Cases - mens rea

B (a minor) v DPP [2000]

[Mens rea- general defences – mistake – need for subjective test]

D aged 15 years incited a girl under 14 to commit an act of gross indecency. He sat next to a girl aged 13 years on a bus in Harrow and asked her several times for a ‘shiner’ (oral sex). He believed the girl to be over 14.

Held: A defence of honest but mistaken belief had been raised; the courts placed new emphasis on the subjective nature of the mental element. As a matter of principle, this "honest belief" approach was preferable.

By definition, the mental element in a crime was concerned with a subjective state of mind.

“Is there here a compellingly clear implication that Parliament should be taken to have intended that the ordinary common law requirement of a mental element should be excluded in respect of the age ingredient of the new offence? Thus far, having regard especially to the breadth of the offence and the gravity of the stigma and penal consequences which a conviction brings, I see no sufficient ground for so concluding.”

Not guilty

The law will never require that the mistake have been reasonable, provided it was honestly held and Tolson is now bad law.

Belfon, R v [1976] CA

[Mens rea - assault - specific intent needed for Sec 18]

D, and an accomplice wounded victims with intent. D attacked those who came to help a girl he had pushed to the ground. He slashed one man with a razor, causing severe wounds to his head and chest.

Held: He had certainly foreseen the risk of such consequences, but it had not been proved that he had the specific intent required for the more serious offence.

Not Guilty of s.18 Guilty 20 unlawful wounding

Caldwell, R v (1982) HL

Overruled by R v G and another (2003) HL

[Criminal damage - recklessness - the test for Criminal Damage is always objective recklessness - intoxication no defence]
D set fire by night to a residential hotel where he had been employed. He bore a grudge against the proprietor.
According to his evidence he was so drunk at the time that it did not occur to him that there might be people there whose lives might be endangered.
Held: Recklessness in the context of Criminal Damage does not require subjective appreciation of the risk of causing damage, but is also satisfied by a failure to consider an obvious risk.

The risk need only be obvious in the sense that it would have been obvious to the reasonable man, not to the accused if he or she had stopped to think Elliott v C [1983] nor to a person of the age of the accused or sharing the accused’s characteristics R (Stephen Malcolm) (1984); R v Miller [1983]. These cases were confirmed and followed in R v Coles [1995].

Lord Diplock:
It is unnecessary to classify the offence as one of specific or basic intent, since, as far as recklessness is concerned, evidence of intoxication is logically irrelevant and therefore no defence anyway.

Crossman, R v (1986) CA

[Mens rea - reckless - driving knowing load is unsafe is reckless]

D was the driver of an articulated lorry. A piece of machinery weighing between three and five tons was loaded onto the trailer of D's lorry.

D had been advised to secure the machine with chains, but did not. The machine fell off and killed a pedestrian.

Held: D was driving with the knowledge that by doing so he was putting other road users at risk of serious injury or death. In the circumstances D was driving recklessly.

Guilty

Cunningham, R v [1957] CA

R v Cunningham [1957] CA

^[Mens rea - subjective recklessness - used in most crimes - malice means "reckless or intention"]
D went into the cellar of an house that was converted into two. He tore the gas meter from the wall and from its pipes and stole money from it. He did not turn off the gas at a stop tap nearby and gas escaped, seeped through the dividing wall of the cellar and partially asphyxiated his prospective mother-in-law, who was asleep in her bedroom.

D was charged, with having unlawfully and maliciously caused W to take a certain noxious thing, coal gas, so as thereby to endanger her life.

Held: The correct test is whether D foresaw that the removal of the gas meter might cause injury to someone but nevertheless removed it.
This is so, even if D did not intend the injury to V. [Cunningham Recklessness]

The word "maliciously" in a statutory crime means foresight of consequence, it does not mean "wicked".

It can be either an actual intention to do the particular kind of harm, or
recklessness whether such harm should occur or not.

It does not it require, any ill-will towards the person injured.

Not guilty (on misdirection)

Cunningham, R v (1981) HL

[Mens rea of murder - intention to commit homicide or grievous bodily harm]

D attacked V in a pub, hitting him repeatedly with a chair, which resulted in Vs. death.

