Mala in se and mala prohibita distinction.
Prosecution’s burden of proof beyond reasonable doubt
The claim has to be sure so that the prosecution rules fairly.
Actus reus and mens rea; lack of mens rea? Also explore three
elements of mens rea.
R v G [2003] UKHL 50: Recklessness defined as “reasonably
foreseeing the damage”.
But for test: R v White [1910].
Offence of failure to rescue (RHOSE ISLAND LEGISLATION, USA): “Any
person at the scene of an emergency who knows that another person is
exposed to, or has suffered, grave physical harm shall, to the extent
that he or she can do so without danger or peril to himself or herself or
to others, give reasonable assistance to the exposed person. Any
person violating the provisions of this section shall be guilty of a petty
misdemeanour and shall be subject to imprisonment for a term not
exceeding six months or by a fine of not more that $500 or both.”
Cognitive approach (Mens rea): mental state, e.g. knowledge,
foresight, belief and intent).
Moral attitudinal approach i.e. mens rea as an attitude e.g. wicked
recklessness, malice, depraved heart, indifference, wilfulness, couldn’t
care less).
Murder requires an intention to kill or cause grievous harm.
‘The golden rule should be that, when directing a jury on the mental
element necessary in a crime of specific intent, the judge should avoid
any elaboration or paraphrase of what is meant by intent, and leave it
to the jury’s good sense to decide whether the accused acted with the
necessary intent, unless the judge is convinced that, on the facts and
having some regard to the way the case has been presented to the jury
in evidence and argument, some further explanation or elaboration is
strictly necessary to avoid misunderstanding.’
R v Moloney per Lord Bridge
Intention: A result is intended if it is the aim or purpose of an act or
omission.
Duff’s ‘test of failure’: A result is intended if the defendant would
regard the outcome of his conduct as a failure if the result did not
occur. This is not a a legal test but a way of understanding what the
ordinary word means, AKA…
This is called analytical thinking; we analyse the meaning of intention
to better understand it.
CASE FOR OBJECTIVE INTENTION: SMITH (‘WHAT THE ORDINARY
REASONABLE PERSON WOULD… HAVE CONTEMPLATED AS THE
NATURAL AND PROBABLE RESULT)
CRA 1967 S8: ‘whether he did intend or foresee that result by
reference to all evidence, drawing such inferences from th evidence as
appear proper in the cirmcustances’.
Hyam (1974): FORESIGHT OF HIGH PROBABILITY: The trouble is that
this is running a risk that a thing happened, not intending it should
happen so this overlap with the definition of recklessness adopted in
the 1950s. Mrs H was reckless and Hyam left no clear distinction
between the two categories of MR. Mrs H did something very
dangerous and for a bad motive As a result she killed – in Scotland
wicked recklessness. But it doesn’t seem quite right to say that she
, intended to kill – when that is not what she intended; she merely ran
the risk of it
Moloney (1985) ‘The probability of the consequence must be little short
of overwhelming before it will establish the necessary intent’ ‘Did D
foresee the consequence as a natural consequence of his act?’
Struggling with the inadequacy of Hyam – HL went for ‘liitle short of
overwhelming’ But then summarised
Direct intention
o Aim or purpose of D’s act or omission.
Indirect intention
o Where not D’s aim or purpose, the tribunal of fact is entitled to find
intention where prohibited outcome was a virtual certainty and D
‘appreciated’ that it was a virtual certainty.
· Perverse Verdicts (UK term): A verdict is perverse when the jury
clearly refuses to follow the direction or instruction of the trial court
upon a point of law, or where the verdict reflects highly emotional,
inflammatory or immaterial considerations, or an obvious prejudgment
with no attempt to be fair.
· Mens Rea is about BLAMEWORTHINESS. The more culpable a person
is the more blameworthy they will be. Murder can only be proved WITH
intention, otherwise it is not chargeable with murder.
· Lesser forms of intention; marks lesser culpability. Engages with their
autonomous capacity for self control. So murder with no intent is not as
bad as fully intending to murder someone.
· Knowing there is a high risk = recklessness.
Caldwell / Lawrence (1981)
· Damaging property being reckless as to whether life is endangered.
· D also reckless if gives no thought to AN OBVIOUS AND SERIOUS RISK.
· Elliot v C [1983]
· D was 14 years old with learning difficulties. She set fire to a
flammable liquid and burned down garden shed. She did not foresee
any risk because incapable of foreseeing a risk. She was reckless and
therefore convicted however, for taking obvious and serious risk of
damage.
Pembliton: D throws a stone at V. the stone misses but smashes a
window: did D ‘maliciously’ (recklessly) damage the window?
· Latimer: D swings a belt at V1. V1 sways out of the way and the belt
hits and injures V2. did D ‘maliciously’ (recklessly) injure V2?
· Saunders and Archer: In one sense a simple case. D intends to kill V1,
but the action instead kills V2.
