Mens Rea - Intention, Recklessness - Insight Needed

Lawstudent1

Hello,

I am a current law student that is having some difficulty with the subject of mens rea. The frustration is getting to the point where I really don't feel that I am cut out for law. However I'm not quite ready to give up just yet and I am hoping my confusion can be easily extinguished! I am wondering of some of you legal brains can help me better understand two elements of mens rea : Intention and Recklessness.

Now I am aware that when talking about intention there is direct intention and oblique intention. Direct intention is bringing about the result you desire. However it is when I look at oblique intention that I start to have difficulties. From my understanding, oblique intention means bringing about a result that is not desired but is seen as virtually certain. As such in the eyes of the court someone with oblique intention has the requiste means reas for murder.

Now in Hyam v DPP, a defendant was deemed to have oblique intention where set fire to a house killing it's occupants because she admitted that she was aware there was a high probability that the fire she started could seriously injure or kill somone in the house. But this seemed to merge recklesness with intention as having foresight was seen as intending the result. It would seem though that this definition was followed in DPP v Douglas and Hayes.

However in R v Maloney the court seemed to depart from the judgement in Hyam v DPP. This case involved a father and son who, both drunk, had a competion to see who could load, draw and shoot a gun faster. The defendant consequently shot his father and he claimed the consequences didn't occur to him due to his drunken state. The courts then said that the test of a high probability set out in Hyam v DPP was insufficient and that a test of virtual certainity should be applied. So in this case intention was downgraded to recklessness. I believe that this was repeated in R v Nedrick.

But how is this satisfactory? Does the requirement for a level of virtual certainity mean that an armed robber who kills a police man by spraying a police car with bullets without an intention to kill but with an intention to ward off the pursuers be regarded as reckless? I mean the robber cannot be virtually certain that any of the bullets would actually hit any of the police and as he didn't intend them to either then surely he will be liable for reckless manslaughter and not murder?

Aside from the question am I right in saying that oblique intention is only proven when the consequences of the action are seen as virtually certain? So if I taper with a plane's engine with the intention to cause the plane to have an emergency landing but, as a result, the plane crashes into a mountain and all the passenger's die, I cannot be deemed to have oblique intention as, whilst that consequence was probable it wasn't virtually certain?



Then onto recklessness. From what I understand the main contention with recklessness is whether a subjective or objective test should be used. So in MPC v Caldwell, a defendant who set fire to a hotel whilst drunk and subsequently claimed he did not appreciate the risk due to his drunken state was deemed to have been reckless as the risk that the hotel would burn down would have been obvious to a reasonable man. However am I correct in saying the problem with this ruling is that mens reas isn't actually proven here as the defendant himself didn't have the necessary culpable state of mind and that constructive knowledge has no place in the area of mens rea. This is unsatisfactory because the ruling in Caldwell means that a child or mentally disabled person will be judged to the standard of an ordinary, adult person where to do so would be unjust.

So in Elliot v C, a 14 year old girl of subnormal intelligence was deemed reckless for starting a fire even though the defendant could not possibly of realised the risk due to her sub normal intelligence. Similarly in R v G where two 11 year old buys set fire to a bin causing over £1million worth of damage when it spread to adjoining buildings were, unfairly, subject to the reasonable man test despite not having the mental capacity at that age of a reasonable, adult, man.

So, following R v G the courts in England seemed to finally adopt a subjective test.

But then Ireland seemed to set out that the subjective test would only be used in areas where the nature of the crime is serious such as in DPP v Murray. Why was this?

Eventually in DPP v McGrath, DPP v Cagney and Clifford v DPP the court stated that subjective was the way forward.

So would I be right in saying that recklesness is knowingly running an unjustified risk? And that objectivity (now) doesn't come into it?
Would I also be right in saying that any foresight even if highly probable will be deemed reckless unless it is of a level of virtual certainity?

Also am I missing anything here? I just feel I haven't actually grasped the concepts.

