Tutorial 5 - Mens Rea: The Fault Element in Crime

Key Cases:
Woollin [1999] 1 AC 82; Steane (1947) KB 997; Hancock and Shankland (1985) 3 WLR 1014;
Moloney (1985) 1 All ER 1025.
Presentation:
R v G [2003] UKHL 50
Questions:
1. What is the difference between intention and motive?
- Duff’s test of failure: had the result not occurred would the defendant regard himself
as having failed in his plan?
- It is possible to intend a consequence without wanting it to happen.
- Hales – D ran over a police officer in his car in attempting to escape from an arrest. It
was not his motive to kill the police officer, but he was, Keene LJ explained,
‘prepared to kill in order to escape’ and thus intended to kill.
- Proving that someone had a motive to kill the victim is strong evidence that that
person intended to kill the victim.
- A person’s intention that counts, not the motive
- Re Cox – One of the patients of Doctor Cox had a number of medical problems and
was terminally ill. Doctor Cox injected this patient with potassium chloride, killing
the patient. The defendant’s conviction for attempted murder (by the time
investigation started, V already cremated, could not find if potassium chloride is the
cause of death) was upheld. By administering potassium chloride which stopped the
victim’s heart, Doctor Cox was a primary rather than an incidental cause of the
victim’s death. [instead of painkillers been prescribed, there is no intention to
alleviate pain]
- Adams – a doctor who gave pain-relieving drugs to a patient, aware that these may
slightly shorten the patient’s life span, did not intend to kill the patient, because his
purpose was to relieve pain, not kill
- Intend something to happen without wanting it to happen
- Lynch v DPP
- R v Adams
- R v Cox

2. Why is motive not supposed to be relevant to a person’s culpability?

- Duff – If Parliament has not so declared motive to be relevant as part of the definition
of an offence, the courts cannot permit the defendant to raise his good motive as a
defence.
 - If defendant objects to the law, the way to raise it is through political channels and
not by committing crimes and raising the issue by way of a defence.
- Example, the legal response to euthanasia should be decided by Parliament, not by
juries deciding on individual cases whether the defendant’s motives were good.
- Norrie – start looking at motive – bring in complex social and political explanations
for people’s actions – the legal system, in not wanting to challenge the social and
political status quo, avoids entering such treacherous waters by generally refusing to
consider motives.
- How the law should work up to parliament to decide. Jury might say someone did this
for specific motive – inconsistencies in criminal law

a) Have the courts always kept to this principle?

- Steane – D who during the war assisted the enemy because he feared that otherwise
his family would be sent to concentration camp was held not to have intended to
assist the enemy
- Adams – a doctor who gave pain-relieving drugs to a patient, aware that these may
slightly shorten the patient’s life span, did not intend to kill the patient, because his
purpose was to relieve pain, not kill
- Gillick v West Norfolk and Wisbech AHA – a doctor who gave a girl aged under 16
contraceptive advice and pills would not necessarily be committing the offence of
aiding and abetting unlawful sexual intercourse. Although the doctor might know that
as a result of the advice a girl might therefore engage in sexual intercourse, he did not
intend to assist her.

b) Why do you think that they sometimes take it into account when they are not
supposed to?
- Motive may help in establishing what the D’s purpose is. Often, a person’s motive is
to produce a particular result in which his or her motive and intention are the same.
Norrie – difficult to imagine someone having an intention to do something without
having a motive; motive is the driving force behind the intention
- Motive may be relevant in deciding, in cases of oblique intention, whether the jury
will find from virtual certainty and foresight of that virtual certainty that there was
intention
- There have been cases where it is widely thought that the jury has acquitted the D
because they have believed he acted from the best of motives, despite a clear
direction from the judge that he is guilty in the eyes of the law
- Impossible to assess whether D was acting dishonestly for the purpose of property
offences without considering the motive of D
- In relation to defences, it is important to know whether what motivated Ds actions
was the justifying reason. Exp, in order to plead self-defence D must use force in
order to defend themselves and not out of revenge.
 - Jury can use it as a tool to understand what is in defendant’s mind, shouldn’t be use
for culpability but to better understand certain issues
- Some offences require proof of motive

c) On what ground could Steane have been acquitted other than his lack of criminal
intent?
- Didn’t have the mental element necessary – second reason is to save family
- Have intention to betray country but also the motive to save family – motive stronger
issue – coerced/forced to do – duress

3. How would you define intention? Do you agree with Lord Diplock’s definition of
‘intention’ in Hyam? If A acts in the knowledge that a consequence is certain does
this mean he intends it to happen?

Intention (4 views)
- Pure intention view – intention should mean purpose, nothing more and nothing less –
quite possible to foresee a result as virtually certain but not intend it
- Moral elbow room view – intention is purpose, but that where D is aware that a result
is virtually certain to follow from his actions the jury should be given a discretion to
decide whether the mental state is wicked enough to be called intention
- Oblique intention view – foreseen as virtually certain is simply intended (likely is not
virtually certain)
- Hyam view – if a result is foreseen as likely then it is intended

- Intention – willingness to bring about a certain result; ordinary words: ‘aim/purpose’

of the D
- Moloney – set up what intention is (meaning)