Held: The word "maliciously" meant foresight of the consequence. D must have foreseen a risk and recklessly gone ahead and taken it.

Intention to cause grievous bodily harm, but not to cause death, is sufficient to establish the mens rea for murder.

Lord Hailsham LC:

"malice aforethought has never been limited to the intention to kill or to endanger life".

Lord Edmund-Davies (dissenting):

"I find it strange passing that a person can be convicted of murder if death results from, say, his intentional breaking of another's arm, it no doubt constituting "really serious harm. But I recognise the force of the contrary view that the outcome of intentionally inflicting serious harm can be so unpredictable that anyone prepared to act so wickedly has little ground for complaint if, where death results, he is convicted and punished as severely as one who intended to kill."

Guilty

Also here

Data Protection Registrar v Amnesty International [1995] DC

[No transcript available]

This cases clarified that the “recklessness” applicable to offences of misusing data under the Data Protection legislation was Caldwell Recklessness.

Rose LJ: To establish recklessness, the prosecution “must prove first that there is something in the circumstances that would have drawn the attention of an ordinary, prudent individual to the possibility that this act was capable of causing the kind of mischief that the Act intended to prevent and that the risk of those mischiefs occurring was not so slight that the ordinary, prudent individual would feel justified in regarding them as negligible.

Secondly the prosecution must prove that before doing the act, the defendant either failed to give any thought to the possibility of their being such a risk, or, having recognised that there was such a risk, he nevertheless went on to do it.

Held: Only some regulatory offences, such as the requirements of the Data Protection Act require Caldwell Recklessness

Dolbey, W (A minor) v [1983] QBD

[Mens rea - assault - Sec 20 - recklessness and malice (intention) are not the same]
D shot V with an air rifle believing that it had run out of pellets. Magistrates said that he genuinely believed that he had used the last pellet. He ignored the risk that it might be loaded and so D was reckless.

Held: In Caldwell, malice and recklessness were clearly distinguished. To prove malice, prosecution must show D actually foresaw that a particular kind of harm might be done to his victim; in this case he had not.

Not guilty

DPP v A [2000] DC

[Mens rea - s20 GBH - level of foresight required]

A and S started a game in which they agreed to shoot at each other below the knee with air pistols. Both boys were wearing cricket pads for protection. A had suggested wearing crash-helmets, but none could be found. A fired a shot which hit S in the eye.

Held: ‘Maliciously’ for the purposes of s 20 of the Offences Against the Person Act 1861 meant actual intention or recklessness as to whether a particular type of harm "might" be done, thus it would be sufficient that only slight harm had been foreseen.

On the facts of the instant case, the justices might well have been misled by the advice given by their clerk. The matter would therefore be remitted to a fresh bench of justices for reconsideration.

R v Parmenter [1991] applied.

Elliot v C (1983) QBD

subjective/objective recklessness, overruled by R v G (2003)

A fourteen-year-old girl who was in a remedial class at school set fire to shed

Farrell, R v [1989] CA

[Assault – Sec 20 - objective recklessness (Caldwell) not enough]
D wounded V with a crossbow but said it was an accident.

Held: Objective recklessness was not enough to support a s.20 conviction. Even a clear intention to frighten V (which is sufficient for common assault) would not be enough for unlawful wounding unless D had given some thought to the possible consequences.

Not Guilty

Flack v Hunt (1979) QBD

[Assault - malicious wounding – intention no risk seen]
D a gamekeeper shot M by firing into bushes where M was hiding only intending to frighten him. D suspected M was poaching in his woods.

Held: D had not foreseen the risk of harm; on the contrary, he had considered the matter and decided there was no risk.

Not Guilty

Forbes (Giles), R v (2000) CA

[Mens rea – pornography - video recordings]

D imported two pornographic videos. Although he believed the videos were banned in the UK, he did not know that they contained indecent photographs of children under the age of 16.

Held: It was not necessary for the prosecution to prove that F knew the nature of the material only that he knew it was indecent.