I would really appreciate any insight at all no matter how small as I'm at the end of my tether here and am focusing way too much time trying to grasp this one particular area and am neglecting other areas of law I need to study for my exams. Thanks

drkpower

Lawstudent1 wrote: »

The frustration is getting to the point where I really don't feel that I am cut out for law.

Your query is waaaaay too long for me to actually answer you (;)) but, just on this point, most of the 250+ lawyers in the firm i am in would probably make an utter hash of explaining what mens rea is. Dont sweat it.

brian__foley

Lawstudent1 wrote: »

Hello,

I am a current law student that is having some difficulty with the subject of mens rea. The frustration is getting to the point where I really don't feel that I am cut out for law.

You are entirely "cut out" for the law. Many people wouldn't grasp the difficulties and problems in this area enough to even formulate the points outlined above.

I can't get into the above right now in massive detail, but LRC's Report on Homicide: Murder and Involuntary Manslaughter (LRC 87 – 2008), might help you out.

If I was to give bullet point answers I'd say

- The way Irish courts went in the past tended to avoid the need to talk about "virtual certainty" - see LRC, at page 41 or see The Judge's Charge in Criminal Trials (Round Hall, 2008), at Chapter 12 (I think). The "natural and probable consequences" test tends to avoid problems with the machine gun example as outlined above. In short, it is arguable that this Irish approach to intention renders the need to resort to the principles used establish intention in “non-purposive” cases somewhat moot. This is simply because the Irish courts have not historically taken the leap beyond the “natural and probable consequences” test into any specific requirements about specific levels of foresight

- Irish courts have preferred the "subjective" approach to recklessness, but isn't really well developed / thought out in the cases. Cagney itself takes from the Model Penal Code which imports notions of objectivity - i.e. "'A person acts recklessly with respect to a material element of an offence when he consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that, considering the nature and purpose of the actor’s conduct and the circumstances known to him, its disregard involves culpability of a high degree". What we have is a subjective judgment of advertence, but not necessarily a subjective judgment of the risk. You could say that recklessness, therefore, is built around two principal planks; (1) a conscious (i.e. subjective) disregard of (2) a substantial and unjustifiable risk.

Lawstudent1

brian__foley wrote: »

You are entirely "cut out" for the law. Many people wouldn't grasp the difficulties and problems in this area enough to even formulate the points outlined above.

I can't get into the above right now in massive detail, but LRC's Report on Homicide: Murder and Involuntary Manslaughter (LRC 87 – 2008), might help you out.

If I was to give bullet point answers I'd say

- The way Irish courts went in the past tended to avoid the need to talk about "virtual certainty" - see LRC, at page 41 or see The Judge's Charge in Criminal Trials (Round Hall, 2008), at Chapter 12 (I think). The "natural and probable consequences" test tends to avoid problems with the machine gun example as outlined above. In short, it is arguable that this Irish approach to intention renders the need to resort to the principles used establish intention in “non-purposive” cases somewhat moot. This is simply because the Irish courts have not historically taken the leap beyond the “natural and probable consequences” test into any specific requirements about specific levels of foresight

- Irish courts have preferred the "subjective" approach to recklessness, but isn't really well developed / thought out in the cases. Cagney itself takes from the Model Penal Code which imports notions of objectivity - i.e. "'A person acts recklessly with respect to a material element of an offence when he consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that, considering the nature and purpose of the actor’s conduct and the circumstances known to him, its disregard involves culpability of a high degree". What we have is a subjective judgment of advertence, but not necessarily a subjective judgment of the risk. You could say that recklessness, therefore, is built around two principal planks; (1) a conscious (i.e. subjective) disregard of (2) a substantial and unjustifiable risk.

Thank you that helps a lot.

prinz

Lawstudent1 wrote: »

I am a current law student that is having some difficulty with the subject of mens rea. The frustration is getting to the point where I really don't feel that I am cut out for law....I would really appreciate any insight at all no matter how small as I'm at the end of my tether here and am focusing way too much time trying to grasp this one particular area and am neglecting other areas of law I need to study for my exams. Thanks

You could be overthinking it tbh. There is no black and white, cut and dried answer, so it's often best to take a more laid-back simple approach. From your post you seem well cut out for law either way, so best of luck in the exams.

btw R v Moloney... no matter how much law you go on to study this case will always be one of the most interesting IMO, just for the sheer mind boggling nature of the circumstances.

