Student number: 8963

Question 1

The question requires a detailed explanation on the both ‘intention’ and ‘recklessness’ in
the mental element of crime. The mental element or known as mens rea is part of a
requirement in building a criminal liability. The standard of proof for mens rea is always high
because of the distinction between intention and recklessness and to prove correctly
requires comparing and contrasting between these two states of mind. Mens rea will be
proven only if the defendant had either intended for their actions to result in a criminal act
and have foreseen for such circumstances to happen in relation to their actions or recklessly
created a situation with or without knowing that the consequences would have resulted
from their actions.

There has been much debate over the years as to which test is to be used to determine the
intention of a person for their criminal conduct. The test for intention is used for much
heavier offences such as homicide and manslaughter. For example, a scenario where the
defendant had burned his neighbours house down, the prosecution has to prove that the
defendant had intended to light a fire on petrol and the defendant had intended to kill or
cause grievous bodily harm to his neighbour. There are examples of crimes which can only
be executed having intention as the element of fault which is known as specific intent
crimes. Murder is a crime of specific intent where the defendant had only one thought,
which is to cause a death or inflict grievous bodily harm to the victim. This definition applies
to direct intent as well as the defendant had intended exactly for the consequences to
occur.
Oblique intent is where a natural consequence is resulted from a voluntary movement of
muscles from the defendant who had foreseen for such circumstances to occur. However,
the difference between direct intent and specific intent is where direct intent is the
intention to commit an act which would lead to the consequences where oblique intent is
when a defendant had committed an act however had not necessarily intended for the
result but could have foreseen the result of their actions. In the case of DPP v Hyam, the
facts state that before the relationship had come to an end, the defendant Hyam was in a
relationship with a male. Ms Booth, her ex-new boyfriend's fiancée, had made Hyam
envious. She had poured gasoline into Booth's letterbox and lit it with a rolled-up
newspaper. Hyam drove home without alerting anyone to the fire. Two little toddlers were
murdered in the ensuing fire. Hyam was found guilty of murder. She stated at trial that she
just intended to scare Booth and not to kill anyone, as the mens rea of murder requires.
Hyam was found guilty and later appealed. An appeal to the House of Lords was authorised
by the Court of Appeal. Her appeal was refused due to the fact that even if she had not
intended for the consequences to happen, she should have been able to foresee that the
fire would have created a situation grave enough to result in the death or grievous bodily
harm of another person.

In the case of DPP v Morgan, following a brutal attack, the three appellants were found
guilty of rape. They had spent the night drinking with a fellow RAF officer, who invited them
back to his house to have sexual relations with his wife while he watched. According to the
appellants, he informed them that his wife would assent, despite her protests, in order to
increase her sexual desire. The circumstances were such that the wife had made it plain that
she did not consent, and she had suffered physical injuries that necessitated hospitalisation.
The jury had been instructed by the trial judge that the defendants' belief in consent had to
be reasonable. They were found guilty by the jury. It was held that reasonable belief is not
enough as the belief must be a genuine and honest one.

In the case of R v Woolin, the jury has to be directed in the way that, was the
consequences of the defendant’s act a natural and probable one and has the defendant had
foreseen that their actions would have the natural result of the consequences. However, it
is to be said that the term ‘natural and probable’ to be an endless scope of possibilities
where a jury would have a different standard of expectation as to how a consequence could
be considered as natural as to a different jury.

It was then established in the case of R v Nedrick that the consequences resulting from the
defendant’s actions must be a virtually certain one. Lord Lane CJ stated that the jury should
be directed not to make an inference on the intention, instead identify whether the
consequence of the defendant’s actions had to be virtually certain. In R v Woolin, the test
for intention had been equated where if the consequences resulting from the defendant’s
actions was a virtual certainty and if the defendant had foreseen that the consequences for
his action was a virtually certain one, the defendant indeed had intended for the result
leading from his actions. The defendant however must be aware that his actions would
bring upon a substantial risk.

