ENS REA INTENTION ‘a decision to bring about, in so far as it lies within the accused’s power, the prohibited consequence, no matter whether the accused desired that consequence of his act or not’ (Mohan) MOTIVE IS IRRELEVANT IN DECIDING WHETHER D HAD INTENTION DIRECT INTENTION The defendant set out to achieve a particular result or consequence. They foresaw a particular result as a certainty and wanted to bring it about. Defined in Moloney as: ‘a true desire to bring about the consequences’. INDIRECT/OBLIQUE INTENTION (foresight of consequence) Where D intends one thing but the actual consequence which occurs is another thing. Here it is a question of foresight of consequence. If, in achieving the other thing, D foresaw that he would also cause the actual consequence, then he may be found guilty. Case Law: Moloney: HL’s confirmed that even where it was not someone’s desire, purpose and so on, the jury is entitled to infer that he still intended a result where D knows that the result is a natural consequence of his actions & D realised this. Hancock & Shankland: In such cases the probability of death or injury arising from the act done is important, because "if the likelihood that death or serious injury will result is high, the probability of that result may be seen as overwhelming evidence of the existence of the intent to kill or injure." Nedrick: ‘The jury should be directed that they are not entitled to INFER the necessary intention unless they feel sure that death or serious bodily harm was a virtual certainty (barring some unforeseen intervention) as a result of D’s actions and that the D appreciated that such was the case. The decision is one for the jury to be reached on a consideration of all of the evidence.” Woolin: ‘The jury should be directed that they are not entitled to FIND the necessary intention unless they feel sure that death or serious bodily harm was a virtual certainty (barring some unforeseen intervention) as a result of D’s actions and that the D appreciated that such was the case. Re A: The court thought that Woollin made foresight of consequence part of the substantial law rather than evidential law by substituting the word INFER with FIND i.e. that foresight of consequence IS intention not evidence of intention. Mathews and Alleyne: Confirmed that foresight of a consequence, even of a virtually certain one, is NOT intent, but simply evidence from which intention may be found. Although the CA said there was little to choose between a rule of evidence and a rule of substantive law leaving the meaning of intention ever more unclear. REFORM: Under our recommendations, first degree murder would encompass: (1) intentional killing; or (2) killing through an intention to do serious injury with an awareness of a serious risk of causing death. The Law Commission in common with a House of Lords Select Committee recommends that foresight of a virtual certainty should amount to intention. This would mean that foresight would again be part of the substantive law, not merely part of the evidence. At present, a person who kills foreseeing death or grievous bodily harm as virtually certain may be convicted of murder; under the reformed scheme such a person would be convicted of murder. RECKLESSNESS: Covers the situation where a defendant takes an unjustifiable risk. As with intention, it is a subjective test, and the defendant must recognise the risk that he or she is taking. Recklessness was defined in the case of R v Cunningham. Maliciously means that the D must either intend the consequence or realise that there was a risk of the consequence happening and decide to take that risk. Previously two different types of recklessness existed - subjective and objective (Caldwell Recklessness), but the objective form is now extinct following the case of R v G and Another (2003). GROSS NEGLIGENCE: Where D owes a duty of care, breaches that duty (by an act or omission) and creates a risk of death. (Misra & Another 2004 – bodily injury or injury to health not enough)The breach of duty is so gross that it deserves to be describes as ‘criminal’. (R v Adomako (1995)). TRANSFERRED MALICE : D can be guilty if he intended to commit a similar crime but against a different victim. (Latimer). But where the mens rea is completely different type of offence then D may not be guilty (Pembilton) GENERAL MALICE: D may not have a specific victim in mind e.g. terrorism. In this case the D’s mens rea is held to apply to the actual victim. COINCIDENCE OF ACTUS REUS AND MENS REA: Both actus reus and mens rea must be present for an offence to take place. This can happen where the actus reus and mens rea combine in a series of acts (Thabo Meli v R; Church). As long as they coincide at some point (say where the actus reus is a continuing act) then D will be guilty (Fagan).
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