Essay question 1

Q: Illustrating your answer with decided cases, what is the purpose of mens rea?

Outline answer 1

This is an unusual question, but you will find that your tutors have to take steps to replace the traditional ‘What is intention?’ and ‘Why have two types of recklessness?’ essays because the law is now pretty much settled and lacking sufficient controversy to be set year on year.

You should be able to tackle an unusual question by building on existing knowledge, so for example, you could consider:

Mens rea means guilty mind, but it is more about fault than guilt.

The three main types are intention (proved by an aim, purpose, or foresight of a virtual certainty), recklessness (conscious, advertent, unjustifiable risk taking, but what the reasonable person would have foreseen is no longer enough), and negligence (falling below the standard expected of the reasonable person).

Intention and recklessness are subjective and therefore the jury should not consider what D should have foreseen.

Mens rea therefore includes fixing liability where D consciously and advertently carried out the actus reus. Negligence can be used where D should have appreciated the risk but failed to do so.

That said, the absence of mens rea does not automatically lead to an acquittal if the offence is strict liability (chapter 4).

Essay question 2

Q: The problem with the Woollin direction is that it fails to answer the following question: Say the jury returns after hours of deliberation and the foreman tells the judge that all members of the jury are in agreement that the death of the victim was a virtual certainty and that the defendant foresaw it as such, but that half of the jury wants to convict and half wants to acquit; What should the judge tell the jury?
Discuss.

Outline answer 2

This is Professor Smith’s conundrum raised in his commentary to Woollin itself (see [1998] Crim LR 890). It comes down to whether intention is a matter of law or fact. The use of the word ‘find’ by Lord Steyn in Woollin [1999] indicates it might be a question of law, as opposed to ‘infer’ in Nedrick (1986) which is fact; but Lord Steyn in Woollin [1999] also said that ‘the question is one for the jury’. This might be an application of s 8 Criminal Justice Act and, in Moloney [1985], the House of Lords emphasised it is a question of fact. Woollin [1999] is ambiguous on this point and, although the civil case of Re A [2001] suggests it is a matter of law, the most recent pronouncement is Matthews and Alleyne [2003] where the Court of Appeal was clear it is fact (even if there is little to choose between a question of law and one of fact). That suggests it is a matter for the jury to decide. So, in the scenario in the question if there is not sufficient majority in favour of finding intent, the defendant must be acquitted.