Criminal Law PDF

3 General Principles: Mens Rea LEARNING OUTCOMES When you have completed this chapter, you should be able to: identify the mens rea elements of a criminal offence; explain and apply the law relating to intention, recklessness, negligenc...

3 General Principles: Mens Rea LEARNING OUTCOMES When you have completed this chapter, you should be able to: identify the mens rea elements of a criminal offence; explain and apply the law relating to intention, recklessness, negligence and strict liability; understand the principles of transferred malice and the co-​incidence of actus reus and mens rea. 3.1 Introduction As discussed previously, three components are required to establish liability for a criminal offence, namely, guilty conduct by the defendant (actus reus), a guilty state of mind (mens rea), and absence of any valid defence. In this chapter, the second element will be analysed. In most criminal offences, the prosecution must prove that the defendant committed the actus reus of the offence with, at the appropriate time, the relevant guilty mind. Mens rea is the term used to refer to this mental or fault element. In the majority of offences, the defendant must be shown either to have intended something to happen, or to have been reckless as to whether certain circumstances would exist or whether certain consequences would follow from their conduct. However, this is not always the case: sometimes the defendant can be convicted not because of what their state of mind was at the time of their guilty conduct but what it should have been. The mens rea requirements of particular crimes can usually be gleaned from the formal definition of an offence. For example, the statutory definition of criminal damage makes it clear that the prosecution must prove the defendant had the criminal state of mind of intention or of recklessness (as regards damaging or destroying property belonging to another) before they can be convicted of the offence. Unfortunately, the mens rea requirements are not always so obvious; for example, the definition of murder requires the unlawful killing of a human being ‘with malice aforethought’. As will become apparent, it took a considerable amount of judicial debate before the House of Lords decided what this phrase meant! 3.2 Intention Intention is the most culpable type of mens rea. The word itself is used commonly in the English language, but, surprisingly, its interpretation has caused some difficulty in the context of criminal law as will be discussed below. 33 Criminal Law Intention should not be confused with motive as the two concepts are quite different. The defendant who kills the victim because they raped a relative, or the mercy killer who genuinely wants to end the pain of a loved one and to allow them to die with dignity, will be guilty of murder. Their motive may be admired or understood by many, but this is irrelevant when determining criminal liability. As long as the defendant killed someone and intended to do so, or intended to cause really serious injury, they have the actus reus and mens rea of murder regardless of their reasons for acting in this way. In such a case, the defendant will be guilty of murder unless they have a defence. 3.2.1 Direct intention The ordinary definition of intention would include wanting something, setting out to achieve something or having something as an aim. The Oxford English Dictionary lists the following: ‘intended or purposed; a purpose or design; ultimate purpose; the aim of an action’. Applying this definition suggests that a defendant intended something to happen (or intended a particular circumstance to exist) if they wanted to bring it about, so that it was their aim, purpose, goal or desire. The courts would describe such a situation as a case of direct intent. Example Tobias deliberately shoots a gun at Sid from a distance of two metres. He kills Sid and is charged with murder. Tobias says he did not intend to kill Sid or to cause him serious harm (the mens rea for murder). Can the prosecution prove intent in these circumstances? (1) Tobias says he lacked mens rea because, although he wanted Sid to die, he did not think it would happen as Tobias is a terrible shot and he believed the bullet would miss Sid. Here, Tobias could be said to have the mens rea for murder as he wanted to kill Sid; it was his aim, purpose or desire to do so. In such a situation, the court would find it easy to conclude that Tobias had the required direct intent. The fact that Tobias thought he would probably miss is irrelevant: if events turned out the way he hoped they would, Sid would be killed. In cases of direct intent such as this, the fact there is a possibility or even a probability that the defendant will not achieve their goal is disregarded. (2) Tobias says he lacked mens rea because he and Sid were just fooling about: Tobias did not realise the gun was loaded. In this scenario, Tobias does not have the necessary mens rea for murder. It was not his aim or wish to kill Sid and, as he thought the gun was not loaded, he cannot be guilty of murder. He lacks the required intention to be guilty of this offence. Where there is a direct attack on the victim by the defendant, the issue of intention is clear, and the jury will be given no direction as to the meaning of intention. In such cases, as Lord Bridge stated in the case of R v Moloney 1 AC 905 (HL), the judge should avoid any elaboration or paraphrase what is meant by intent and should leave the matter to ‘the jury’s good sense’. The judge will simply tell the jury, on a charge of murder for example, that the defendant must have intended to kill or to cause really serious harm to have the necessary mens rea. 34  General Principles: Mens Rea It is clear that a defendant has the direct intent to commit an offence if the consequence, whether it be death, criminal damage or assault, is their aim or purpose. But what if the defendant argues that they did not set out to achieve something –​that it was not their aim or purpose to bring about a particular outcome. 