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Criminal Law Blame

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Title: Criminal Law Blame

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Criminal Law Blame

Steve Uglow
Kent Law School

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Act and Intent

Basic principle is that conduct (or causing a
consequence) alone should not be enough -requires
state of mind which is blameworthy
D must normally be shown to have relevant mental
element at the time that act comprising offence
is committed
This mental element is a FACT that has to be
proved
Actus non fit reus nisi mens sit rea
the act is not to be regarded as guilty unless
the mind is also guilty

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Blameworthy states of mind

Different offences have different mental
elements
for example, some require INTENT and others
merely FORESIGHT
Intention to act or to cause a consequence -
this is purposive conduct. If offence requires
intent, nothing less will do Whybrow
Foresight or awareness that there is a risk of
acting or causing the consequence - Cunningham
1957
with intent and foresight, court is interested in
the actual state of Ds mind
we refer to this as subjective state of mind

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Blameworthy states of mind

Other offences do not require subjective states
of mind at all
some require NEGLIGENCE
where D does not recognise the risk of her acts
but a reasonable prudent person would have
recognised it
driving without due care and attention - s.3
RTA88
some require GROSS NEGLIGENCE
manslaughter
with these, court is not interested in the actual
state of Ds mind but in assessing what a
reasonable person might have thought
we refer to this as objective state of mind

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Blameworthy states of mind

There may be other aspects of the defendants
mental state
where offence requires the accused knows or
believes in certain circumstances
handling stolen goods prosecution must show
that D was in possession of the goods, knowing or
believing them to be stolen - Theft Act 1968 s.22
bigamy ..whosoever, being married, shall marry
any other person, during the life of the former
husband or wife - OAPA 1861 s.57
nb intent and knowledge are different
D intends to go through a ceremony of marriage
but knows that she is already married to someone
else

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Where blame is not in issue

Strict liability offences do not require
prosecution to prove ANY mental state
large number of statutes do not use language of
knowingly, intentionally etc
in theory common law has presumption of mens rea
Sweet v Parsley (1970) - s.5 Dangerous Drugs Act
1965
involved in management of premises used for
smoking cannabis - House of Lords held D had to
know
but courts often exempt prosecution from need to
prove mens rea - ie impose strict liability
whether strict liability depends on the courts
construction of statute Gammon (1985), Lim Chin
Aik (1963)

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Strict liability

Surely strict liability is against principle of
legality? natural justice? common law?
true but remember parliamentary sovereignty
but parliament must act in accordance with ECHR?
therefore breach of Article 6(2) presumption of
innocence?
not necessarily - ECHR does accept strict
liability in some cases eeg Salabiaku v France
(1988) - relates to seriousness of offence and
severity of punishment

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Reversing burden of proof

Strict liability related to another technique
reversing burden of proof - D must proof
innocence
may contravene Article 6 ECHR - right to a fair
trial
also at common law, Privy Council in Lee
Kwong-kut (1993)
possessing cash suspected of being stolen. D had
to disprove guilt - prosecution should have
responsibility of proving essential elements of
offence
see House of Lords in Lambert 2001
s.28 Misuse of Drugs Act 1971 - D has to prove
that did not know controlled drug - but
evidential burden only

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Which mental state applies?

Subjective, objective, strict liability????
no single standard for all offences - offence
might
require intention OR
sufficient to show gross negligence OR
be an offence of strict liability
requires close reading of the statute creating
the offence OR of the common law

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Which mental state?

But different mental states might apply to
different elements of the SAME offence!
s.55 Offences Against the Person Act 1861
whosoever shall unlawfully takeany unmarried
girl being under the age of 16 years out of the
possession and against the will of her father or
mother

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Which mental state?

Prince (1875) was convicted under s.55 - his
defence was that he believed the girl was over 16
and that reasonable people would have also held
that belief
note different elements of offence
take girl must be an intention to take the girl
(defence if she smuggled herself into your car?)
out of parental possession must know that she
was in the possession of her parents
under 16 but D is strictly liable as to age -
reasonable belief is no defence

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A further thought.

In analysing a situation, do not say Thats
intention or Thats grossly negligent.
Mental states are not abstractions but relate to
an act or consequence
intention to do or cause what?
negligence as to what outcome?
knowledge of what circumstance?

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Mens rea and motive

Do not confuse mens rea with motive
reason why D commits the act is motive
logically separable from whether D intended act
or consequence or foresaw the consequenceDoctor
who prescribes pain-killers to terminally ill
patient and aware that effect is to shorten life
motive is to lessen pain
recognition that act shortens life - thus
intending to kill?
motive provides circumstantial evidence that D
committed offence and had necessary mens reaD
has taken out large life insurance policy on wife
shortly before accidental shooting

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Malice aforethought

Concentrate on the mens rea for murder - known as
malice aforethought
intent to kill or cause grievous bodily harm
case law is applicable to any other offence which
requires intention as an element
3 issues
what constitutes intent?
why is intent to cause GBH sufficient?
should the standard be objective or subjective?

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1. Intent versus Foresight

A person may kill another
with the purpose of ending that persons life
not wishing Vs death but being certain that
death will result
not wishing Vs death but believing it highly
probable that death will result
not wishing Vs death but believing it probable
or maybe possible that death will result
without realising that theres any risk at all
Which state is sufficient for malice
aforethought?

