Você está na página 1de 7

Motive

malevolent purposes benevolent purposes

Mens Rea
Intention Recklessness
direct intent oblique intent (indirect intent) basic intent specific intent ulterior intent

Definition: Mens Rea: [Translate: guilty mind] Motive: The purpose behind a course of action. Benevolent purposes: Purposes that are for the public good but not necessarily charitable. Malevolent purposes: Purpose that wishing evil or harm to another or others. Intention: The state of mind of one who aims to bring about a particular consequence. Direct intent: The straightforward intention as the conduct achieves the desired result. Oblique intent (Indirect intent): The defendant intended a result if he knew that it was high probable result of his act, but, it was not his original purpose or object to cause that result. basic intent: Any criminal offence for which recklessness or negligence will suffice to establish the mens rea element may be considered an offence of basic intent. Specific intent: Any offence for which only intention will suffice as the mens rea element may be considered an offence of specific intent. ulterior intent: An element of the mens rea for certain crimes that requires an intention to bring about a consequence beyond the criminal act ( actus reus) itself. Recklessness: A form of mens rea that amounts to less than intention but more than negligence. The distinction: Intention is often contrasted with recklessness and should not be confused with motive. Intention is a matter for the jury to decide (Chandler v DPP [1964]) but evidence of motive can help the jury arrive at its decision (R v Williams [1986]). Intention: 1. Direct Intent o Gillick v W. Norfolk & Wisbech Area Health Authority [1986] AC 112 Some of the judges were of the opinion that a doctor, who knew that his presciption of contraceptive to a girl under the age of 16 would encourage others to have sexual intercourse with her, would not be guilty of abetting the offence, because his intention was to protect the girl and not to encourage unlawful sexual intercourse with her. o R v Steane Defendant, who during the second world war, gave broadcasts which would assist the enemy in order to save his family and himself from the horrors of the concentration camp. The court held that the defendant did not have intention to assist enemy. 2. Oblique Intent o The courts have struggled to find an appropriate test to apply in cases of oblique intent. In particular the questions which have vexed the courts are:

Should the test be subjective or objective? What degree of probability is required before it can be said that the defendant intended the result? Whether the degree of probability should be equal to intention or whether it is evidence of intention from which the jury may infer intention? Subjective or objective test A subjective test is concerned with the defendant's perspective. In relation to oblique intent it would be concerned only with whether the defendant did foresee the degree of probability of the result occurring from his actions. An objective test looks at the perspective of a reasonable person. Ie Would a reasonable person have foreseen the degree of probability of the result occurring from the defendant's actions. It is arguable, that since intention requires the highest degree of fault, it should be solely concerned with the defendant's perception. In addition, intention seems to be a concept which naturally requires a subjective inquiry. It seems somehow wrong to decide what the defendant's intention was by reference to what a reasonable person would have contemplated. However, originally an objective test was applied to decide oblique intent: DPP v Smith [1961] AC 290, Case summary: A policeman tried to stop the defendant from driving off with stolen goods by jumping on to the bonnet of the car. The defendant drove off at speed and zigzagged in order to get the police office off the car. The defendant argued he did not intend to harm the policeman. The policeman was knocked onto the path of an oncoming car and killed. The defendant was convicted of murder. The trial judge directed the jury as follows: If you are satisfied that ... he must as a reasonable man have contemplated that grievous bodily harm was likely to result to that officer ... and that such harm did happen and the officer died in consequence, then the accused is guilty of capital murder. ... On the other hand, if you are not satisfied that he intended to inflict grievous bodily harm upon the officer - in other words, if you think he could not as a reasonable man have contemplated that grievous bodily harm would result to the officer in consequence of his actions - well, then, the verdict would be guilty of manslaughter. The jury convicted of murder and the defendant appealed on the grounds that this was a mis-direction and that a subjective test should apply. The Court of Appeal quashed his conviction for murder and substituted a manslaughter conviction applying a subjective test. The prosecution appealed to the House of Lords who re-instated the murder conviction and held that there was no mis-direction thereby holding an objective test was applicable. This position was reversed by statute by: section 8 Criminal Justice Act 1967

Section 8 Proof of criminal intent A court or jury, in determining whether a person has committed an offence, (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 from the evidence as appear proper in the circumstances. The effect of s.8 was considered in: R v Hyam [1975] AC 55, Case summary: The appellant had been having a relationship with a Mr Jones. Mr. Jones then took up with another woman Mrs Booth and they were soon to be married. On hearing this news, the appellant drove to Mrs Booth's house at 2.00am and poured petrol through the letter box and ignited it with matches and newspaper. She then drove home and did not alert anyone of the incident. Mrs Booth and her young son managed to escape the fire but her two daughters were killed. The trial judge directed the jury: "If you are satisfied that when the accused set fire to the house she knew that it was highly probable that this would cause (death or) serious bodily harm then the prosecution will have established the necessary intent." The jury convicted of murder. The conviction was upheld by the Court of Appeal. The appellant appealed to the House of Lords on the grounds that knowledge that a certain consequence was a highly probable consequence does not establish an intent to produce that result but is only evidence from which a jury may infer intent. Held:3:2 decision The appellant's conviction for murder was upheld as there was no misdirection. Lord Hailsham's dissent: I do not believe that knowledge or any degree of foresight is enough. Knowledge or foresight is at the best material which entitles or compels a jury to draw the necessary inference as to intention. The House of Lords accepted a subjective test was applicable. However, the majority decision of the House of Lords was out of line with s.8 in that it was accepted that foresight of consequences being highly probable was sufficient to establish intent.(Lord Hailsham dissenting) a point which was taken and rectified in R v Moloney [1985] AC 905. However, R v Moloney left a problem with regards to the degree of probability required Case summary. This was considered in:

R v Hancock & Shankland [1985] 3 WLR 1014, Case summary: The appellants were convicted of murder for the death of a taxi driver. The appellants were miners on strike. They wanted to block the road to the mine to prevent works breaking the picket line. They had dropped lumps of concrete and a post from a bridge on to the carriageway below as the convoy of workers approached. The taxi was struck by two lumps of concrete resulting in death of the driver. The prosecution contended that the appellants conduct meant that they intended nothing less than serious bodily harm. The appellants argued they only intended to block the road and no harm was intended to result from the actions. The jury were directed in accordance with the Maloney guidelines of Lord Bridge's test on oblique intent : "First, was death or really serious injury in a murder case (or whatever relevant consequence must be proved to have been intended in any other case) a natural consequence of the defendant's voluntary act? Secondly, did the defendant foresee that consequence as being a natural consequence of his act? The jury should then be told that if they answer yes to both questions it is a proper inference for them to draw that he intended that consequence." The jury asked further guidance on the issue of intent with regards to foresight and the judge repeated the direction given. The jury convicted of murder. The Court of Appeal quashed the conviction and certified a point of law to the House of Lords as to whether the Maloney direction was misleading. Held: The Maloney direction was misleading as it did not refer to the degree of probability required. The appropriate direction should include a reference to the degree of probability and in particular an explanation that the greater the probability of a consequence the more likely it is that the consequence was foreseen and that if that consequence was foreseen the greater the probability is that that consequence was also intended. The degree of probability was still causing problems and the cases of R v Maloney and R v Hancock and Shankland were reviewed by the Court of Appeal in R v Nedrick which reformulated the test. R v Nedrick [1986] 1 WLR 1025, Case summary: The appellant held a grudge against Viola Foreshaw. He went to her house in the middle of the night poured paraffin through her letter box and set light to it. A child died in the fire. The trial was held before the judgement was delivered in Maloney. The judge directed the jury as follows: "If when the accused performed the act of setting fire to the house, he knew that it was highly probable that the act would result in serious bodily injury to somebody inside the house, even though he did not desire it - desire to bring that result about - he is guilty or murder." The jury convicted of murder and the defendant appealed on the grounds of a mis-direction.

Held:

There was a clear misdirection. The Court of Appeal reviewed the cases of Maloney and Hancock & Shankland and formulated a new direction from the two decisions. Lord Lane CJ: "the jury should be directed that they are not entitled to infer the necessary intention, unless they feel sure that death or serious bodily harm was a virtual certainty (barring some unforeseen intervention) as a result of the defendant's actions and that the defendant appreciated that such was the case." o The authority of this test was questioned in Woollin. The House of Lords largely approved of the test with some minor modifications setting the current test of oblique intent: R v Woollin [1999] AC 82, Case summary: The appellant threw his 3 month old baby son on to a hard surface. The baby suffered a fractured skull and died. The trial judge directed the jury that if they were satisfied the defendant "must have realised and appreciated when he threw that child that there was a substantial risk that he would cause serious injury to it, then it would be open to you to find that he intended to cause injury to the child and you should convict him of murder." The jury convicted of murder and also rejected the defence of provocation. The defendant appealed on the grounds that in referring to 'substantial risk' the judge had widen the definition of murder and should have referred to virtual certainty in accordance with Nedrick guidance. The Court of Appeal rejected the appeal holding that there was no absolute obligation to refer to virtual certainty. House of Lords held: Murder conviction was substituted with manslaughter conviction. There was a material misdirection which expanded the mens rea of murder and therefore the murder conviction was unsafe. The House of Lords substantially agreed with the Nedrick guidelines with a minor modification. The appropriate direction is or the current test of oblique intent: "Where the charge is murder and in the rare cases where the simple direction is not enough, the jury should be directed that they are not entitled to infer the necessary intention, unless they feel sure that death or serious bodily harm was a virtual certainty (barring some unforeseen intervention) as a result of the defendant's actions and that the defendant appreciated that such was the case. The decision is one for the jury to be reached upon a consideration of all the evidence." 3. Basic Intent o the example of this offence is: section 20, section 47, section 23 of the offences against persons act 1861

section 13 theft act 1968 rape 4. Specific Intent o The mens rea for this offence is: intention to kill; or intention to cause grievous bodily harm. 5. Ulterior Intent o The ulterior mens rea is the intention to commit one of the three offences specified in: intention of stealing causing grievous bodily harm or causing criminal damage