Prosecution’s burden of proof beyond reasonable doubt
The claim has to be sure so that the prosecution rules fairly.
Actus reus and mens rea; lack of mens rea? Also explore three
elements of mens rea.
R v G [2003] UKHL 50: Recklessness defined as “reasonably
foreseeing the damage”.
But for test: R v White [1910].
Offence of failure to rescue (RHOSE ISLAND LEGISLATION, USA): “Any
person at the scene of an emergency who knows that another person is
exposed to, or has suffered, grave physical harm shall, to the extent
that he or she can do so without danger or peril to himself or herself or
to others, give reasonable assistance to the exposed person. Any
person violating the provisions of this section shall be guilty of a petty
misdemeanour and shall be subject to imprisonment for a term not
exceeding six months or by a fine of not more that $500 or both.”
Cognitive approach (Mens rea): mental state, e.g. knowledge,
foresight, belief and intent).
Moral attitudinal approach i.e. mens rea as an attitude e.g. wicked
recklessness, malice, depraved heart, indifference, wilfulness, couldn’t
care less).
Murder requires an intention to kill or cause grievous harm.
‘The golden rule should be that, when directing a jury on the mental
element necessary in a crime of specific intent, the judge should avoid
any elaboration or paraphrase of what is meant by intent, and leave it
to the jury’s good sense to decide whether the accused acted with the
necessary intent, unless the judge is convinced that, on the facts and
having some regard to the way the case has been presented to the jury
in evidence and argument, some further explanation or elaboration is
strictly necessary to avoid misunderstanding.’
R v Moloney per Lord Bridge
Intention: A result is intended if it is the aim or purpose of an act or
omission.
Duff’s ‘test of failure’: A result is intended if the defendant would
regard the outcome of his conduct as a failure if the result did not
occur. This is not a a legal test but a way of understanding what the
ordinary word means, AKA…
This is called analytical thinking; we analyse the meaning of intention
to better understand it.
CASE FOR OBJECTIVE INTENTION: SMITH (‘WHAT THE ORDINARY
REASONABLE PERSON WOULD… HAVE CONTEMPLATED AS THE
NATURAL AND PROBABLE RESULT)
CRA 1967 S8: ‘whether he did intend or foresee that result by
reference to all evidence, drawing such inferences from th evidence as
appear proper in the cirmcustances’.
Hyam (1974): FORESIGHT OF HIGH PROBABILITY: The trouble is that
this is running a risk that a thing happened, not intending it should
happen so this overlap with the definition of recklessness adopted in
the 1950s. Mrs H was reckless and Hyam left no clear distinction
between the two categories of MR. Mrs H did something very
dangerous and for a bad motive As a result she killed – in Scotland
wicked recklessness. But it doesn’t seem quite right to say that she
, intended to kill – when that is not what she intended; she merely ran
the risk of it
Moloney (1985) ‘The probability of the consequence must be little short
of overwhelming before it will establish the necessary intent’ ‘Did D
foresee the consequence as a natural consequence of his act?’
Struggling with the inadequacy of Hyam – HL went for ‘liitle short of
overwhelming’ But then summarised
Direct intention
o Aim or purpose of D’s act or omission.
Indirect intention
o Where not D’s aim or purpose, the tribunal of fact is entitled to find
intention where prohibited outcome was a virtual certainty and D
‘appreciated’ that it was a virtual certainty.
· Perverse Verdicts (UK term): A verdict is perverse when the jury
clearly refuses to follow the direction or instruction of the trial court
upon a point of law, or where the verdict reflects highly emotional,
inflammatory or immaterial considerations, or an obvious prejudgment
with no attempt to be fair.
· Mens Rea is about BLAMEWORTHINESS. The more culpable a person
is the more blameworthy they will be. Murder can only be proved WITH
intention, otherwise it is not chargeable with murder.
· Lesser forms of intention; marks lesser culpability. Engages with their
autonomous capacity for self control. So murder with no intent is not as
bad as fully intending to murder someone.
· Knowing there is a high risk = recklessness.
Caldwell / Lawrence (1981)
· Damaging property being reckless as to whether life is endangered.
· D also reckless if gives no thought to AN OBVIOUS AND SERIOUS RISK.
· Elliot v C [1983]
· D was 14 years old with learning difficulties. She set fire to a
flammable liquid and burned down garden shed. She did not foresee
any risk because incapable of foreseeing a risk. She was reckless and
therefore convicted however, for taking obvious and serious risk of
damage.
Pembliton: D throws a stone at V. the stone misses but smashes a
window: did D ‘maliciously’ (recklessly) damage the window?
· Latimer: D swings a belt at V1. V1 sways out of the way and the belt
hits and injures V2. did D ‘maliciously’ (recklessly) injure V2?
· Saunders and Archer: In one sense a simple case. D intends to kill V1,
but the action instead kills V2.