To explain recklessness, the state of mind of the defendant can vary from intending for a
result to happen or not, however the test of foreseeability for recklessness is different than
of intention. In the case of R v Cunningham, in order to take the money from a gas metre,
the appellant removed it from the wall. Gas escaped as a result of this. The gas leaked into
the neighbouring property through minor holes in the wall, poisoning his future mother-in-
law who was sleeping. He was charged under section 23 of the Offences against the Person
Act 1861, which states, "Whoever shall unlawfully and maliciously administer to or cause to
be administered to or taken by any other person any poison or other destructive or noxious
thing, so as to endanger the life of such person, or so as to inflict any grievous bodily harm
upon such person, shall be guilty of felony." It was then stated by the judge there was a
misdirection in the jury. The judge stated that rather than directing the jury on malice which
can only result from an action, malice should be treated as a state of mind instead. As it
could be seen on the facts, the defendant had not foreseen that his minor actions of theft
would lead to endangering another person. The test needs the requirement on whether the
defendant had intended for the particular harm or if the reckless act of the defendant
should have constituted to the harm. The case of R v Cunningham is considered a subjective
test of recklessness as the test identifies the state of mind rather than conduct.

The case for R v Caldwell however is an objective test for recklessness. In Caldwell, The
appellant was employed at a hotel and held a hatred against his boss. He went to the hotel
one night after consuming a considerable amount of alcohol and started a fire. At the time,
the motel had ten guests sleeping in it. Fortunately, the fire was spotted and identified
quickly, and no one was injured. The appellant was found guilty of aggravated criminal
damage under section 1(2) of the Criminal Damage Act 1971, and he appealed the amount
of carelessness necessary. The defendant claimed that he had not considered the possibility
of life-threatening situations as a result of his intoxication. The courts upheld the decision
and had established a test specifically for property damages where the defendant had acted
recklessly creating a risk of the damage of a property as well as not comprehending the
extent or the possibility of that risk however still executed the act.

In conclusion, the tests surrounding intent and recklessness have high standard of proof as
to determining a mere conduct. This is only because a single conduct could have been
executed by people with entirely different states of minds. Therefore, the objective and
subjective test is used to determine the state of mind behind a defendant when he or she
commits a criminal act. As it was evident in all the cases, the judges had not directed the
jury’s into coming to a mutual verdict as every jury would use their own morals and
principles into understanding the state of mind of the defendant.

Question 3
 The issue of the case at hand is whether Ben is liable for criminal homicide for the death of
Annie. The definition of murder according to Sir Edward Coke unlawful killing of a human
being in rerum natura under the Queen’s peace with . In order for the criminal liability to be
successful there are certain elements to be satisfied which is actus reus being the element
of action, mens rea being the mental element. The actus reus of homicide is the killing. In
the case of Smith, the facts is that the defendant accelerated when the police officer told
him to stop the car, which was filled with stolen goods. As a result, the police climbed on to
his vehicle. The defendant manoeuvred the car swiftly enough for the officer to tumble off.
The cop eventually fell off and was killed by the oncoming car. As a result, the accused was
charged with murder. The conviction for murder is upheld due to the fact that any person
aside from someone who fits the requirements of insanity under the McNaughten rules
would be able to foresee that the circumstances of creating a dangerous situation that
would result from either death or grievous bodily harm. The case also established that the
original wound must be an operating and substantial cause in order to establish the original
wound was in fact the cause of death. On the facts, Brian’s act of stabbing Annie was the
substantial cause to Annie’s death.