Guilty

Grimshaw, R v (1984) CA

[Mens rea - assault s20 GBH - need to foresee some harm not necessarily the harm caused]

D was in a pub when someone insulted her boyfriend. She pushed the glass he was holding into his face.

Held: She would only have had the mens rea if she had at least foreseen that he might suffer some harm. s.20 was satisfied only by proof of what D actually foresaw (i.e. subjective recklessness).

The trial judge directed the jury to consider whether she "should have foreseen" the risk of harm, instead of directing the jury to consider whether she did foresee the risk of some harm, albeit only minor harm.

Not Guilty of s20 GBH

In Savage and Parmenter it was observed that in R v Mowatt the words " ... should have foreseen ... " were intended to bear the same meaning as "did foresee" or simply "foresaw".

"should have" realised that what she did would lead to injury. (The Court of Appeal's emphasis.)

K, DPP v (1990) QBD

[Mens rea - recklessness - Cunningham recklessness required in assault]
D placed acid in a hot air drier to hide it from his teachers. V then used the drier and the acid caused burns on his face.

Held: Parker LJ:
D had "just as truly assaulted] the next user of the machine [V] as if [D] had himself switched the machine on".

If the charge was simply battery, it is not necessary to prove harm.

Guilty of ABH
This case was decided on Caldwell Recklessness but on that point was overruled by Sprat, which was later confirmed by Parmenter, which states that Cunningham Recklessness is the test for assaults. The House of Lords settled the issue in Parmenter and Savage
They also upheld Roberts (1971).

Kimber, R v (1983) CA

[Mens rea - recklessness in indecent assault]
D indecently assaulted a female patient in a mental hospital, admitted he was not interested in her feelings at all, this was recklessness.

Held: Recklessness in indecent assault cases is subjective

Guilty no miscarriage of justice despite misdirection.

Lamb, R v [1967] CA

[Mens rea - recklessness]
D and a friend V were playing with a revolver. In the chamber there were two bullets, but neither was opposite the hammer when D, in jest, pointed the gun at V and pulled the trigger. The chamber rotated and V was killed.

Held: D applied no thought to the risk thinking it was a joke; both believed the gun to be safe. There was no mens rea and so there was no assault and hence no unlawful act to support D"s conviction for manslaughter.

The mental element was an essential ingredient of the offence regardless of whether the test was gross negligence or recklessness.

The accused’s state of mind should take into account. He had indisputably formed the view that there was no danger and that there was expert evidence as to that being an understandable mistake.

Not guilty

Latimer, R v (1886)

[Mens rea - transferred malice – must be same crime]

D, a soldier during an argument with another man C in a pub, took off his belt swung it at C, missed and wounded the landlady V.

Held: The intention to strike C was transferred to V under the doctrine of transferred malice, although the result, in some respects, is an unintended one.

Guilty

Lawrence, R v (1982) HL

[Mens rea - reckless - reckless driving - model direction]

D drove his motorcycle on a 30mph road at about 80mph, and killed a pedestrian who was crossing the road.

Held:

Lord Diplock

"...the defendant was in fact driving the vehicle in such a manner as to create an obvious and serious risk of causing physical injury to some other person who might happen to be using the road or of doing substantial damage to property; and, second, that in driving in that manner the defendant did so without having given any thought to the possibility of there being any such risk or, having recognised that there was some risk involved, had none the less gone on to take it."

Not guilty because of misdirection by trial judge

It is not clear if this case was overruled by R v G (2003), it is our view that it was not.

Lewis v Cox [1985] QBD

[Mens rea - "wilfully" - action not "aimed at" police]

D wilfully obstructed a police constable in the execution of his duty by opened the door of police car to ask his friend where he was being taken (he was drunk).

Held: A person wilfully obstructed a police constable in the execution of his duty if he deliberately did an act which, though not necessarily "aimed at" or "hostile to" the police, in fact prevented a constable from carrying out his duty or made it more difficult for him to do so, and if he knew and intended that his conduct would have that effect.

Not Guilty but would be now

Lipman, R v [1969] CA

[Mens rea - Murder – intention not formed when intoxicated]

D and his girlfriend V each took a quantity of LSD. During his "trip", D imagined he was being attacked by snakes at the centre of the earth and had to defend himself; in doing so, he actually killed V by cramming eight inches of sheet down her throat.