If A acts in the knowledge that a consequence is certain

- Pure intention view – not necessarily that he intends it to happen
- Moral elbow room view – jury has the discretion to decide
- Oblique intention view – foreseen as virtually certain simply intended
- Hyam view – intended since the view is that if a result is foreseen as likely then
intended
- Hyam – Foreseeable – high prob enough – Lord Diplock (dissenting) – high prob is
not enough, need for a willingness to produce an evil consequence [murder mens rea
includes attitude of mind of accused not only towards physical act but also towards a
particular evil consequence of that act] – intention can only be subjective – offender
entitled to give defence in his own defence – obj no longer provided the only means
available)
- Hyam – foresight and prob enough
 - Woollin – need virtual certainty, D aware, jury can decide – if A acts in the
knowledge that consequence is certain, then there is intention; high prob not enough
- Moloney – Knowledge of foresight of the consequences of an action were to be
considered at best material from which a crime of intent may be inferred – Lord
Bridge (foresight of consequences belongs not to the substantive law but to law of
evidence)

4. Distinguish between direct intent oblique/indirect intent and recklessness.

Direct intention
- Intention is the desire, aim, purpose, objective
- Duff’s test of failure: would A consider his action a failure if the consequence did not
occur as a result of his action?
- Moloney
Indirect intention
- D intends if the result is a virtually certain consequence of D’s actions, D foresees it
as virtually certain, the jury may find that D intended. [Woollin]
- Foresight of probability is not enough [Moloney] – just because D foresaw death was
likely result of his actions does not mean that he necessarily intended death
Recklessness
- Subjective: Cunningham recklessness – 2 elements
1. A circumstance/result when D is aware of a risk that exists or will exist
2. Risk was an unreasonable one for D to take
- Conscious awareness of the risk – whether D foresaw the risk, not whether the risk
was obvious or would have been foreseen by a reasonable person
- Stephenson – D (schizophrenia) lit a fire in a haystack and destroyed it. Due to his
illness he did not realise that in lighting a match there was a risk to the haystack.
Although the risk was obvious and most people would have foreseen the risk, D did
not.
- Deliberately closing one’s mind to the obvious is the equivalent of knowledge and
D certainly cannot escape the consequences of his action
- R v Parker – smashed a telephone handset onto dialling box of public telephone and
damaged it – D was plainly fully aware of all the circumstances (material of handset
and the cradle, degree of force which he was using) – to say he did not know –
deliberately closing his mind to the obvious – having a risk in the back of one’s mind
is not the same as consciously taking a risk but CA accepted that it was sufficient to
amount to Cunningham recklessness

- Objective – Caldwell recklessness abolished (aware of the risk OR obvious and

serious risk AND failed to consider whether or not there was a risk)
 - Elliot v C – D punished for failing to notice a risk which would have been obvious to
a reasonable person
- 14 y/o girl with learning difficulties set fire to a shed by lighting white spirit. Test
was whether a reasonable person would have realised that the lighting of the spirit
would create a risk of damage to the shed not whether the risk was obvious to the
defendant or obvious to a reasonable person of D’s age and mental abilities

5. Kildare, a doctor, removes the hospital’s sole life support machine from Duckworth
who is terminally ill, and transfers it to Barlow, who is not. She knows that the
consequence will be that Duckworth dies, but determines to do it since Barlow's
chances of recovery are far higher. Does Kildare intend to kill Duckworth?

- Moloney - 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 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.

- I: is there an intention to kill Duckworth? Is it K’s aim to kill? [Moloney], did K

intend to kill?
- P: indirect intention – jury may find that there is intention if the result is foreseen as a
virtual certainty and D foresees it (Woollin) intention – ‘aim/purpose’ to bring about
a specific result [Moloney] – was it K’s intention to kill, no
- A:
- Re A (Conjoined Twins) – doctor needs to make a decision which of the two
conjoined twins to be saved. If surgically separated, Gracie had a 94% survival rate
with little margin of error, but Rosie was guaranteed to die. If left conjoined, then
their life expectancy—fast deteriorating—would be, with low margin of error, six
months.
- Direct intention – ordinary meaning of the word [Moloney]
- Test for indirect intention – virtual certainty yes, is K aware yes, fulfil the test
for indirect intention; but, unlikely the jury will find K intended to kill because
he is a physician – Adams, Conjoined Twins – secondary motive; unlikely to
have intended to kill
- Could be argued that Kildare’s decision to save Barlow who has a higher chance of
recovering is the more prominent decision. Kildare is left with no choice; Duckworth
could be certain to die from the terminal disease, Barlow’s chances are far higher.
Probability does not mean it is virtually certain but since Kildare certain to die and a
 doctor’s duty is to save lives, it could be argued that Kildare’s decision to save life is
more prominent decision.
- C: intention is to save lives, not to kill

Would it make any difference if the sole motive for the transfer was that Kildare
was
a) in love with Barlow?
- Intend to save, not to kill

b) hated Duckworth?
- Could be a direct intention

Would it make any difference if Kildare was not a doctor in the first scenario?

6. Is there room for both “subjective” and “objective” forms of recklessness in English
criminal law?
- Cunningham – steal money from gas metre – 2 test – [subjective] D aware of the risk,
unreasonable to take it, conduct would result in a particular result
- Caldwell – obvious risk, person failed to consider whether there is a risk [obj] created
a prob for people with difficulties, children
- Elliot v C, R v G – revert to subjective standard
- Parker (smashed telephone) – closing of mind to the risk
- Create a test [Reid case?] – still have obvious risk (obj), is there a good reason, is the
person a child? Disabled? Where is the mind of defendant when contemplating the
risk and foreseeability?

7. When might a person consciously take a risk of causing harm and yet not be
considered reckless?

- As long as the risk is reasonable [objective – whether the risk was a reasonable one to
take is to be decided by standards of the ordinary and reasonable person]
- Exp, D is driving and a child runs out in front of his car and he swerves out of the
way, the swerve may pose a risk to other road users but to swerve would be regarded
as reasonable