care
3. The breach must have caused the death
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Public nuisance
Shorrock [1994] QB 279
• Acid House Party
Held:
• D was liable. No need to prove he had actual
knowledge of the nuisance
• but merely that he was responsible for a nuisance
which he knew or ought to have known (in the sense
that the means of knowledge were available to him)
would be the consequences of activities on his land.
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Firearms Act 1968
25 Supplying firearm to person drunk or insane
• It is an offence for a person to sell or transfer
any firearm or ammunition to, or to repair,
prove or test any firearm or ammunition for,
another person whom he knows or has
reasonable cause for believing to be drunk or
of unsound mind.
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Sexual Offences Act 2003
1 Rape
(1) A person (A) commits an offence if—
(a) he intentionally penetrates the vagina, anus or
mouth of another person (B) with his penis,
(b) B does not consent to the penetration, and
(c) A does not reasonably believe that B consents.
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Rash vs Negligence/ Recklessness
(Malaysian Law)
The sorts of mental state:• Intention
• Knowledge
• Recklessness
• Negligence
• Others!
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Rash
• Sections 279, 280, 285, 286, 287, 304A, 336,
337, 338
• Not defined in the PC
• Rash is more similar to Reckless in English Law
• 304A. Whoever causes the death of any person, by
doing any rash or negligent act not amounting to
culpable homicide, shall be punished with
imprisonment for a term which may extend to two
years or with fine or with both.
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Re Nidamarti Nagabhushanam (1872) 7
Mad HCR 119
• Culpable rashness is acting WITH the consciousness that
the mischievous and illegal consequences may follow, but
with the hope that they will not, and often with the belief
that the actor has taken sufficient precaution to prevent
their happening. The imputability arises from acting despite
the consciousness (luxuria).
• Culpable negligence is acting WITHOUT the consciousness
that the illegal and mischievous effect will follow, but in
circumstances which show that the actor has not exercised
the caution incumbent upon him, and that if he had he
would have had the consciousness. The imputability arises
from the neglect of the civic duty of circumspection….’
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Idu Beg's Case (1881) ILR 3 All 776
• Criminal rashness is hazarding a dangerous or wanton
act with the knowledge that it is so, and that it may
cause injury, but without intention to cause injury, or
knowledge that it will probably be caused. The
criminality lies in running the risk of doing such an act
with recklessness or indifference as to the
consequences.
• Criminal negligence is the gross and culpable neglect
or failure to exercise that reasonable and proper care
and precaution to guard against injury either to the
public generally or to an individual in particular, which,
having regard to all the circumstances out of which the
charge has arisen, it was the imperative duty of the
accused person to have adopted.
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Reform - Rash
A person behaves rashly if:
(a)He or she is aware that the prohibited
harm may result from his or her acts or
omissions; and
(b) Having regard to the circumstances
known to him or her it is unjustifiable to
take that risk.
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Reform - Negligence
A person is negligent if his or her conduct:
(a)Falls well short of the standard of care
that a reasonable person with the same
capacity and experience as the accused
would exercise in the same
circumstances; and
(b) Is so far below such standards that it
merits criminal punishment.
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• Correspondence of AR & MR
• Proof of a State of Mind
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The Correspondence Principle
Herring
• “…the mens rea should be the state of mind relating to
the actus reus.”
CCJ
• “Generally, the defendant must intend, or be reckless
as to, the consequence of the actus reus of the offence
in question…”
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Exceptions to Correspondence
Principle
1. Murder and section 20 Offences Against
Persons Act (OAPA) 1861
2. Transferred malice-illustrated in the
following cases
3. Dutch courage
4. Exceptions to Contemporaneity
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Murder & Section 20 of OAPA 1861
• Murder
MR (An intention unlawfully to kill/ to do grievous
bodily harm (GBH))
• Section 20 Offences Against Persons Act
(OAPA) 1861-Unlawfully and maliciously
inflicting GBH
MR (intended or was reckless as to some unlawful
physical harm)
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Transferred malice
•
•
•
•
Latimer (1886) 17 Q.B.D.359
Mitchell [1983] Q.B.741; [1983] 2 All E.R.427
Pembliton (1874) 2 L.R.C.C.R.119
AG's Ref. (No.3 of 1994) [1997] 3 All E.R. 936;
[1998] AC 245
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Dutch courage
A-G for Northern Ireland v Gallagher [1963] AC
349
– Where D fortifies himself with alcohol to gain the
courage to commit a crime.
