MENS REA
Two forms of subjective faults are intention and recklessness.
INTENTION
To be guilty of murder by shooting, the prosecution must prove that both D intended to pull the
trigger and that D intended to kill, or at least cause serious injury. It is important to know that
intention is different from motive and motive provides actor’s reason for forming the intention.
In Melony, then in Hancock and Shankland, the HL revisited the meaning of intention. Both the
cases are on murder. In these cases, overruling Hyam, stated that it could be shown that if it could
be shown that D foresaw a consequence as probable or highly probable and yet carried out, this did
not mean that D intended the consequence. However, proof that D acted with this foresight could
be used as evidence that the consequence was in fact intended. In many cases, the only evidence
that D intended an outcome is the fact that it was so likely to result from D’s act. The higher the
degree of probability foreseen by D, the more likely it was that the consequence intended. If the
evidence show that D foresaw the consequence as virtually certain, it might be considered as
intention. In Nedrick on similar facts to Hyam, Lord Lane CJ put it this way:
Where a man realizes it that his actions will result in death or serious harm, it can be said that he
intended that result.
However, it is the duty of jury to decide whether the consequence was intended by reference to all
evidences.
Nedrick was approved by HL in Woollin. HL give direction to jury in Woolin that ‘where the charge is
murder and in rare cases where simple direction (i.e when direct intention is not suitable) is not
enough, the jury should make sure that whether the death or serious injury was virtually certain and
whether D appreciated that harm. This is for the jury to decide on it after considering all evidences’.
The Woollin direction is important for drawing a line between intention and recklessness. Foresight
of anything less than virtual certainty cannot be intention but recklessness.
RECKLESSNESS
On numerous occasions it has been used by judges interchangeably with negligence or gross
negligence, especially in the field of manslaughter. In theory, these two fault elements are different:
recklessness is a subjective fault element requiring proof of ‘awareness or thought’ whereas
negligence is an objective element which does not. The traditional meaning of recklessness is
deliberate running of an unjustified risk of which D was aware.
Awareness of the risk is necessary
The first major authority for the requirement that D was conscious of the risk, is Cunningham(ripped
a gas meter; gas escaped and penetrated to next door’s house; charged and convicted of ‘unlawfully
and maliciously administering a noxious thing so as to endanger life’ s.23 of OAPA; conviction
quashed on appeal as definition of malicious was incorrect; is not a wicked thing but recklessness.
Being aware of the risk does not always require conscious thought process
Definition of malice is also valid for s.20 of OAPA.
Two forms of subjective faults are intention and recklessness.
INTENTION
To be guilty of murder by shooting, the prosecution must prove that both D intended to pull the
trigger and that D intended to kill, or at least cause serious injury. It is important to know that
intention is different from motive and motive provides actor’s reason for forming the intention.
In Melony, then in Hancock and Shankland, the HL revisited the meaning of intention. Both the
cases are on murder. In these cases, overruling Hyam, stated that it could be shown that if it could
be shown that D foresaw a consequence as probable or highly probable and yet carried out, this did
not mean that D intended the consequence. However, proof that D acted with this foresight could
be used as evidence that the consequence was in fact intended. In many cases, the only evidence
that D intended an outcome is the fact that it was so likely to result from D’s act. The higher the
degree of probability foreseen by D, the more likely it was that the consequence intended. If the
evidence show that D foresaw the consequence as virtually certain, it might be considered as
intention. In Nedrick on similar facts to Hyam, Lord Lane CJ put it this way:
Where a man realizes it that his actions will result in death or serious harm, it can be said that he
intended that result.
However, it is the duty of jury to decide whether the consequence was intended by reference to all
evidences.
Nedrick was approved by HL in Woollin. HL give direction to jury in Woolin that ‘where the charge is
murder and in rare cases where simple direction (i.e when direct intention is not suitable) is not
enough, the jury should make sure that whether the death or serious injury was virtually certain and
whether D appreciated that harm. This is for the jury to decide on it after considering all evidences’.
The Woollin direction is important for drawing a line between intention and recklessness. Foresight
of anything less than virtual certainty cannot be intention but recklessness.
RECKLESSNESS
On numerous occasions it has been used by judges interchangeably with negligence or gross
negligence, especially in the field of manslaughter. In theory, these two fault elements are different:
recklessness is a subjective fault element requiring proof of ‘awareness or thought’ whereas
negligence is an objective element which does not. The traditional meaning of recklessness is
deliberate running of an unjustified risk of which D was aware.
Awareness of the risk is necessary
The first major authority for the requirement that D was conscious of the risk, is Cunningham(ripped
a gas meter; gas escaped and penetrated to next door’s house; charged and convicted of ‘unlawfully
and maliciously administering a noxious thing so as to endanger life’ s.23 of OAPA; conviction
quashed on appeal as definition of malicious was incorrect; is not a wicked thing but recklessness.
Being aware of the risk does not always require conscious thought process
Definition of malice is also valid for s.20 of OAPA.
