Teaching Notes for G153 OCR Criminal Law

1. Elements of Criminal Law [3]
Mens Rea
MAH G153 2013-14
“it’s all in the mind”

2. Starter:
Do these look familiar? (They should!)
All of you should be able
to tell me the name or the
facts of the case.
Most of you should be
able to tell me the
importance or the
decision of the case
Some of you should be
able to link it to another
case.

3. General Rules:
D should ideally make a voluntary choice to commit the offence, and it is this which we call the
mens rea or ‘guilty mind’
Scenario
Jane is in a kitchen and
picks up a knife
Patrick picks up a
phone in the classroom
James opens a window.
How do we turn these innocent actions
into guilty ones?
…and some even need more than one
element!
“Dishonestly appropriate property
belonging to another with the intention
to permanently deprive the other of it”
s.1 Theft Act 1968
Generally speaking, the more serious the
crime, the ‘higher’ the level of mens rea
Murder Manslaughter

4. Where does motive come into it?
Steane 1947
“A man is taken to intend the
natural consequences of his
acts…but the motive of a man’s
act and his intention in doing
the act are, in law, different
things”
Why might motive still be relevant in a
criminal court?

5. Types of Mens Rea 1:
Intention
Specific Direct
aka express
Basic Oblique
aka indirect
Wait until we look at
intoxication
for this section!
Warning: Intention is not actually defined anywhere in the law, so we have to look at how the courts have
interpreted it.
What other words could you use to describe some one’s intention?

6. “a decision to bring about, in so far as
it lies within the accused power( the
prohibited consequence), no matter
whether the accused desired that
consequence of his act or not”
Intention Type One:
Direct Intent
R v Mohan 1975
Means: You both foresee and intend the consequence which occurs.

7. Intention Type Two:
Oblique Intent
Scenario:
David puts a bomb on one of his planes, intending for
it to blow up in the air so he can claim the insurance.
It explodes, killing the crew as well.
Does D have a direct intent to kill?
 Should we hold D responsible for the deaths?
Means:
D intends one consequence (e.g.
arson) but another occurs (e.g.
murder). He is held liable if he could
foresee* it.
Why is it so important?
Well if we can prove oblique intent,
then we can convict D of murder or
s.18 GBH. However, if it cannot be
proven, then the most they can be
convicted of is manslaughter or s.20
GBH… so it can make a big difference
to D!
*So, if foreseeability is key... how far does D need to foresee something to be liable for it.

8. Impossible Unlikely Possible? Probable Highly
Probable
Virtually
Certain
Certain
1. A man fires a shotgun out of the
window of a remote farmhouse
2. A man fires a shotgun which he is
holding directly at the head of his
victim
3. A man fires a shotgun out of the
window of a shop in the high street
4. A man fires a shotgun in the direction
of a bus queue twenty feet away
5. A man fires a shotgun into the air on
the moon (no other astronauts
around)
6. A man fires a shotgun at the head of
someone stood in his doorway.
7. A man fires a shotgun at a bus queue
six foot away.
All of you should be able to decide which scenario fits which term
Most of you should be able to label at what point D will be considered to have a direct intent
Student Task:
Look at the grid below. In each of the following
circumstances, V is shot and killed.
Some of you should be able to decide at what point you think D should be liable for murder and
why.

9. Foresight of Consequences
Why was there a problem?
DPP v Smith 1961
‘If you are satisfied that
... he must as a
reasonable man have
contemplated that
grievous bodily harm
was likely to result to
that officer ... and that
such harm did happen
and the officer died in
consequence, then the
accused is guilty of
capital murder. “
This created an objective test…

10. So, the Government has to step in and pass s.8 Criminal Law Act 1967
How do we judge intent?
A court or jury, in determining whether a person has committed an offence:
a) shall not be bound in law to infer that he intended or foresaw a result of his actions by reasons only
of its being a natural and probable consequence of those actions: but
b) shall decide whether he did intend or foresee that result by reference to all the evidence, drawing
such inferences as appear proper in the circumstances.

11. So if ‘natural and probable’ isn’t good enough, what is?
Development of the test (1)
Hyam v DPP 1975
Decision:
D must have foreseen death or GBH
as a highly probable result.
What impact does this have on D’s
liability?