Next, we have to establish the mental element of the crime. The mens rea derived from Sir
Edward Coke’s definition is malice aforethought. The term malice aforethought simply
means a premeditated intent to cause death or grievous bodily harm according to R v
Cunningham. In R v Cunningham, it is to be established that the jury should be directed that
they are to use the correct test to establish malice as an intent to cause or create a situation
resulting harm as well as the foreseeability of the harm occurring from the situation created
by the defendant rather than assessing that malice is derived from one’s actions. This is
known as the ‘Cunningham Recklessness’ test. In the case of R v Moloney, the facts stated
that the defendant and his stepfather, with whom he had a close and affectionate
connection, were in a drunken race to determine who could load a shotgun fastest.
Moloney did win and his stepfather dared him to shoot the rifle. He did so resulting in the
killing of his stepfather. Moloney was charged with and found guilty of murder. The courts
upheld the appeal from Moloney where it couldn’t be established that there was no intent
to cause death or grievous bodily harm. The test of foreseeability will prove that any intent
other than to cause death or grievous bodily harm would merely be a natural consequence
of the defendant’s act which will be seen as an oblique intent. However, in R v Woolin
where the jury has to be directed in such that death or grievous bodily harm must be a
substantial risk to determine the defendant’s intentions and the consequences must have
been a virtual certainty as per Nedrick. The current test for intention can be seen in the case
of R v Nedrick where the defendant must have foreseen that death or grievous bodily harm
would be virtually certain resulting from their actions. On the facts, Brian would be able to
foresee that the death of Annie resulting in the act of stabbing with a knife was a virtual
certainty. Therefore, the mental element of murder is satisfied.

Next, was there a break in the chain of causation that had shifted the original wound to
another operative cause of death. Causation simply means that the act of the defendant is
the substantial and operating cause of the death of the victim. A break in the chain of
causation would shift the operating cause due to an intervening factor. Causation can be
proved in two ways which are the factual and legal causation. Factual causation is where if
not for the defendant’s act, would the result lead to the death of the victim. This is known
as the but-for test. The 'but for' test was demonstrated in the case R v Pagett, where the
question was whether the hostage would have perished if it hadn't been for the defendant's
actions. The following was established as the factual causation which is, if the accused had
not fired first, the police officers would not have fired their firearms, and the hostage would
not have perished. On the facts, but for Brian’s actions stabbing Annie, would it have
resulted in the death of Annie. The answer is no. This is because the operating cause in the
stabbing had shifted to the allergy reaction faced by Annie from the contrast dye.

Since there is a break in the chain of factual causation, can legal causation prove otherwise.
Legal causation would establish if there was an intervening factor that had shifted the
operating cause from the original wound. This is known as novus actus interveniens.
However, there can be more operating causes as well as the main operating cause from the
defendant’s actions would still not negate the defendant’s liability. In the case of R v
Roberts, it was said that it makes no difference whether the defendant could predict the
victim's acts if they were a natural result of the defendant's behaviour. There would be a
break in the chain of causality only if the victim's conduct were so bizarre or unexpected
that no reasonable person could have predicted them. In the case of R v Blaue, negligent
medical treatment would still not negate the liability of the defendant however, only if the
medical treatment was palpably wrong that it had shifted the operating cause from the
original wound to the negligent treatment. On the facts, it could be said that the contrast
dye had shifted the operative cause from the original wound however despite getting no
treatment whatsoever would have still resulted in the death of Annie, making the contrast
dye one of two operating causes therefore making Brian solely liable for the death of Annie.

Since the offence of homicide has been proven, is there any defences that Brian can use
to negate his liability from murder to voluntary manslaughter? There are two known
defences which could aid Brian which are loss of self-control and diminished responsibility.
Loss of self-control is defined under section 54 of the Coroners and Justice Act 2009 is an
act or omission of the defendant being a party or killing of the victim resulting in loss of self-
control however with a requirement of qualifying triggers where a person of the same age,
sex or with a reasonable degree of tolerance would have reacted similarly. The qualifying
triggers can be derived from a fear of a grave character or if the defendant had been
seriously wronged. On the facts, Brian always had known of Annie’s affairs. In the case of R v
Clinton and Parker and Evans, it is said that sexual infidelity or sexual jealousy will not
constitute as a qualifying trigger. On the facts, Brian had acted out of sexual jealousy due to
the fact that Annie has lovers aside from Brian, therefore the defence of loss of self- is not
sufficient.