3.2.2 Indirect intention Although defining intention should be straightforward, in practice the courts and legislators have sometimes struggled to achieve this. Indeed, case law has broadened the law of intent beyond the everyday meaning so that it also recognises indirect or oblique intention (the terms are interchangeable). This is a concept that has been developed by the courts to cover cases where the defendant argues that the outcome was not their main aim but an unfortunate by-​product of what they did set out to achieve. Example Talia plants a bomb on a plane which is timed to explode when the plane is in the air over the Atlantic. She does this because the plane is carrying Talia’s valuable antiques which are well insured. She hopes that the antiques will be destroyed so that she can claim the insurance money. The plane explodes, killing the crew and Talia is charged with murder. She submits that she did not intend to kill the crew –​she hoped that by some miracle they would be saved. The question for the court is whether Talia intended to kill them. Although, morally, intention should be made out so that Talia can be convicted of murder, it would be difficult to argue that she had direct intent because her primary purpose was not to kill; her aim or her desire was to destroy the antiques and to claim the insurance money. However, Talia must have known it was almost certain that people would die. In cases such as these, where it may be difficult to establish direct intent, the courts will rely upon ‘indirect’ or ‘oblique’ intent. Cases on indirect intent occur most frequently in the context of murder, because this offence cannot be committed recklessly. Precisely what the accused must foresee, and with what degree of certainty in order to have intended the consequences, arose in a number of cases and was the subject of frequent disagreement. Ultimately, the direction of indirect or oblique intent was settled after a series of Court of Appeal and House of Lords cases. The first of these was R v Moloney in which the defendant shot his stepfather dead after a drunken competition to see who could load a gun the fastest. The defendant said he had no idea in firing the gun that he would injure his stepfather: he had no direct intent to kill or cause really serious harm. The jury was required to decide whether the defendant had an indirect intent. The House of Lords confirmed that there would be some situations where the jury would need guidance on whether they could conclude that the defendant had the mens rea of intention, although they were at pains to point out that such occasions would be rare. In cases where assistance was required, the judges in Moloney suggested that the jury should be told to ask themselves whether they (the jury) believed that death or really serious injury was a natural consequence of the defendant’s act; and if so, were they satisfied that the defendant had foreseen this. If the answer to both was yes, the jury should be instructed that they had evidence from which intention could be inferred (although they did not have to so infer). The Moloney guidelines soon came under scrutiny in the next case to consider indirect intent, R v Hancock and Shankland 1 AC 455 (HL). In this case two striking miners dropped 35 Criminal Law a concrete block from a bridge onto a taxi that was taking a miner to work, killing the taxi driver. When charged with murder, the defendants said they only intended to block the road and scare the working miners into stopping work. The trial judge in Hancock and Shankland dutifully followed the guidelines issued by the House of Lords in Moloney and the defendants were convicted. However, on appeal, the House of Lords decided that their own guidelines were unsafe and misleading, and suggested instead that the jury questions should include a reference to probability. The decisions in Moloney and in Hancock and Shankland led to difficulties in those cases where the defendant did not set out to achieve the death or serious injury of the victim and, thus, direct intention did not apply. There was confusion about the meaning of the words ‘natural’ and ‘probable’ –​does ‘natural’ mean all consequences following from the defendant’s conduct? Does ‘probable’ mean there is a more than 50% chance of the consequence occurring, or must it be a higher percentage? These questions were answered by the Court of Appeal in R v Nedrick 1 WLR 1025 (CA) and necessitated a change in the wording of the guidance developed by the earlier authorities. It was held that if, in a murder case, the judge felt that the jury would benefit from some guidance on the meaning of indirect intent, the following should be put to them: (a) Did the jury consider that death or serious injury was virtually certain to occur as a consequence of the defendant’s actions? (b) If so, did the jury believe that the defendant foresaw death or serious injury as a virtual certainty? The jury should be told they could not infer intention unless they answered ‘yes’ to both these questions, and even if they did answer in the affirmative, they did not have to infer intent: they then simply had evidence from which intention could be inferred. The use of the words ‘virtually certain’ does appear less ambiguous than ‘natural’ or ‘natural and probable’, and it seems to convey more clearly that the jury must be almost sure that death or serious injury would follow and that the defendant foresaw this as a consequence. Applied and considered properly, therefore, the use of the ‘virtual certainty’ test makes it less likely that indirect intention will be inferred. The final important case on this area, and the leading authority, is R v Woollin 1 AC 82 (HL). The defendant in this case killed his three-​month-​old son by throwing him against a hard surface. It was clear on the facts that the defendant had no desire (direct intent) to kill or seriously injure his son, but the question remained as to whether, nevertheless, he could be said to have an indirect intent to do so. In giving his judgment, Lord Steyn approved the test set out in Nedrick, stating that it ‘provided valuable assistance to trial judges’. However, he did agree with academic criticism that the word ‘infer’ may detract from the clarity of the direction and should be replaced with the word ‘find’. Thus, a judge giving such a direction today should explain that the jury may ‘find’ the defendant had an intent to kill or do serious injury if they are satisfied: (a) that death or serious bodily harm was a virtually certain consequence of the defendant’s voluntary act; and (b) that the defendant appreciated that fact. Lord Steyn considered that the trial judge would be best placed to decide whether there was a need to give the guidance in any particular case and confirmed that this would not occur in all cases, but only those ‘in which the defendant may not have desired the result of his act’. In the Woollin case itself, Lord Steyn felt that the murder conviction was unsafe due to a material misdirection by the trial judge to the jury and so he substituted a conviction of manslaughter. 