Held: The jury were not sure that he had the necessary intention, being intoxicated.

Not guilt of murder guilty of manslaughter

Mohan, R v (1976) CA

[Mens rea (of attempts)]

D was driving his car and responded to a police officer's signal to stop. D slowed down but then accelerated towards the PC. The PC moved out of the way, D drove off. D was charged with attempt to cause bodily harm by wanton driving at a police constable.

The jury were directed that the prosecution had to prove that D realised that such wanton driving would be likely to cause bodily harm.

Held: Intent is an essential ingredient of an attempt and is the only mens rea of attempts.

Recklessness would often suffice as the mens rea for the full offence, attempt was a separate and often more serious offence with its own separate mens rea.

Intention is a decision to bring about, in so far as it lies within the accused power (the prohibited consequence) no matter whether the accused desired that consequence of his act or not.

Not guilty

Mitchell, R v [1983] CA

[Mens rea - manslaughter – transferred malice]

D and another man S became involved in a scuffle in a Post Office; D pushed S, who fell onto an elderly lady C, causing C injuries from which she later died.

Held: His intention to assault X was transferred to C.

Guilty of manslaughter

Also here

Nedrick, R v (1986) CA

[Mens rea - of murder - intention includes knowledge or foresight]

D poured paraffin through the letterbox of a house and set it alight, resulting in the death of a child.

Held: Per Lord Lane CJ:

"Where the charge is murder and in the rare cases where the simple direction [on intent] is not enough, the jury should be directed that they were […] entitled to infer the necessary intention [ if ] 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 realised that such was the case. Where a man realises that it is for all practical purposes inevitable that his actions will result in death or serious harm, the inference may be irresistible that he intended that result, however little he may have desired or wished it to happen. The decision is one for the jury, to be reached on consideration of all the evidence."

D was guilty of manslaughter, not murder.

Parker, R v (1977) CA

subjective/objective recklessness overruled by Caldwell, which has been overruled by R v G (2003)

Presumably Parker is still good law.

D smashed a telephone box in anger at not being able to make a call.

Pembliton, R v (1874)

[Mens rea - assault – transferred malice – cannot be transferred to a different offence]

D broke a pub window by picking up a stone and throwing it at the group of men he had been fighting, missed them and broke the window behind them.

Held: His "malice" in intending to strike another person could not be transferred to an intention to break the window.

Obiter: He could have been convicted had it been proved that he was reckless, having foreseen the risk of damage to the window.

Not Guilty

Pigg, R v (1982) CA

[Mens rea - subjective recklessness]
D was convicted of attempted rape.

Held: Lord Lane CJ:

"It seems to us that in the light of [the] decision in Caldwell, so far as rape is concerned, a man is reckless if either he was indifferent and gave no thought to the possibility that the woman might not be consenting in circumstances where if any thought had been given to the matter it would have been obvious that there was a risk that she was not, or, that he was aware of the possibility that she might not be consenting but nevertheless persisted regardless of whether she consented or not."

R v R (Stephen Malcolm) (1984) CA

Subjective/objective recklessness, overruled by R v G (2003)

D, aged 15, committed a series of burglaries. He was arrested as a result of a tip off to police. A few days later, milk bottles filled with petrol were thrown at the windows of a house in which persons were living whom R believed had "grassed" him. The petrol bombs were made, said R, intending not to injure but to frighten. At his trial on a count of arson with intent it was submitted that the "recklessness" required should relate to someone of the defendant's age and characteristics, not that of the prudent person of mature years. The judge refused the submission and R changed his plea.

Held: The court was not obliged to equate the ordinary prudent man to one who shared the sex, age and other particular characteristics of the defendant which might affect his recognition of risk.

D guilty

[Comment] Following R v G (2003) this case is now doubted.

Re A (Children) (2000) CA

[Mens rea - murder – intention can be inferred]

"Conjoined twin" Jodie and Mary needed to be separated to save the life of one the twin, but causing the immediate death of Mary.

