Beruflich Dokumente
Kultur Dokumente
aware of all those elements in his act which make it the crime with which he is
charged.1 That means, he must have intended the actus reus or have been reckless
whether he caused an actus reus or not. It is not necessary that he must know that
the act which he is going to commit is crime.2
As general rule a man is criminally liable for such consequences of his conduct as
he actually foresaw. Liability for such unforeseen consequences which he ought to
have foreseen is termed liability for negligence. It is only in exceptional cases that
criminal liability is imposed for negligence; usually mens rea, actual foresight of the
consequences which constitute the actus reus must be proved.
Acc. To Austin bodily movements obey wills. They move when we will they
should. The wish is volition and the consequent movements are acts. Besides the
volition and act, it is supposed there is a will which is the author of both. The
desire is called an act of the will, when I will a movement I wish it, and when I
conceive the wish I expect that the movement wished will follow. The wishes
followed by the act wished, are only wishes which attain their ends without
external means. Our desires of acts which immediately follow our desires of them
are volitions. The act I will, the consequence I intend. This imaginary will is
determined to action by motives. The desire which implies the motion is known
as volition. Where this desire is not produced by fear or compulsion the act is said
to be voluntary one. The longing for the object desired which sets the volition in
motion is motive. The expectations that desired motions will lead to certain
consequences is the intention.3
nd
Nedrick (1986) CA
supports Hancock and Shankland
The facts of which were essentially the same as in
D trying to escape from the police in a car was signalled to stop. He did
not do so. A PC jumped onto the cars bonnet. D drove at high speed,
swerving from side to side, until the officer was thrown off and killed.
Held: It was clear that he had intended to cause grievous bodily harm,
which meant no more and no less than really serious injury.
Viscount Kilmuir LC;
"I can find no warrant for giving the words grievous bodily harm a meaning other
than that which the words convey in their ordinary and natural meaning. Bodily
harm needs no explanation and grievous means no more and no less than really
serious."
Guilty murder
Cunningham, R v (1981) HL
[Murder - intention intention to commit homicide or grievous
bodily harm]
D attacked V in a pub, hitting him repeatedly with a chair, which
resulted in Vs death.
Held: Intention to cause grievous bodily harm, but not to cause death,
is sufficient to establish the mens rea for murder.
Lord Hailsham LC:
malice aforethought has never been limited to the intention to kill or to
endanger life.
Lord Edmund-Davies (dissenting):
"I find it passing strange that a person can be convicted of murder if
death results from, say, his intentional breaking of anothers arm, an
action which, while undoubtedly involving the infliction of really serious
harm and, as such, calling for severe punishment, would in most cases
be unlikely to kill. And yet, for the lesser offence of attempted murder,
nothing less than an intent to kill will suffice. But I recognise the force
of the contrary view that the outcome of intentionally inflicting serious
harm can be so unpredictable that anyone prepared to act so wickedly
has little ground for complaint if, where death results, he is convicted
and punished as severely as one who intended to kill."
Guilty
Moloney, R v (1985) HL
Held:
Lord Bridge:
foresight of consequences, as an element bearing on the issue of
intention in murder, or indeed any other crime of specific intent,
belongs, not to the substantive law, but to the law of evidence ... In the
rare cases in which it is necessary for the judge to direct a jury by
reference to foresight of consequences, I do not believe it is necessary
for the judge to do more than invite the jury to consider two questions.
First, was death or really serious injury in a murder case (or whatever
relevant consequence must be proved to have been intended in any
other case) a natural consequence of the defendants voluntary act?
Secondly, did the defendant foresee that consequence as being a
natural consequence of his act? The jury should then be told that if they
answer yes to both questions it is a proper inference for them to draw
that he intended that consequence.
Nedrick, R v (1986) CA
Held: Per Lord Lane CJ:
Where the charge is murder and in the rare cases where the simple
direction [on intent] is not enough, the jury should be directed that they
were not entitled to infer the necessary intention unless they feel sure
that death or serious bodily harm was a virtual certainty (barring some
unforeseen intervention) as a result of the defendants actions and that
the defendant realised that such was the case. Where a man realises
that it is for all practical purposes inevitable that his actions will result
in death or serious harm, the inference may be irresistible that he
intended that result, however little he may have desired or wished it to
happen. The decision is one for the jury, to be reached on consideration
of all the evidence.
Can be inferred, if virtually certain and he knows it, though not desired.
Therefore
foresees virtual certainty = subjective
is virtually certain = objective
Both have to be proved.
High standard on prosecution.
Upheld in Woollin (1998)
with some refinements of the ratio decidendi of Nedrick.
Foreseeability in mens rea