Week 8 tutorial: Mens rea – recklessness and negligence
Knowledge: It is generally seen as equivalent to intention ini terms of culpability. D has knowledge
of an offence if a) she believes that it is the case and b) she is correct in that belief. The mens rea
of knowledge includes subjective and objective parts. The subjective part focuses on D’s state of
mind: he must believe that the offence element is the case. The objective part focuses on the
objective reality: What D believes must be true in fact before we can say that he has knowledge of
it.
Wilful blindness: It can be found where D: a) foresees the possibility of a certain circumstance,
b)it would be easy for D to discover the truth, c) D deliberately avoids finding out and d) the
circumstance is in fact present.
Belief: Not as culpable as intention or knowledge. D has a belief that a circumstance exists, or
that a result will be caused, where she foresees it as highly likely. Where D believes a fact and she
is correct, we can say that she has knowledge or belief of it. However, where D believes a fact and
she is not correct, we can only say that she has belief.
Recklessness: To satisfy a mens rea of recklessness, it must be demonstrated that D: a) foresaw
a risk of the relevant element of the actus reus and b) unreasonably continued to run that risk.
The test has two parts:
Subjective part: D must have foreseen a risk of the offence element being satisfied
The first part focuses on D’s state of mind, at the time of acting D must have foreseen a risk of the
relevant circumstance or result.
A) D must foresee the risk of damage to the window: our focus is on D’s mind. Thus, if the
jury believe that D did not foresee or might not have foreseen a risk of damaging the window
with the stone then the test will not be satisfied even if the risk would have been obvious to the
reasonable person. R v Stephenson.
B) The size of the risk foreseen by D is irrelevant: For recklessness whether D foresees the
risk as virtually certain, highly likely, unlikely etc, as long as a risk is foreseen, it will be
sufficient. Foresight on any risk is sufficient. R v Brady.
C) How carefully D considers the presence of the risk is irrelevant: Some foresight of the
risk is all that is required. In certain cases, the courts have even been willing to accept that a
risk was foreseen when it was ‘suppressed’, or ‘driven out’, or where D ‘closed his mind’ to it. In
cases such as Parker, the test is satisfied therefore on the somewhat artificial basis that the
risk was foreseen by D in the back of her mind.
D) What D thinks about the risk is irrelevant
Objective part: D must have unreasonably continued to run the risk
Having established that D foresaw a risk of the circumstance or result element, it must also be
demonstrated that D unreasonably chose to run that risk. It doesn't matter whether D thought it
was reasonable to run the risk, the question is whether the court think it was reasonable based on
the standards of reasonable people acting in D’s circumstances.
Dishonesty
The definition of dishonesty is now settled within the common law, set out in Ghosh. The jury must
consider two questions.
a) Was what was done dishonest according to the ordinary standards of reasonable and honest
people? If no, D is not dishonest. If yes:
b) Did the defendant realise that reasonable and honest people regard what she did as
dishonest? If yes, she is dishonest; if no, she is not.
Negligence
It is used to describe a certain type of behaviour from D that drops below the standards that we
expect from reasonable people. A requirement of negligence most commonly arises in relation to
Knowledge: It is generally seen as equivalent to intention ini terms of culpability. D has knowledge
of an offence if a) she believes that it is the case and b) she is correct in that belief. The mens rea
of knowledge includes subjective and objective parts. The subjective part focuses on D’s state of
mind: he must believe that the offence element is the case. The objective part focuses on the
objective reality: What D believes must be true in fact before we can say that he has knowledge of
it.
Wilful blindness: It can be found where D: a) foresees the possibility of a certain circumstance,
b)it would be easy for D to discover the truth, c) D deliberately avoids finding out and d) the
circumstance is in fact present.
Belief: Not as culpable as intention or knowledge. D has a belief that a circumstance exists, or
that a result will be caused, where she foresees it as highly likely. Where D believes a fact and she
is correct, we can say that she has knowledge or belief of it. However, where D believes a fact and
she is not correct, we can only say that she has belief.
Recklessness: To satisfy a mens rea of recklessness, it must be demonstrated that D: a) foresaw
a risk of the relevant element of the actus reus and b) unreasonably continued to run that risk.
The test has two parts:
Subjective part: D must have foreseen a risk of the offence element being satisfied
The first part focuses on D’s state of mind, at the time of acting D must have foreseen a risk of the
relevant circumstance or result.
A) D must foresee the risk of damage to the window: our focus is on D’s mind. Thus, if the
jury believe that D did not foresee or might not have foreseen a risk of damaging the window
with the stone then the test will not be satisfied even if the risk would have been obvious to the
reasonable person. R v Stephenson.
B) The size of the risk foreseen by D is irrelevant: For recklessness whether D foresees the
risk as virtually certain, highly likely, unlikely etc, as long as a risk is foreseen, it will be
sufficient. Foresight on any risk is sufficient. R v Brady.
C) How carefully D considers the presence of the risk is irrelevant: Some foresight of the
risk is all that is required. In certain cases, the courts have even been willing to accept that a
risk was foreseen when it was ‘suppressed’, or ‘driven out’, or where D ‘closed his mind’ to it. In
cases such as Parker, the test is satisfied therefore on the somewhat artificial basis that the
risk was foreseen by D in the back of her mind.
D) What D thinks about the risk is irrelevant
Objective part: D must have unreasonably continued to run the risk
Having established that D foresaw a risk of the circumstance or result element, it must also be
demonstrated that D unreasonably chose to run that risk. It doesn't matter whether D thought it
was reasonable to run the risk, the question is whether the court think it was reasonable based on
the standards of reasonable people acting in D’s circumstances.
Dishonesty
The definition of dishonesty is now settled within the common law, set out in Ghosh. The jury must
consider two questions.
a) Was what was done dishonest according to the ordinary standards of reasonable and honest
people? If no, D is not dishonest. If yes:
b) Did the defendant realise that reasonable and honest people regard what she did as
dishonest? If yes, she is dishonest; if no, she is not.
Negligence
It is used to describe a certain type of behaviour from D that drops below the standards that we
expect from reasonable people. A requirement of negligence most commonly arises in relation to