Held: There could be no doubt that in English law, a surgeon who performed the separation knowing that it would inevitably hasten Mary's death would be held to have caused that death and to have done so intentionally, even though that would not have been his primary motive.

The doctrine of double effect did not apply here because Mary's death would not be a side-effect of treatment that was in her best interests overall. In the instant case the life to be taken was that of a person who (although morally blameless) was slowly killing her sister who was entitled to defend herself.

Declaration approved, operation carried out Mary died Jodie is living a normal life at the time of writing.

Also here.

Reid, R v (1992) HL

[Mens rea - objective recklessness - relevant to motoring cases]
D was driving in the inside lane of a dual carriageway. D tried to overtake another car on its nearside but there was a hut protruding into the road in the nearside lane. D's car struck the hut and his passenger was killed.

Held: Recklessness could not be restricted to a subjective test and included failing to appreciate an obvious risk. However, it was not always necessary to direct the jury precisely in the terms of Lord Diplock's specimen direction in Lawrence they must have regard to all the available evidence’.

Lord Ackner:
Lord Diplock's dicta in Lawrence was

"no more than a cautionary instruction to the jury ... yet before reaching any firm conclusion they must have regard to any explanation which accounts for [D's] conduct. In short, they must have regard to all the available evidence".

Held: Lord Goff:

"I accept that if D is addressing his mind to the possibility of risk and suffers from a bona fide mistake as to a specific fact which if true would have excluded the risk, he cannot be described as reckless though he may be guilty of careless driving."

Guilty

It is not clear if this case was overruled by R v G (2003), it is our view that it was not.

Richardson & Irwin, R v [1999] CA

[Mens rea - assault – did D, or would D, if sober, foresee the consequences – V can consent to horseplay]

DD two students lifted another over a balcony and dropped him about 12 feet to the ground, causing him serious injuries. During horseplay following an evening's drinking.

Held: Clarke LJ said the question was not what another person would have foreseen but what DD themselves would have foreseen had they been sober.

Not Guilty

Roberts, R v (1971) CA

[Mens rea - ABH - "occasioning" refers to causation - not the assault]
D in a car with V a not inexperienced 21 year old woman. They were travelling between two parties. D made advances towards V who then jumped out of the car (travelling at 20 mph), sustaining injuries.

Held: "Occasioning" in ABH relates to causation, and is an objective test.

If the (common) assault was intentional there is no need to consider Recklessness.

The proper test for "occasioning" is not whether D actually foresaw the conduct of the victim which resulted in the actual bodily harm, but whether that conduct could have reasonably been foreseen as the consequence of what he was saying or doing.

ABH requires proof of an assault together with actual bodily harm occasioned by the assault.

The prosecution are not obliged to prove that D intended to cause some actual bodily harm or was reckless as to whether such harm would be caused.

Stephenson LJ;
On Causation:
The victim's reaction does not break the chain of causation if it was reasonably foreseeable, that is it was not...

"so "daft" ... or so unexpected ... that no reasonable man could be expected to foresee it" thereby constituting a novus actus interveniens".

Guilty of ABH

Also here

Satnam, R v; Kewal, R v (1985) CA

[Mens rea - recklessness - rape - recklessness required is of Cunningham type]

D, aged 30 was accused of raping a 13 year old in the back of a car which was driven around by the second D. They claimed she had consented, or they thought she had.

Held: To be guilty of rape D must know the woman did not want to have sexual intercourse, or was reckless as to whether she wanted it or not.

If D genuinely believed that she wanted to, even though he was mistaken in his belief, he is not guilty.

"I was not really interested in Betty"s" (the victim"s) "feelings at all."; a "couldn"t care less" attitude is in law recklessness.

Not guilty (on grounds of misdirection but conviction quashed after most of 5 year sentence had been served)

Savage; Parmenter, R v (1992) HL

^[Mens rea - subjective recklessness - ABH and common assault - intention or recklessness - foresee some harm not necessarily the harm caused]
D intentionally threw beer at V (a former girlfriend of her husband). The glass left her hand and struck V, causing a cut.
P roughly handled his child, causing the breaking of arms and legs.