The defence of diminished responsibility is defined under section 52 of the Coroners and
Justice Act the killing resulting from the defendants recognised medical condition which has
substantially impaired the defendants ability to act in a way due to the defects caused by
the medical condition. There must be a valid explanation as to the defendants actions and it
is to understand the nature of the defendants conduct, to form a rational judgement and to
exercise self-control. On the facts, Brian was stated to be suffering from depression. In the
case of R v Gittens, As a result, the judge's instruction to the jury that the diminished
responsibility defence must fail until the jury is convinced that the defendant would have
killed if he hadn't consumed alcohol is incorrect. Such a directive is erroneous because it
fails to recognise that the defendant's mental impairment caused by a cause stated in the
subsection, as well as the effect of the alcohol, could both contribute to the defendant's
mental responsibility for the killing. On the facts, Brian had not been intoxicated and had
acted without knowing the nature of his conduct therefore the defence of diminished
responsibility will negate his liability from murder to voluntary manslaughter.

Question 4

The question involves the liability for rape committed by Charles to Donna, Ella and Fiona.
The definition of rape under section 1 of the Sexual Offences Act 2003 is the penetration of
the mouth, anus and vagina with a man’s penis, however the victim does not give his/her
consent to the penetration and the defendant has no reasonable belief of the consent. The
actus reus of rape is the penetration with a penis. Penetration is perceived as a continuing
act from insertion to withdrawal. In the case of R v Kaitamaki, the defendant had raped his
victim on two separate occasions in the same day however the defendant did have
reasonable belief the victim was consenting at first but subsequently the victim had not
consented while penetration as the defendant believed so. The conviction of rape was held
as penetration was a continuing act and penetration has to be withdrawn once consent is
absent. On the facts, Charles had completed penetration up and until withdrawal with
Donna. Since actus reus is proven, the mental element has a stronger burden of proof as
well. The mens rea is derived from the definition as lack of consent and the defendant had
not reasonably believed there was consent. The standard of proof is extremely high as
courts in the past have failed to assess the true mental element of the defendant and
instead had not passed justice for victims of rape considering promiscuity and loose morals
as part of judgements. In the case of Olugboja, the victim had stated that she had not
consented despite not resisting or telling to stop. There are presumptions which govern the
law on identifying the mental element of consent which are the conclusive presumptions
and evidential presumptions. Evidential presumptions are governed by section 75 of the
Sexual Offences Act where there are six different presumptions. On the facts, Donna had not
consented under the presumption that Charles would use violence if she resisted. It is stated
under section 75(3)(b) a circumstance where a person was causing the victim to apprehend
or fear violence to be used immediately. This can be seen when Charles showed Donna a
pair of handcuffs where she will be in a position to apprehend violence. An evidential
presumption that can also be brought up is of section 75(3)(c) where the victim, and not the
defendant was unlawfully detained at the time of the act. On the facts, the handcuff serves
a method to detain Donna from the ability to resist. This concludes that Donna has failed to
give consent in conjunction to R v Olugboja. However, did Charles reasonably believe there
was consent from Donna and rebut the presumptions. Charles understands the he had
known Donna from a sado-masochist online forum. Charles would reasonably believe she
had consented as Donna knows the purpose of the handcuffs and violence and bondage are
part of the sexual intercouse. In the case of R v Brown, Lord Templeman stated that
pleasure derived from the infliction of pain is indeed cruel however the conviction for
consent for ABH was dismissed as it was a result of sado masochist activities. However, on
the facts, Charles did reasonably belief there was consent therefore he can not be liable for
rape, however perhaps for a different offence.