Victor

Lawstudent1 wrote: »

However in R v Maloney the court seemed to depart from the judgement in Hyam v DPP. This case involved a father and son who, both drunk, had a competion to see who could load, draw and shoot a gun faster. The defendant consequently shot his father and he claimed the consequences didn't occur to him due to his drunken state.

Was there any intent to harm / malicious intent present in this case. It sounds like a drunken shooting accident.

This contrasts with a case of an armed robber, whose statement of purpose is "Give me the money or I will shoot you". As the robber has planned the event, brought a weapon and issued a threat, it would be very difficult for him to argue* that it hadn't occured to him that someone might get hurt, whether by being shot or otherwise.


* Possible defences might be duress, insanity or inability to comprehend, but the typical armed robber either know exactly what he is doing or is coked up (no defence - if you do bad things when coked up, don't do coke).

prinz

Victor wrote: »

Was there any intent to harm / malicious intent present in this case. It sounds like a drunken shooting accident..

IIRC (although it is 8 years since I read it) they were indoors, sitting opposite each other in a living room, the younger man gets his gun locked and loaded and the stepfather basically goaded him into firing which the son (having been drinking) did. You don't need a malicious intention when you fire a shotgun at someone from a few feet away.... the outcome is a virtual certainty as they say. Intention should have been inferred from the actions. The murder conviction should have stood IMO.

The Law Commission in the UK return to this every so often and discuss intent and that.

MrPudding

Lawstudent1 wrote: »

But how is this satisfactory? Does the requirement for a level of virtual certainity mean that an armed robber who kills a police man by spraying a police car with bullets without an intention to kill but with an intention to ward off the pursuers be regarded as reckless? I mean the robber cannot be virtually certain that any of the bullets would actually hit any of the police and as he didn't intend them to either then surely he will be liable for reckless manslaughter and not murder?

My experience is limited, only studying law myself, and it is UK based. To address you question above, I don't think there is an issue. This whole problem of direct and oblique intention should not enter into most cases. In Woolin, where the Nedrick direction was approved with some minor changes, we are told that in the vast majority of cases the jury will not need direction as to what constitutes intention, oblique or otherwise, intention should have its everyday meaning. Your example would probably fall into this category.

In cases that are more difficult it may be necessary to give the jury direction, and if it is necessary it should be as per Nedrick. In your example above, I think that most people would instinctively know that by spraying a car with bullets, irrespective of what the robber might say about his intention at the time, it was virtually certain that death or serious harm would result. And would not require direction.

Whether it was virtually certain is something the jury should decide on, in light of all the facts of the case, and not just what the accused says he was feeling at the time.

MrP

Victor

prinz wrote: »

The murder conviction should have stood IMO.

Surely manslaughter as it wasn't planned?

MrPudding

Victor wrote: »

Surely manslaughter as it wasn't planned?

I don't think planned is a helpful word in this circumstance, that kind of implies pre-meditation. It was not intended.

MrP

MrPudding

prinz wrote: »

IIRC (although it is 8 years since I read it) they were indoors, sitting opposite each other in a living room, the younger man gets his gun locked and loaded and the stepfather basically goaded him into firing which the son (having been drinking) did.

I think they were having a quick draw competition... as you do...

prinz wrote: »

You don't need a malicious intention when you fire a shotgun at someone from a few feet away....

His argument was that he was not firing it at him...

prinz wrote: »

the outcome is a virtual certainty as they say.

A virtual certainty if you fire a shotgun at someone from a few feet, not so virtually certain if you are not pointing it at them.

prinz wrote: »

Intention should have been inferred from the actions. The murder conviction should have stood IMO.

Actions are only part of it. Intention, if it needs to be inferred, should be inferred from all the evidence, not just the actions.

MrP