12. Two important sections to this decision:
1. Foresight of consequences are only
evidence of intention.
2. Bridge LJ set down a two stage test (to
decide whether consequences were
foreseen) to be put before juries:
a) Was death or really serious injury
a natural consequence of the
defendant’s act? And
a) Did D foresee that consequence
as being a natural result of his
act?
R v Moloney 1985
So if ‘natural and probable’ isn’t good enough, what is?
Development of the test (2)

13. Hancock & Shankland
1986
“the greater the probability
of a consequence the more
likely it is that the
consequence was foreseen
and that if that consequence
was foreseen the greater the
probability is that
consequence was also
intended.
So if ‘natural and probable’ isn’t good enough, what is?
Development of the test (3)

14. R v Nedrick 1986
So if ‘natural and probable’ isn’t good enough, what is?
Development of the test (4)
The CA decided to use this case to
clarify the rules and set an easy to
understand test for the jury:
 How probable was the
consequence which resulted from
D’s voluntary act? and
 Did D foresee the consequence?
Those consequences should be
foreseen as a virtual certainty.
If all this can be proven, then the jury
may infer intent from the
circumstances.

15. R v Woollin 1998
So if ‘natural and probable’ isn’t good enough, what is?
Development of the test (5)
Stretch yourself!
“The test which is confirmed by the House
of Lords in Woollin would have been enough to convict
him of murder if the judge had got the direction right”.
Can you explain why this statement is right in the law?

16. Starter:
Can you apply what you have learnt last
lesson?
What type of intent do I have in each of these
scenarios?
 I point a gun and pull the trigger
 I set fire, intending to scare, and someone dies
 I say “I’m going to kill you” and then put my hands
round your throat.
 I put my hands up and walk towards you.
I kick a ball at my opposition, and it misses
breaking a window.
I go into Jo’s bag and take out her purse.

17. So if ‘natural and probable’ isn’t good enough, what is?
Development of the test (6)
“the law has not yet reached a
definition of intent in murder in terms
of appreciation of a virtual
certainty…however, we think that, once
what is required is an appreciation of
virtual certainty of death, and not
some lesser foresight of merely
probable consequences, there is very
little to choose between a rule of
evidence and one of substantive
law.”
The final word?
R v Matthews & Alleyne
 What issues might there be with
this decision?
 What does it seem to say about
foresight of consequences

18. Can you apply the law?
I am sick of Bob, my pupil. He never does
homework, and is constantly on his mobile.
I decide I cannot put up with this any longer
and make a plan blow up E52, knowing that
he’ll be in there during lesson time, but I
will be out on a course. The classroom
blows up, killing the rest of the class as well.

19. Consolidation:
Have you understood the key developments in oblique
intent?
Working with the
person next to you,
see if you can match
up the cards…
All of you should be
able to match the case
to the description
Most of you should be
able to work out the
ratio
Some of you should be
able to divide them
into murder and
manslaughter cases
This one isn’t
right!

20. Summarise your learning:
Using the cards and your
understanding complete
the revision grid on p.12

21. All of you need to answer this:
What degree of foresight is
enough for oblique intent in the
law?
Most of you need to identify a
supporting case, which you
explain.
Some of you need to answer the
following:
Is foresight of consequences
intention, or only evidence of
intention?
Plenary:
To Sum up…

22. Homework:
Using what you have learnt so far, explain whether the following defendants would be
liable for the harm or not and why
1. Louisa stops to let Jane cross the road. Sam, who is checking his mobile phone, fail
to see that she has stopped and runs into the back of Louisa’s car causing it to hit
Jane and break her ankle Louisa and Sam are both charged
2. Sebastian is a newly trained doctor who treats Emmaline following a stabbing. He
gives Emmaline 30mg of penicillin, instead of 300mg. Emmaline cannot fight off
the infection and dies. Sebastian is charged
3. Katie is really unhappy with her Law teacher. She decides to get rid of him, so that
he will be replaced. She rigs up a bomb in the classroom and times it to go off
when he is in the room. The bomb goes off, killing the teacher and three students
in the room with him Katie is charged with the murder of all three
E Grade: decide whether or not they would be liable, using the facts of the scenario
C Grade: support your decision by reference to the relevant area of the law
A Grade: Use a relevant case or statute to support your conclusions.

