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Mens Rea - Criminal Law

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Criminal Law Mens Rea

'... on one view it is anomalous that if foresight of death or really serious harm is not sufficient to constitute mens rea for murder in the party who actually carried out the killing, it is sufficient to constitute mens rea in a secondary party' (Powell).

Discuss, in relation to the current law on secondary liability (not only joint enterprise).

This essay shall consider the present law concerning the mens rea of accomplices in murder cases, taking into account cases of joint enterprise and cases of aiding, abetting, counselling, and procuring. The essay considers the view expressed in the statement above and analyses the opinions of critics of the present law and comes to the conclusion that the present law is well justified and not anomalous.

Before beginning with a normative discussion of the topic it is necessary to outline the present law concerning the mens rea of an accomplice in a murder case. A key decision on this matter was R v Powell (1999) in which Lord Hutton stated that the test to determine an accomplice’s liability is to ask whether he or she ‘realized that in the course of the joint enterprise the primary party might kill with intent to do so or with intent to cause grievous bodily harm (GBH).’ Whilst Powell was a case of joint enterprise the key principle derived from it, that it is not necessary to show that the accomplice wanted the principle to commit the act or even authorized it, also applies to cases of aiding, abetting, counselling, or procuring. Furthermore, the cases of R v Bryce (2004) and Maxwell v DPP for Northern Ireland (1978) show that the accomplice’s liability is not restricted to precise foresight. In fact, according to Bryce it suffices that the defendant foresaw that there was a real possibility that the principal would commit the crime he or she did whereas under Maxwell the accomplice is liable if the principal does an act of the type foreseen by the accomplice; so the accomplice must not foresee the exact act of the principal.

The limitation that is placed upon this principle in cases of joint enterprise is that the act of the principal may not be fundamentally different from the act foreseen by the accomplice. This principle was established in R v English (1999) and in relation to murder this means that even if the accomplice foresaw that the principal may act with intent to cause GBH, if the lethal act committed by the principal was fundamentally different from what the accomplice foresaw, then he will not be liable for murder. According to Herring ‘one factor which will make an act fundamentally different is if it is much more likely to cause death.’ This view derived from Powell and English applies in particular to weapons where it must be shown that the accomplice foresaw the use of a weapon which is similarly lethal to the one actually used by the defendant. In addition, it will be assumed that the accomplice foresaw the use of such a weapon if he knew that the principal had it with him. It is, however, necessary to show that the accomplice foresaw that the principal will act with the necessary mens rea for the offence, in murder this is either intent to kill or to cause GBH. In R v Rahman (2008) the House of Lords rejected to extend the principle of ‘fundamental difference’ to distinguish between what the accomplice thought about the principal’s mens rea and what the principal’s mens rea actually was. The fact that the principal intended to kill whereas the accomplice contemplated that he would only want to cause GBH was not accepted by the House as a sufficient argument to render the nature of the principal’s act fundamentally different from what the accomplice foresaw. Hence, in cases of joint enterprise, foresight of the principal’s precise intention is not required, only foresight of what the principal might do. In this case, the accomplice foresaw that the principal might cause GBH and according to Lord Bingham since there is no distinction between intention to kill and intention to cause GBH for the primary offender it is not necessary to make this distinction in relation to the accessory. The crucial difference being that the principal’s mens rea is one of intent whereas that of the accomplice is only one of foresight of what the principle might do; hence in the case of murder foresight that the principal might cause GBH or kill is sufficient to make the accomplice liable.

This wide approach to the mens rea element is not only taken in cases of joint enterprise. The obiter argument is made in NCB v Gamble (1959) that ‘if one man deliberately sells to another a gun to be used for murdering a third, he may be indifferent whether the third man lives or dies and interested only in the cash profit to be made out of the sale, but he can still be an aider or abettor.’ As Ashworth points out: ‘this view criminalizes the shopkeeper as an accomplice in every case where the customer’s intention to commit that kind of offence is known.’ Hence, in cases of aiding or abetting knowledge of the principal’s intention, without purpose suffices to bring about liability. This requirement is outlined in greater detail in Johnson v Youden (1950) from which it can be derived that the accomplice must at least have knowledge of the essential matters which constitute the offence. However, following the case of Bryce the mens rea has been widened and requires only foresight of a real or substantial risk that the crime will occur and not knowledge of the crime. In relation to murder this means that

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