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Digression transferred malice

Another general principle
that where you aim to shoot A but miss and hit
and kill B by accident, you are still liable to
be convicted of murder
this is the doctrine of transferred malice -
Latimer (1886)
NB the harm caused must coincide with the malice
being transferred
see AGs Reference 3/94 (1997) and Slimmings
(1999) Crim LR 69

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1. Intent versus Foresight

Back to intent
Hyam (1976)
accused sought to frighten lovers new mistress
to leave area. D realised that serious harm was a
probability
is foresight of high probability of death or
GBH
a) equivalent to intent? OR
b) alternative form of malice aforethought?

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1. Intent versus Foresight

Previously Court of Appeal had treated intent
as specific and purposive - foresight was not
enough Belfon (1976)
but HL in Hyam (1976) held that foresight of
high probability of death or GBH was equivalent
to intent
reconsidered by HL in Moloney (1985) and Hancock
(1986)
murder requires intent and foresight is not
enough

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1. Intent versus Foresight

But in murder trial, often evidence that D
foresaw death or serious harm, albeit not wishing
it.
how is such evidence to be left to the jury?
Jury must find as a fact either that D intended
to kill or intended to cause GBH
BUT they are entitled to infer from evidence of
foresight that D had such an intent

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1. Intent versus Foresight

Nedrick (1986) in Court of Appeal
D might intend a result albeit not desiring it
Jury must consider
how probable was the consequence?
did D foresee the consequence?
if D did NOT foresee, D cannot have intended it
if D did foresee but thought risk slight, jury
might easily infer that D did not intend it
if D foresaw death as virtually certain, this is
fact from which jury may infer D intended that
death

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1. Intent versus Foresight

Woollin (1998)
accused throws 3 month old son onto hard
surface
House of Lords approve Nedrick but simplifies
jury are not entitled to find necessary intent
unless consequence was virtual certainty AND
D appreciated that this was the case

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2. Intent to cause GBH

General principle of correspondence
mens rea should correspond to actus reus
Murder is exception to this - intent to cause GBH
is sufficient mens rea for murder Cunningham
(1982) but read Diplock in Hyam

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2. Intent to cause GBH

Explanation to be found in the history
common law always treated a killing in the
course of a felony (eg burglary) as murder
regardless of any intent to kill - this was the
felony/murder rule
this rule was abolished by s.1 Homicide Act 1957
which said that a killing in the course of
another offence was not murder unless D possessed
the normal malice (express or implied) for murder

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2. Intent to cause GBH

in Vickers (1957) D argued that killing was in
the course of another offence (I.e. GBH) and
there was no intent to kill. Court of Appeal held
that intent to cause GBH was implied malice
but what is being implied? Can only be intent
to kill - thus CA is engaged in the same logical
reasoning which existed in the felony murder rule
and which was abolished in 1957
but were stuck with it! Cunningham

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3. Subjective or Objective?

In Smith (1961), the House of Lords held that a
person is guilty of murder where
a reasonable person would have seen death as the
natural and probable consequence
effect was that Ds mental state was irrelevant
- judged objectively by what a reasonable person
would have contemplated - irrebuttable evidential
presumption

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3. Subjective or Objective?

Criminal law dithers between objective and
subjective tests depending on offence but for
murder?
Smith is overturned by s.8 Criminal Justice Act
1967A court or jury.shall not be bound to
infer that he intended or foresaw a result by
reason only of its being the natural or probable
consequencebutshall decide whether he did
intend or foresee that result by reference to all
the evidence...

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3. Subjective or Objective?

s.8 mentions .by reference to all the evidence
suggests that jury must decide as a fact whether
D possessed the necessary intent but may use
evidence that a reasonable person would have
intended the result as a guide. This would be a
rebuttable inference (see Byrnes judgment in
Court of Appeal in Smith)
Despite wording of s.8, courts direct juries only
purely subjective lines without reference to what
a reasonable person may have intended.

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The Age of Innocence - by Edith Wharton
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The Age of Innocence ?????? 18701920
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New Woman
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The Summary (1)

Well-ordered Life
Encounter
Defended
Realized
Dilemma

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The Summary (2)

Struggling
Marriage
Re-Encounter
Frustrating

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The Summary (3)

Domestic Life
Happiness(?!)

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The Author (1)

Edith Wharton
1862-1937
Edith Newbold Jones to George and Lucretia Jones
was born in an aristocratic New York family
was privately educated at home and in Europe by
the governess and the tutor.

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The Author (2)

1885, Wharton married Teddy Wharton, who was
twelve years older than she was .
1913, divorced
1900-1938, created a lot of novels.

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The Author (3)

1905, The House of Mirth marked the true
beginning of her career.
1911, Ethan Frome
WWII, traveled extensively by motorcar helped
with refugees in Paris, and only once again back
to America for the Pulitzer prize for The Age of
Innocence.

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The Author (4)

The Age of Innocence was considered as her best
novel, Masterful portrait of desire and betrayal
set in the New York of her youth
A historical novel, and it was titled originally
as Ole New York. This novel also describes her
own adolescence.
Edith Wharton hold a salon with the gifted
intellectuals like Teddy Roosevelt, F. Scott
Fitzgerald and Ernest Hemingway.
Henry James also influenced her a lot.

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The Analysis (1)

The Meaning of The Novel, The Age of Innocence
The original source is the distorted expectation
provided by the whole society to both men and
women.
Men be expected to be some specific
professional job.
no fail can be made in their duties
Women innocent wives, mothers and daughters.

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The Analysis (2)