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1.1.1 Introduction Any analysis of law begins with an examination of mens rea (state of mind) and actus reus (criminal conduct). These concepts are fundamental to understanding all offences and the idea of criminal liability generally. Mens rea alone will not amount to an offence; thinking about committing a crime is not committing a crime. In fact, the default position is that the application of the mind is essential for liability to exist as acts (or omissions) alone cannot amount to a crime unless they are accompanied by ‘mens rea’ at the time of the act (or omission). It is therefore vital to consider, among others, what is meant by terms such as ‘intent’ and ‘recklessness’. 1.1.2 Offences of ‘Specific’ and ‘Basic’ Intent Crimes of ‘specific’ intent are only committed where the defendant is shown to have had a particular intention to bring about a specific consequence at the time of the criminal act. Murder is such a crime as is burglary with intent (Theft Act 1968, s. 9(1)(a)). The common feature with these offences is that the intention of the offender is critical—without that intent, the offence does not exist. Other criminal offences require no further proof of anything other than the ‘basic’ intention to bring about the given circumstances. For example, the offence of maliciously wounding or inflicting grievous bodily harm (Offences Against the Person Act 1861, s. 20) or taking a conveyance (Theft Act 1968, s. 12(1)). The important difference between offences of specific and basic intent is that, in the case of the latter, recklessness will often be enough to satisfy the mental element. 1.1.3 Intent ‘Intent’ is a word often used in relation to consequences. If a defendant intends something to happen, he/she wishes to bring about a consequence. In some offences, say burglary under s. 9(1)(a) of the Theft Act 1968, the defendant’s intention may be very clear; he/she may enter a house as a trespasser intending to steal property inside. However, there will often be consequences following a defendant’s actions that he/she did not intend to happen. What if, in the above burglary, the householder came across the burglar and suffered a heart attack? It might be reasonable to suggest that it was the defendant’s behaviour that had brought about the situation (see chapter 1.2). The defendant, however, may argue that, although he/she intended to break in and steal, there had never been any intention of harming the occupant. At this point you might say that the defendant should have thought about that before breaking into someone else’s house. This brings in the concept of foresight, a concept that has caused the courts some difficulty over the years—for several reasons. (p. 2) First, there is the Criminal Justice Act 1967 which says (under s. 8) that a court/jury, in determining whether a person has committed an offence: Secondly, there is the body of case law which has developed around the area of ‘probability’, culminating in two cases in the House of Lords (R v Moloney [1985] AC 905 and R v Hancock [1986] AC 455). Following those cases it is settled that foresight of the probability of a consequence does not amount to an intention to bring that consequence about, but may be evidence of it. So you cannot claim that a defendant intended a consequence of his/her behaviour simply because it was virtually certain to occur. What you can do is to put evidence of the defendant’s foresight of that probability before a court, which may infer an intention from it. Such an argument would go like this: Whether or not a defendant intended a particular consequence will be a question of fact left to the jury (or magistrate(s) where appropriate). In murder cases (see chapter 1.5), where death or serious bodily harm was a virtual certainty from the defendant’s actions and he/she had appreciated that to be the case, the jury may infer that the defendant intended to bring about such consequences (R v Nedrick [1986] 1 WLR 1025). Therefore, where the defendant threw a three-month-old baby down onto a hard surface in a fit of rage, the jury might have inferred both that death/serious bodily harm was a virtual certainty from the defendant’s actions and that he must have appreciated that to be the case; they should therefore have been directed by the trial judge accordingly (R v Woollin [1999] 1 AC 82). Finally, the relevant intent may have been formed, not of the defendant’s own volition, but influenced in some way by other external factors. An example is where the defendant’s thinking is affected by duress (as to which see para. 1.4.5). 