Mens Rea Dr. Maris Köpcke Tinturé

Category Subcategory Objective? Subjective?

Intent 'Core meaning' (ends or means)

Subjective (Objective can be evidence: Crim.J.Act 1967, s8)

'Virtual certainty' (Moloney, Nedrick, Hancock and Shankland, Woollin, Re A)

Objective (inseparable consequence) Subjective

• ‘Moral elbow room’ (‘entitled to find’): special considerations? (Matthews)

• Criticism: should be only subjective

Recklessness Cunningham (good law) (Stephenson, R v G and R)

Objective (unreasonable risk) Subjective

Caldwell (no longer good law) (Elliott)

Objective (unreasonable risk)

'Middle way'? Objective • Good reason for failing to see risk?

Subjective broadened to include: • 'At the back of his mind' (Parker) • Voluntary intoxication

Negligence Gross Objective • Reasonable for whom? • Do D’s characterics, such as age, blindness or hearing

impairment, count? (Caldwell was totally objective, hence Elliott) • D’s special skills count (Adomako)

Ordinary

Strict Liability

Question 1: Statutory construction?

MR presumption (Sweet v Parsley) Defeated if MR reading 'unreasonable': expressly SL or 'necessary implication' (B, K):

• other sections or statutes • 'truly criminal', severity of punishment (but see R v G) • prevent serious danger, eg pollution, and specialised business

activity (Alphacell, Empress Cars) • effectively discourage (Lim Chin Aik)

Question 2: If MR, which? (B, K)

See below MR regarding circumstance (compare Prince: no MR, ie strict liability, regarding age)

MR regarding circumstance

Knowledge Positive (and correct) belief that C obtains

'Wilful blindness' (Westminster)

Deliberate non-enquiry

'Reckless knowledge' Foresight of a risk that C might obtain • Extended by B v DPP to include cases where D has no belief

either way (prosecution only needs to prove that D lacks a positive ('honest') belief that C doesn't obtain)

Mistake of fact (Morgan, B, K)

Positive ('honest') belief that C doesn't obtain: • Subjective (= reasonable or unreasonable belief) • v Tolson: objective ('reasonable' belief) • Note: Morgan remains the standard for mistake of fact, but

ironically it’s no longer good law about the crime it was about (sexual offences, after SOA 2003)