The next issue is if Charles is liable for rape in the scenario with Ella. The facts on hand is
that Ella had made the first sexual advance to Charles therefore there is reasonable belief
for penetration. However, the issue is that she had only consented if Charles used a condom
which he had removed prior to penetration. The presumption governing the mental
element is a conclusive one where there was no consent or reasonable belief of consent.
Conclusive presumptions are governed under the section 76 of the Sexual Offences Act
where section 76(2)(a) states that the defendant had fraudulently deceived the victim as to
the purpose to relevant act. In the case of Assange v Swedish Prosecution and R(F) v DPP,
the facts are similar where the victim had originally given her consent under the condition
for the defendant to use a condom and had withdrawn her consent after she had found out
that the defendant had not used one and the conviction for unlawful coercion was upheld.
On the facts, Charles had deceived Ella into not wearing a condom therefore he could be
charged for unlawful coercion. However, Ella was intoxicated as she was intoxicated on
alcohol before giving her consent to Charles. Section 74 also states that a person has given
proper consent if he or she agrees by choice, has the freedom and capacity to do so. In the
case of R v Bree, where the victim and the defendant had been drinking and the victim had
been in a state of subconscious control, and only remembers the sexual intercourse
however stating that she had not said no and the defendant did have reasonable belief
there was consent as the victim had undressed herself and appeared willingly. The
conviction of rape was rejected as it was held that despite being drunk, the victim had the
capacity to consent. In the case of R v Kamki, the trial judge had stated that everyone has
the freedom to consume any amount of alcohol and whether to have sex or not, unless if
the person is unconscious where there would rightfully be a failure to give consent as that
individual is not within capacity to do so. In the case of Dougal, it was established that a
person who would not have consented if sober, but did when they were drunk on alcohol is
still in capacity to consent and the consent is sufficient as the trial judge stated that a
drunken consent is still considered consent with the same weight of consent made by a
sober person. On the facts, it is stated that Ella has always fancied Charles and was still
conscious to make a sexual advance to Charles therefore Charles is not liable for rape
however he would be charged for unlawful penetration for the act of deceiving Ella from
wearing a condom.

In final issue is whether Charles is liable for rape in the scenario with Fiona. The actus reus
is satisfied however with consent from Fiona. However, was the consent fraudulently
obtained from Fiona. The presumption to be used is a conclusive presumption where it
involves s.76(2)(a) where deception is used in order to obtain consent. In the case of R v
William is that the victim was deceived by her vocal teacher who had stated to have a
method to improve her singing simply by engaging in sexual activity. The victim had
consented to a different nature and quality of act. In the case of R v Linekar, The defendant
had sexual relations with a prostitute on the condition that he pay her £25. He had never
paid and had no intention of paying. The deceit did not void consent as to the nature or
quality of the act, according to the court. The defendant's rape conviction was overturned.
In the case of R v Jheeta, the defendant and the victim had a sexual relationship that was
voluntary. When the victim confided in him, the defendant began sending anonymous
threatening communications to her and pledged to protect her. She later attempted to
discontinue her contact with the defendant, to which he replied by claiming to be a police
officer and sending her messages threatening her she had to sleep with him or face criminal
charges. The issue of law is that The absence of consent on the part of the victim, as well as
the defendant's reasonable belief in consent, is required for rape under s.1 of the Sexual
Offences Act 2003. In cases where the defendant willfully mislead the complainant as to the
nature or purpose of the relevant act, s.76 establishes a conclusive presumption of the
absence of permission and the absence of a reasonable belief in consent. The question in
this instance was what was the relevant conduct to which the deception had to be
connected. Despite, the nature of the act was relevant to what the consent was for, the
courts upheld the conviction of rape. The rape convictions were deemed to be safe
regardless of whether the s.76 presumption applied since the defendant admitted that the
victim did not actually agree to many of their sexual encounters. On the facts, the nature
and quality of act was different to what she had consented for therefore Charles is liable for
rape as per R v Williams.