2/11/16 850424 Telford
Mens Rea
Recklessness: knowingly taking a risk.
Gross negligence: really badly not living up to an expected standard.
Hierarchy of mens rea terms:
Intention - Knowledge/Belief
Recklessness
Gross negligence
Negligence
Strict Liability
Intention
Important! Some offences, only proof of intent will suffice and type will determine punishment.
Direct Intent
Professor Anthony Duff’s success/failure test:
- Would the defendant regard himself as having failed the result did not occur?
- If so, then he directly intended that result
[From Duff (1990), Intention Agency and Criminal Liability, p61.]
Oblique intent
Woollin [1999] AC 82
If death or serious bodily harm was a virtual certainty as a result of D’s actions and the latter
appreciated that such was the case, then the jury are entitled (but not obliged) to find the
defendant (obliquely) intended death of serious bodily harm.
Recklessness
‘Maliciousness’ used in statutes before (too uncertain). It became: ‘intention to cause harm’ or
‘recklessness.
Cunningham [1957] 2 QB 396 CCA
Semi-detached house. Pulled gas meter off wall for pennies: gas escaped through house: Old
woman partially asphyxiated.
Cunningham recklessness
(1) Foresight of the risk
(2) The decision to take the risk
(3) The risk taking was unjustified
Doctor performing very risky operation on a seriously injured patient. If he doesn’t, patient will die
and if he does, patient might die but might be saved. Is the risk a justifiable one to take?
Justifiable risk so not reckless.
Briggs [1977] 1 WLR 605 CA
Statute was issue. CA said the intention of drafters was to give ‘recklessness’ the Cunningham
meaning. Therefore, prosecution had to prove that D had a foresight of the risk and still acted.
1
Mens Rea
Recklessness: knowingly taking a risk.
Gross negligence: really badly not living up to an expected standard.
Hierarchy of mens rea terms:
Intention - Knowledge/Belief
Recklessness
Gross negligence
Negligence
Strict Liability
Intention
Important! Some offences, only proof of intent will suffice and type will determine punishment.
Direct Intent
Professor Anthony Duff’s success/failure test:
- Would the defendant regard himself as having failed the result did not occur?
- If so, then he directly intended that result
[From Duff (1990), Intention Agency and Criminal Liability, p61.]
Oblique intent
Woollin [1999] AC 82
If death or serious bodily harm was a virtual certainty as a result of D’s actions and the latter
appreciated that such was the case, then the jury are entitled (but not obliged) to find the
defendant (obliquely) intended death of serious bodily harm.
Recklessness
‘Maliciousness’ used in statutes before (too uncertain). It became: ‘intention to cause harm’ or
‘recklessness.
Cunningham [1957] 2 QB 396 CCA
Semi-detached house. Pulled gas meter off wall for pennies: gas escaped through house: Old
woman partially asphyxiated.
Cunningham recklessness
(1) Foresight of the risk
(2) The decision to take the risk
(3) The risk taking was unjustified
Doctor performing very risky operation on a seriously injured patient. If he doesn’t, patient will die
and if he does, patient might die but might be saved. Is the risk a justifiable one to take?
Justifiable risk so not reckless.
Briggs [1977] 1 WLR 605 CA
Statute was issue. CA said the intention of drafters was to give ‘recklessness’ the Cunningham
meaning. Therefore, prosecution had to prove that D had a foresight of the risk and still acted.
1