1.1.4 Recklessness Recklessness is a state of mind that is relevant to a large number of crimes and is essentially concerned with unjustified risk-taking. Following the case of R v G and R [2003] UKHL 50, the approach taken to the interpretation of the word ‘reckless’ is that it will be ‘subjective’. The requirements of subjective recklessness can be found in the case of R v Cunningham [1957] 2 QB 396 and are satisfied in situations where the defendant foresees the consequences of his/her actions as being probable or even possible. In G the House of Lords held that a person acts recklessly with respect to: To establish recklessness therefore requires consideration of the degree of risk that is actually foreseen by the defendant of which he/she is aware and whether it was reasonable. (p. 3) 1.1.4.1 Awareness Here we are concerned with what was going on in the mind of the defendant—were they aware of the risk? For example, in G the defendants were two children (aged 11 and 12) who set fire to some newspapers in the rear yard of a shop premises whilst camping out. The children put the burning papers under a wheelie bin and left them, expecting the small fire to burn itself out on the concrete floor of the yard. In fact, the fire spread causing around £1,000,000 of damage. The children were convicted of criminal damage under the former law (‘objective’ recklessness) on the basis that the fire would have been obvious to any reasonable bystander. The convictions were quashed by the House of Lords who reinstated the general subjective element described above. A reasonable bystander might well have been aware of the risk of such activity—the children were not. 1.1.4.2 Reasonableness The risk a defendant is aware of may be small but that does not automatically mean that it is reasonable to take that risk. Each situation will be decided on its own merits but whether the risk is reasonable or not will be decided by the court—not the defendant. What this does is to introduce an objective element into the recklessness equation but even though that is the case, it must be stressed that recklessness is still subjective—the key question is whether the defendant was aware of the risk. 1.1.4.3 Different Crime = Different Risk Depending on the crime, the nature of the risk the defendant needs to be aware of will change. For example, to commit an offence under s. 20 of the Offences Against the Person Act 1861 (wounding or inflicting grievous bodily harm (see chapter 1.9)), the defendant must unlawfully and recklessly wound or inflict grievous bodily harm on the victim. Here ‘recklessness’ means that the defendant was aware of the risk that some harm would befall the victim. If we consider simple criminal damage under s. 1(1) of the Criminal Damage Act 1971 (see chapter 1.15) then the risk the defendant would need to be aware of to be reckless is that property belonging to another would be damaged or destroyed. 1.1.5 Malice The term ‘malice’ is particularly relevant to ss. 18, 20, 23 and 24 of the Offences Against the Person Act 1861 (offences relating to grievous bodily harm/wounding and poisoning). It should not be considered as one relating to ill will, spite or wickedness. ‘Malice’ requires either the actual intention to cause the relevant harm or at least foresight of the risk of causing some harm (though not the extent of the harm) to a person. Example D throws a coin at V thinking that this will result in a small cut to V’s forehead (so D has foresight that some harm, albeit minor, will befall V as a result of D’s actions). The coin actually strikes V in the eye, causing V serious injury and the loss of sight in the eye. It does not matter that the harm that D foresaw was minor compared to the resultant harm caused to V. D has committed a s. 20 grievous bodily harm offence because D has behaved ‘maliciously’—D saw the risk of some harm befalling V but went on to take the risk anyway. (p. 4) 1.1.6 Wilfully ‘Wilfully’ is mentioned in offences such as child cruelty (s. 1 of the Children and Young Persons Act 1933). The term ‘wilfully’ should not be understood in a literal sense as meaning ‘deliberate’ or ‘voluntary’. It is taken to mean intentionally or recklessly (subjective) (Attorney-General’s Reference (No. 3 of 2003) [2005] QB 73). 1.1.7 Dishonestly The expression ‘dishonesty’ is defined for certain purposes in s. 2 of the Theft Act 1968. However, it has also been extended by common law decisions of the courts (as per the decision in Barlow Clowes and Royal Brunei Airlines) and it is critical, in dealing with offences requiring proof of dishonesty (such as theft or fraud), that you identify the nature of the state of mind required and the ways in which it can be proved/disproved. For a full discussion of this concept, see chapter 1.13. 1.1.8 Knowing The term ‘knowing’ is relevant to several offences such as s. 22 of the Theft Act 1968 (handling stolen goods). One knows something if one is absolutely sure that it is so. Since it is difficult to be absolutely sure of anything, it has to be accepted that a person who feels ‘virtually certain’ about something can equally be regarded as ‘knowing’ it (R v Dunne (1998) 162 JP 399).