“If a man, whilst sane and sober, forms an intention
to kill and makes preparation for it, knowing it is a
wrong thing to do, and then gets himself drunk so as
to give himself Dutch courage to do the killing, and
whilst drunk carries out his intention, he cannot rely
on this self-induced drunkenness as a defence to a
charge of murder, nor even as reducing it to
manslaughter.” Per Lord Denning
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Exception to Contemporaneity
• General rule - mens rea must exist at the
same time of the relevant act, omission or
event.
• Exception
Thabo Meli [1954] 1 All ER 373
If death is caused by one act in a series of acts, it
is irrelevant that D lacked the necessary intent
for murder when the act was done, if he had
that intent when an earlier act in the series was
done.
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Exception to Contemporaneity
See also:
Church [1966] 1 QB 59
Le Brun [1992] 1 QB 63
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Proof of state of mind
1. Proof that D intended or foresaw the
consequences of his act
2. Proof that D knew the circumstances
surrounding his act where circumstances are
part of the AR
3. Some particular problems with proof
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Proof of state of mind
1. Proof that D intended or foresaw the
consequences of his act
DPP v Smith [1961] AC 290
Section 8 Criminal Justice Act 1967
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DPP v Smith [1961] AC 290
The jury must be satisfied that:• The accused must, as a reasonable man,
have contemplated that grievous bodily harm was likely to result
to that officer;
• That such harm did happen;
• The officer died in consequence; then the accused is guilty of
capital murder.
Basis – presumption of law that a man intends the natural and
probable consequences of his acts
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DPP v Morgan [1976] AC 182
Facts: Common law offence of rape
The judge directed the jury that:• if they came to the conclusion that Mrs Morgan had not
consented to the intercourse in question
• but that the Ds believed or may have believed that she was
consenting to it,
• they must nevertheless find the Ds guilty of rape if they were
satisfied that they had no reasonable grounds for so believing.
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DPP v Morgan [1976] AC 182 (HL)
Held – Judge’s direction was wrong
• “Accordingly, if an accused in fact believed
that the woman had consented, whether or
not that belief was based on reasonable
grounds, he could not be found guilty of rape”
• Is this the law now???
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Problems with proof
Where there is AR but is there MR?
1. Accident
2. Relevant mistakes
3. Irrelevant mistakes
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Accident
• Definition?
• CCJ - Did not intend to produce the prohibited
consequence
• Horton v Gwynne [1921] 2 KB 661
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Accident
• Did not intend the prohibited consequence
• If it is an offence where liability is based on
recklessness and/or negligence? D will be
liable even if there is an accident
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Relevant mistakes
R v Smith [1974] QB 354
• Facts - causing criminal damage (s1(1) CDA 1971)
Held:• no offence is committed under this section if a person
destroys or causes damage to property belonging to another
through mistaken belief that the property is his own,
• and provided that the belief is honestly held it is irrelevant to
consider whether or not it is a justifiable belief.
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Relevant mistakes
R v Kimber [1983] 3 All ER 84
• Indecent assault on a mental patient
• mens rea - the intent to use violence against her without her
consent.
• Trial judge directed the jury:'It is no defence that the defendant thought or believed Betty
was consenting. The question is: was she consenting? It does
not matter what he thought or believed.'
What’s wrong??
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Court of Appeal held:-
– mens rea of the offence was the intent to use violence
against her without her consent
– it was a good defence to show that he had honestly
believed that the victim had consented to his actions.
– On the facts, the trial judge's direction had been
wrong
– But, on the facts, a reasonable jury properly instructed
would still have found that the appellant had not
honestly believed that the woman had consented.
– There has been no miscarriage of justice in this case.
The appeal is dismissed. D was convicted
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