23. Got it?
Murder or Manslaughter?
Susie argues with
Simon and smashes
a vase over his head,
wanting to shut him
up.
Peter fires his arrows at a
tree out of his window. He
hit Steven, who is walking
down the lane.
Ashley stabs Sophia six
times with a fork.
Jim puts a bomb in his car, wanting to get rid of it. His
wife drives it, and it explodes, killing her.
Stevie drops a
concrete slab off
a bridge,
intending to
stop a car. The
slab hits the car,
killing the driver
All of you should be able
to decide whether D is
liable for murder and
manslaughter
Most of you should be
able to explain why
Some of you will be able
to decide, for those liable
for murder, who has a
direct intent, and who an
oblique intent.
Dari and Tim are arguing.
Dari punches Tim to get him
to shut up and he falls over,
hitting his head and dying
Defendant Murder or
Manslaughter?
Why? Intent?
Susie
Jim
Stevie
Peter
Ashley
Dari

24. Marking A2 Essays
What kind of essay might you get
on this subject?
Turn to pp. 13-14 in your hand out.
Here, you have a sample essay on the
topic of intention, which we have just
looked at.
You’re going to mark it!

25. Marking A2 Essays
Step One: The Question
“The meaning of intention in the criminal law has now been clearly
settled by decisions of the courts and there is no longer any need for
Parliament to legislate upon the matter”
Discuss whether you agree with this statement.
 What will you expect a student to include?
This is known as the indicative content..
 What key words will you expect to see framing their
argument and evaluating their cases/statutes?
Use this and the general
mark scheme to mark
the sample essay, and
complete the feedback
box

26. Marking A2 Essays
Step One: The Question
“The meaning of intention in the criminal law has now been clearly
settled by decisions of the courts and there is no longer any need for
Parliament to legislate upon the matter”
Discuss whether you agree with this statement.
 What will you expect a student to include?
This is known as the indicative content..
 What key words will you expect to see framing their
argument and evaluating their cases/statutes?
Use this and the general
mark scheme to mark
the sample essay, and
complete the feedback
box

27. The General Mark Scheme
AO1 Marks AO2 Marks
LEVEL 5 Wide-ranging, accurate, detailed
knowledge with a clear and confident
understanding of the relevant concepts and
principles. Where appropriate, candidates
will be able to elaborate with wide citation of
relevant statutes and case law – 8 cases
21-25
Ability to identify correctly the relevant and
important points of criticism, showing good
understanding of current debate and
proposals for reform, or to identify all of the
relevant points of law in issue. A high level of
ability to develop arguments and reach a cogent,
logical and well-informed conclusion.
17-20
LEVEL 4 Good, well-developed knowledge
with a clear understanding of the relevant
concepts and principles. Where appropriate,
candidates will be able to elaborate by good
citation to relevant statutes and case-law. 5
cases
16-20
Ability to identify and analyse issues central to
the question, showing some understanding of
current debate and proposals for reform, or to
identify most of the relevant points of law in
issue. Ability to develop clear arguments and
reach a sensible and informed conclusion.
13-16
LEVEL 3 Adequate knowledge showing
reasonable understanding of the relevant
concepts and principles. Where appropriate,
candidates will be able to elaborate with
some citation of relevant statutes and case-
law. 3 cases
11-15
Ability to analyse most of the more obvious
points central to the question or to identify the
main points of law in issue. Ability to develop
arguments and reach a conclusion.
9-12
LEVEL 2 Limited knowledge showing
general understanding of the relevant
concepts and principles. There will be some
elaboration of the principles, and where
appropriate with limited reference to
relevant statutes and case-law. 1 case
6-10
Ability to explain some of the more obvious
points central to the question or to identify
some of the points of law in issue. A limited ability
to produce arguments based on their material
but without a clear focus or conclusion.
5-8
LEVEL 1 Very limited knowledge of the
basic concepts and principles. There will be
limited points of detail, but accurate citation
of relevant statutes and case-law will not be
expected.
1-5
Ability to explain at least one of the simpler
points central to the question or to identify at
least one of the points of law in issue. The
approach may be uncritical and/or unselective.
1-4

28. Starter:
The scary triangles are back!
Lollipop Level
All brains, no help
Sticker happy?
Use the notes, or a
text book
Too easy?
Which case is
missing and why?

29. Mens Rea Type Two:
Recklessness
The conscious taking of an unjustifiable risk
Meaning:
R v Cunningham 1957
This is currently
measured subjectively
but this was not
always the case.

30. So what went wrong?
The House of Lords expanded their own definition!
R v Caldwell 1981
The court decided that
liability through recklessness
could occur in two situations:
1. D realised the risk and
went ahead; or
2. D had not thought about
the possibility of any risk
but went ahead
What does this seem to
imply about the test for
recklessness?
It is this one which
causes the difficulties.

