Mens Rea Short Notes

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Mens Rea Cheat Sheet:

1) Direct Intent: purpose to cause it = purpose type intent or direct intent. 2) Oblique Intent: constructed when D does not intend result but foresees its occurrence as a certainty. Smith (1990) example: Plane Insurance bombing. 3) Itzhak Kugler (2004): states where there is only a 50% chance of explosion this should be conditional oblique intent and be a form of recklessness rather than intent. 4) MD (2004): states OI was created to help prosecution fill a gap in the rare case where a result may not be intended but D foresees the result to be a virtually certain consequence of his actions. Modern Evolution of Intent:

5) DDP v. Smith: said D foresaw and intended everything that was a natural and probable consequence of his actions. 6) Sec 8 of the Criminal Justice Act 1967 abolished this assumption. Therefore the approach became subjective, i.e. that D intended what HE foresaw not what a reasonable person would deem natural and probable. 7) Hyam v. DPP: stirred up conflict – here foresight that result is a highly probably consequence was sufficient to convict for murder. Criticism:

8) i) Artificial and unnatural to attribute foresight of a consequence to the meaning of intent. 9) ii) Distinction between OI and recklessness is merely level of foresight. OI = highly probably, R = merely probably this is far too unsatisfactory a distinction. Does OI not seem more a category of R then Intent. 10) iii) Williams (1984) states that there is greater blameworthiness in someone intending something unlawful (deliberately flouting the law) and someone who merely foresaw that thing to be a highly probable consequence to his act. Moral distinction exists. Especially in crime of murder where a mandatory life sentence is imposed. 11) Due to such criticism HoL changed approach in R v. Moloney[1], and stated that judges should avoid expounding on the meaning of intent and jury should answer this themselves. 12) Lord Bridge said that foresight of consequences, no matter how probable, was only evidence from which intent may be inferred. 13) Lord Bridge added that if judges had to give a direction it should be a. Was the result a natural consequence of D’s act b. Did D foresee it as a natural consequence.

c. He added that he level of foresight must be ‘little short of overwhelming’ or a ‘moral certainty’. 14) R v. Hancock[2]: Lord Scarman disapproved of the relationship of foresight and intention in Moloney and said that probability of the consequence occurring was to be factored in as well. If it was highly probable, then it is more likely that D foresaw it, and the likelihood of foresight was evidence for intent. In short, foresight was to be regarded as evidence of intention, not as an alternative form of it. 15) R v. Nedrick[3]: Put a minimum level of foresight required to infer intent – that ‘D was virtually certain that his act would lead to the consequence’. 16) R v. Woollin[4]: Nedrick was approved of and it was stated that a result foreseen as virtually certain will entitle a jury to find intent not merely infer. So now definition of intent would seem to include some result foreseen as virtually certain. 17) Mathews and Alleyne: also seem to suggest that where an 18year known non swimmer was thrown into a river the CoA held that the fact that drowning was a virtual certainty means the D’s must have had the intent to kill. This seems to equate virtual certainty with intent but both Woollin and Matthews don’t go so far and confirm that foresight of virtual certainty means intent. 18) R v. Woollin: The trial judge summed up using the phrases, virtual certainty and substantial risk. CoA said this blurred the lines between intent and recklessness and substantial risk should not have been used Analysis:

19) Wilson (1999): states that foresight still is only a precondition to intent and jury may choose not to infer intent. 20) Norrie...
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