Lecture 5
Lecture 5
The purpose of the fault element is linked to the concept of desert. Really important that we
punish those who show mens rea and can comply with the law. If we cannot see a risk, we
should not be punished.
• “The State society needs a moral license to punish, and this presupposes that
those charged with offences have had the capacity and fair opportunity to
comply with the law.” HLA Hart
Intention
- E.g murder and manslaughter
- Hancock and Shankland – it was never the intention to kill someone (which is needed
for murder). All they wanted to do was keep people from breaking the picket line.
Question revolved around foreseeability.
- 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.
Chain of evidence involved. Not convicted of murder.
Knowledge or belief
- E.g Handling
- Reader – Reader and 2 others had stolen some jewellery and precious stones found
in their possession. Court couldn’t prove they had stolen them. Even if they could
prove the items were stolen, there Is no proof of knowledge that they are stolen.
Dishonesty
- E.g Theft
- Feely – Was the taking of the money dishonest. He had taken money out of the till of
his employer but left a note indicating he had taken money out of the till. Question
was whether that was dishonest. He was not convicted and it was held not to be
dishonest under the ordinary standard of dishonesty.
Objective/Subjective Fault
No Mens Rea
K[2001] UKHL 41. – the moment you assault a minor, there is no way you can talk yourself
out of it.
Objective Fault
• is assessed by reference to the standards of ordinary people and does not
take into account the defendant’s own state of mind, ie whether he
intended/foresaw, knew etc
• It involves negligence, carelessness etc.
• Eg Careless driving, gross negligence manslaughter
Oblique intention: Where it is a virtual certainty and D has foreseen it as virtually certain
and the jury find intention
It is a person’s intention that counts in the criminal law, not his/her motive
Compare R v Cox and R v Adams
Adams was a doctor who dealt with elderly ladies and took care of them, usually mentioned
in their will. He claimed to be giving them pain relief when they were terminally ill or in pain
and they would eventually fall asleep and die. Question was whether he murdered those
women. 2 intentions found: to kill a terminally ill patient (murder as euthanasia isn’t
allowed), other intention is to provide pain relief to make their situation more bearable. A
good and bad intention occurred – the good intention prevailed.
In Cox, he dealt with terminally ill patients, injecting them with potassium chloride to end
their painful life. He was convicted of murder.
2. Indirect intention – if the defendant intended the result if it is shown that D thought
that the result was a virtually certain consequence of his action
- The intention of knowledge.
The type of intention requires foresight of (virtual certainty)
- Foresight of probability or high probability is not enough
- Hyam v DPP
- Moloney – overturned that foresight for a high probability is not enough, there needs
to be more than that.
So a jury is entitled to find that A intended a consequence which his action brought
about if:
1. It was his objective/aim/desire
2. Although it was not his objective, it was
- For all intents and purposes inevitable
- A knew this
Is foresight of certainty the same as intention or simply evidence of intention where
it is impossible to prove direct intention?
Lynch says the former.
R v MATTHEWS AND ALLEYNE [2003] EWCA Crim 192 (CA) said the latter
• Summary
1. In 99% of cases the jury should be asked simply ‘did A intend the consequence or
not?’
2. In 1% of cases, eg Woollin, they will need further guidance. They should be told that
they can still find the consequence intended, although it was not the purpose of A’s
action. if they think it was virtually certain to occur as a result of A’s action and A
knew this. Foresight to a lesser degree of probability than certainty is not enough.
This may be recklessness but not intention.
3. The jury are left with the final decision. They are entitled, not bound, to find a
consequence intended if it was foreseen as certain.
There is direct intention, as Adam wants to kill his wife. 2 nd intent is to alleviate pain.
We have a case of murder despite the fact that he has good intentions. He directly
fired and killed her so it is not an alleviation of pain.
• Recklessness: Foreseeing a risk (whether that is a small chance or one that is very
likely).
• Intention
- Purpose and means to an end are clearly different: not about risk at all.
- Foreseeing a virtual certainty is about foreseeing.
1. Subjective form
Negligence occurs where a person ‘fails to exercise such care, skill or foresight as a
reasonable man in his situation would exercise’.
Negligence v Recklessness:
Brady [2006] EWCA Crim 2413 – refer to this case, very important!!!
Objective element: Must have been unreasonable to have run that risk