31. Point Explanation However…
Caldwell has changed the test for
recklessness completely
It is now too broad and doesn’t take
account of D’s characteristics
It has been expanded to other
offences such as manslaughter
The reasonable man is always
reasonable.
Critical Thinking:
What issues are raised by the decision of the court in Caldwell?
All of you should be able to explain why the points are a problem
Most of you should be able to support your reasoning with reference to a
case or example
Some of you should be able to refer to a range of counter-arguments to
develop your discussion.

32. Elliot v C 1983
How bad could the Caldwell decision get?
Why do you think that some people
argue the outcome of this case is
wrong morally and legally?
Seymour 1983
Reasonable manslaughter?

33. How do we resolve this?
The House of Lords used the…..
To overrule Caldwell with respect
to criminal damage and
recklessness.
So the test is:
Did D realise there
was a risk and go
ahead anyway?
G & R 2003

34. Plenary:
On the back of your handouts, answer the following
question:
Explain the
difference between
direct intent,
oblique intent and
recklessness in
English criminal
law.
 Clear definitions
of the terms
 at least one case
used to support
 Able to point out
how the three
terms differ
 at least three
cases used to
support
 Discuss one
issue the courts
have had with
the terms
 at least five
cases used to
support
E C A

35. Starter
Do you know your
cases?
There are 13 cases or
parts of cases in here…
Can you find them and
sort them out into the
different mens rea?

36. Starter
Do you know your
cases?
There are 13 cases or
parts of cases in here…
Can you find them and
sort them out into the
different mens rea?

37. A final couple of things:
Transferred Malice
D intends to
hit V….
…but misses
and hits X
Transferred malice is the doctrine which explains why
D is liable for the harm to X!
AO2: Why are we justified convicting D of the harm?
Means: D’s Malice is transferred
from the intended victim
to the actual victim.

38. Classic Example:
R v Latimer
Modern Example:
R v Mitchell
Examplesofthedoctrineat
work…

39. Limitations
Limitation One:
Must be the same category of offences
Pemblition
“The doctrine of transferred malice was
inapplicable where the defendant's intention
had not been to cause the type of harm that
actually occurred.”
Limitation Two:
It can only transfer a limited number of
times
AG’s Ref No 3 of 1994 (1997)
“The defendant intended to commit and did commit
an immediate crime of violence to the mother. He
committed no relevant violence to the foetus, which
was not a person, either at the time or in the future,
and intended no harm to the foetus or to the human
person which it would become.”
Whose reasoning do you prefer? The CA
or the HL? Why?
Why do we need to limit when the doctrine applies?

40. What are the words?
What’s the link?
Intent
Reckless Negligence
Mens Rea!

41. The final step:
Coincidence
Means: The AR & the MR must both be present at the same time for D to be liable.
General Rule Illustration:
Miller
1. When did D develop the MR of
arson under s. 1(1) and (3) of
Criminal Damage Act 1971?
2. Why do you think the courts
developed this rule?
But: The courts seem to look for
contemporaneity when it seems
that none really exists based on
the facts!

42. D was liable as the
AR continued on…
and on… so even
though the that the
MR was complete,
it continued too!
Way Round the Rule [1]
Series of acts
D punched his
wife on the
chin, knocking
her
unconscious
He dragged
her away to
hide her
She hit her
head on the
pavement &
died as a
result
Is he liable for
her
manslaughter?
Le Brun
This is where D does one in a series of acts, which keep going until
the harm is complete, even if the MR ‘ends’ early!
Church
Thabo Meli
D was liable as he
had committed one
of a series of acts
leading to D’s death,
and had the MR
when he committed
that act

43. Way Round the Rule [1]
Continuing Act
In continuing act, if D develops MR at any point before the AR is
complete, then D will be liable.
An example:
Kaitamaki
D had sex with V during which he
realised that she did not consent &
then continued.
 Why was D still
held liable?
 Is this approach
justifable?
1. What happened?
2. What offence was he sharged with?
3. Why was it indirect?
4. What was the ‘criucial question’ in
this case?
5. Did D commit an Act or an
Omission?
6. Why did D argue he should be
found NG?
7. Do you agree with the outcome of
the case? Why/why not?
Fagan v MPC 1969

44. Plenary:
Complete the Post-it!
A
B
C
D
E