Held: The offence requires an actus reus of assault causing bodily harm and the mens rea for common assault. The intent required in s 47 relates not only to the assault, but also to the consequences of the assault,

Lord Ackner:

"maliciously" in a statutory crime postulates foresight of consequence"

"the physical harm which the defendant intended or foresaw might result to some person need only be of a minor character for him to be Guilty and it is unnecessary for the Crown to show that he intended or foresaw that his unlawful act might cause physical harm of the gravity described in s 20, i.e. either wounding or grievous bodily harm;"

S Guilty
P Not Guilty of GBH. Guilty of ABH

Scalley, R v [1995] CA

[Mens rea - murder – foresight is evidence of intent, not necessarily is intent]

D set fire to a house by pushing lighted newspaper through the letterbox, and a child died in the fire; D was charged with murder. The judge told the jury they should convict if they were sure that D intended death or grievous bodily harm, in the sense that he foresaw either consequence as virtually certain to result from his actions.

Held: The judge should have made it clear that foresight was merely evidence of intent and was not to be equated with it.

Not guilty of murder guilty of manslaughter.

Seymour, R v (1983) HL

[Mens rea - Caldwell/Lawrence recklessness – applicable to manslaughter caused by reckless driving]
D a lorry driver collided with another car. When the driver of the car (V) got out of the car D drove his lorry into the car and V was crushed between the two vehicles. V was killed. D was convicted of manslaughter.

Held: The appropriate direction to the jury in a manslaughter case where death was caused by reckless driving was Lord Diplock's dicta in Lawrence.

Lord Roskill:

"[there is] a need to prescribe a single and simple meaning of the adjective "reckless" and the adverb "recklessly" throughout criminal law ... That simple and single meaning should be the ordinary meaning of those words as stated in this House in R v Caldwell and in R v Lawrence".

Guilty of death by reckless driving

It is not clear if this case was overruled by R v G (2003),it is our view that it was not.

Sheehan & Moore, R v [1975] CA

[Mens rea - murder – intention must be proved]

D1 and D2 in a drunken state poured petrol over V and burned him to death, in revenge for a minor theft.

Held: The question was not whether DD were capable of forming the necessary intention but whether they had in fact done so, and the onus of proving that was on the prosecution.

Not guilty of murder guilty of manslaughter.

Shimmen, Chief Constable of Avon and Somerset Constabulary v (1986) QBD

Subjective/objective recklessness, doubted by R v G (2003)

D thought he had ruled out a risk, giving rise to the "Caldwell Lacuna".

More detail here

Smith, DPP v [1960] HL

[Mens rea - murder – intention to kill or GBH – intention can be formed instantly – intention can be inferred]

D trying to escape from the police in a car was signalled to stop. He did not do so. A PC jumped onto the car's bonnet. D drove at high speed, swerving from side to side, until the officer was thrown off and killed.

Held: It was clear that he had intended to cause grievous bodily harm, which meant no more and no less than really serious injury.

Guilty murder

Section 8 Criminal Justice Act 1967 now requires subjective approach. This case not followed in R v Hyam.

Stubbs, R v (1989) CA

[Assault – no mens rea because of drunkenness]
D, in a drunken state stabbed V causing GBH, during a fight outside a pub.
He was charged under s.18, but the prosecution and the Recorder accepted a plea to s.20.

Held: although the absence of mens rea due to drunkenness would be a defence to a crime of specific intent, that drunkenness would have to be very extreme to justify reducing a s.18 offence to s.20.

Not Guilty

Spratt, R v (1990) CA

[Mens rea – Cunningham Recklessness applicable in assaults]
D committed assault occasioning actual bodily harm (s 47 Offences Against the Person Act 1861)) by firing an air pistol from a window aiming at a sign. Two pellets hit a seven year old girl who was playing outside the window.

Held: In cases involving offences against the person, subjective foresight under the Cunningham test is required to prove recklessness.

This case overruled DPP v K [1990] and was itself overruled by Savage [1992] but the point remains that Cunningham Recklessness is required in assaults.

Stephenson, R v (1979) CA

subjective/objective recklessness, overruled by R v G (2003)

Man set fire to haystack.