Criminal Law

1
Criminal Law

• These slides are available from the Criminal Law
  Web CT site

2
The Mental Element in Crime

• The general rule
• Offences require proof of conduct (actus reus)
  and criminal intent (mens rea)
• Some offences do not require proof of criminal
  intent (strict liability)

3
The Mental Element in Crime

• The moral content of the mental element?
• Degrees of blameworthiness
• Moral neutrality of the mental element
• Descriptive approaches (e.g. intention,
  recklessness, knowledge)
• Normative approaches (e.g. wicked recklessness,
  wicked intent, evil intent)

4
Forms of the Mental Element

• Humes idea of dole that corrupt and evil
  intention, which is essential to the guilt of
  any crime the act must be attended with such
  circumstances, as indicate a corrupt and
  malignant disposition, a heart contemptuous of
  order, and regardless of social duty

5
Intention

• An ordinary word, not requiring definition
• Sayers v H.M. Advocate
• Intention in terms of purpose
• Intention in terms of foresight
• Foresight of certainty
• Foresight of probability
• R v Hancock and Shankland
• R v Nedrick
• Re A (Children) (Conjoined Twins)  2001 2 WLR
  480  

6
Intention Draft Criminal Code

• 1     Intention
• (1) For the purposes of criminal liability, and
  without restricting the ordinary meaning of
  intention?
• (a) a person is treated as intending a result
  of his or her act if, at the time of the act, the
  person foresees that the result is certain or
  almost certain to occur

7
Recklessness

• Recklessness connotes risk-taking
• Two questions
• What kind of risks?
• Does it require conscious risk-taking
• Allan v Patterson
• RHW v H.M. Advocate
• Carr v H.M. Advocate

8
Recklessness Draft Criminal Code

• 1     Recklessness
• For the purposes of criminal liability ?
• (a) something is caused recklessly if the person
  causing the result is, or ought to be, aware of
  an obvious and serious risk that acting will
  bring about the result but nonetheless acts where
  no reasonable person would do so
• (b) a person is reckless as to a circumstance, or
  as to a possible result of an act, if the person
  is, or ought to be, aware of an obvious and
  serious risk that the circumstance exists, or
  that the result will follow, but nonetheless acts
  where no reasonable person would do so
• (c) a person acts recklessly if the person is, or
  ought to be, aware of an obvious and serious risk
  of dangers or of possible harmful results in so
  acting but nonetheless acts where no reasonable
  person would do so.

9
Knowledge

• Many offences require proof of knowledge
• In theft the accused must know that the property
  belongs to someone else
• In reset the accused must know the property is
  stolen
• Wilful blindness can satisfy the requirement of
  knowledge
• Latta v Herron

10
Knowledge

• Draft Criminal Code, s. 11
• 1     Knowledge
• For the purposes of criminal liability, and
  without restricting the ordinary meaning of
  knowledge, a person is treated as knowing of a
  circumstance if the circumstance exists and?
• (a) the person would have known of it but for a
  wilful and unreasonable failure to allow that
  knowledge to be acquired or
• (b) the person thinks that the circumstance
  almost certainly exists but nonetheless proceeds
  where no reasonable person would do so.

11
Proving mens rea

• How do we prove mens rea?
• Can be done by direct proof (e.g. admission by
  the accused)
• More usually, it is a matter or inference from
  the surrounding circumstances
• But sometimes it is presumed
• Miller and Denovan
• Broadley v H.M. Advocate

12
Subjectivity and Objectivity

• What matters
• The actual state of mind of the accused?
• The (presumed) state of mind of the reasonable
  person?
• Subjective mens rea the state of mind of the
  accused
• Objective mens rea the state of mind of the
  reasonable person

13
Motive

• Motive is generally said to be irrelevant
• A kills his aged aunt for her money
• B kills his dying wife because she cannot stand
  the pain
• Palazzo v Copeland
• But motive may be relevant to defences

14
Transferred mens rea

• A fires at B, intending to kill him.
• B ducks, and the shot hits C who is killed
• Is A guilty of
• Murder?
• Something less than murder?
• Nothing at all?

15
Transferred Mens Rea Draft Criminal Code

• 9     Intention
• (1) For the purposes of criminal liability, and
  without restricting the ordinary meaning of
  intention?
• (b) a person who intends to harm a person and
  harms another person instead is treated as
  intending to harm the other person and
• (c) a person who intends to damage property and
  damages other property instead is treated as
  intending to damage the other property.

16
Error

• Mistakes of law
• Mistakes of the criminal law R v Bailey
• Mistakes of the civil law
• Dewar v H.M. Advocate
• R v Smith (David)
• Mistakes of fact
• General rule Accuseds guilt is determined
  according to the facts as she believed them to be

17
Error

• Must mistakes be reasonable?
• Mistakes which affect mens rea or actus reus
• Dewar
• Meek
• Jamieson
• Mistakes which affect defences
• Owens
• Jamieson

18
Error Draft Criminal Code

• Section 28
• Mistakes of fact s. 28(1)reproduces the common
  law
• S. 28(2) provides for a limited defence of
  mistake arising from reliance on official advice,
  where it is reasonable in the circumstances for
  the person to rely on that belief.