36  General Principles: Mens Rea Example (continued) Continuing with the scenario above in which Talia planted a bomb on a plane, the jury would be told to consider two issues, namely: (a) Was the consequence virtually certain to occur from the defendant’s act (or omission)? In this case, by planting a bomb in the plane timed to go off when the plane was in the air, it was virtually certain that crew members would either be killed or seriously injured. (b) If so, did the defendant foresee the consequences as virtually certain to occur? Given the drastic nature of Talia’s act, it is likely that the jury would conclude that Talia herself foresaw the demise of the crew members as virtually certain to occur. Having reached these conclusions, the jury have evidence from which they can find that the defendant intended the consequences of their act (or omission); thus, that Talia did intend to kill or cause really serious harm to the crew. It is extremely unlikely that if anyone was asked to define intention, they would come up with the two-​stage test from Woollin. Effectively, it is an artificial definition to prevent some (undeserving) defendants literally getting away with murder. The fact that the result must be a virtual certainty means that it will catch only a few defendants who would not otherwise be convicted anyway on the basis of their direct intent. 3.2.3 Criminal Justice Act 1967, s 8 In cases involving indirect intent, jurors will have to consider what the defendant foresaw at the time of their act (or omission); but in the absence of a clear confession, how can the jury ascertain this? Section 8 of the Criminal Justice Act 1967 provides some assistance. When determining whether a person has committed an offence, the court: (a) shall not be bound in law to infer that he intended or foresaw a result of his actions by reason 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 from the evidence as appear proper in the circumstances. In other words, the test is what the defendant themselves foresaw, not what a reasonable person would have foreseen; but what a reasonable person would have foreseen is a good indication, which a jury can take into account, in deciding what this particular defendant did foresee. Example (continued) Continuing with the example (above), Talia gives evidence in court that it never crossed her mind that the crew would be killed. The effect of s 8 is that the jury does not have to simply accept whatever she says. In this instance, it would be obvious to a reasonable person that the crew would die if a plane exploded over the ocean. This would help the jury decide whether Talia is telling the truth when she says she did not foresee death as a virtually certain outcome. As Talia’s story is so unlikely, the jury would not believe her. However, they must not conclude that simply because a reasonable person would foresee something as virtually certain, it is automatically the case that Talia foresaw it as such. 37 Criminal Law 3.2.4 Summary of intention The present law on intention may be summarised as follows: (a) Most crimes may be committed either intentionally or recklessly, but there are some (such as murder) where the prosecution must prove the defendant intended the result. (b) Where intention is considered by the jury, they will usually rely on their common-​sense to assess the evidence and to decide whether the defendant intended the prohibited result. (c) If the defendant’s primary purpose was to bring about a particular consequence, they intended that consequence no matter how unlikely they were to succeed. This is direct intent. (d) In cases where the trial judge believes the jury would benefit from further guidance on determining the issue of intention (in cases of indirect intent), they should be told they can only find intention on the part of the defendant if satisfied that: (i) the consequence was virtually certain to occur; and (ii) the defendant foresaw that consequence as being virtually certain to occur. (e) In cases involving proof of intention, the motive of the defendant is usually irrelevant. The following flowchart summarises the approach the courts will take when deciding whether the defendant has the intention to commit a certain result. Figure 3.1 Intention Identify offence Actus reus Mens rea Was the result D’s aim or purpose? No Yes Was the consequence virtually certain to happen? Yes Did D appreciate this? No No Yes Direct Intent May be Not guilty Indirect Intent 38  General Principles: Mens Rea 3.3 Recklessness Whilst there are crimes that can only be committed intentionally, for the majority of the substantive offences, it is not necessary to establish an intention to do something on the part of the defendant: establishing that they intended or were reckless as to whether a consequence could occur or as to whether a circumstance might exist is sufficient to establish mens rea. Unfortunately, although recklessness is a critically important term in criminal law, Parliament has not created a statutory definition. As with intention, it is the judges who have been left to interpret the meaning of recklessness and, again, this has caused confusion to those involved in the criminal justice system. To a lay person, the term ‘reckless’ conjures up words such as ‘careless’, ‘without thinking’, ‘dangerous’ or ‘wild’ when talking about reckless behaviour. However, in criminal law, ‘reckless’ has a specific meaning, the definition of which has been considered and formulated by case law. In brief, it involves an examination of the risks involved in the defendant’s behaviour and the state of mind of the defendant when they took that risk. 3.3.1 Justification of risk A requirement for recklessness is that the defendant takes an unjustified risk so it follows that if they take a risk that is justified, they cannot be reckless. Assessing justification of risk in the abstract is impossible because much will depend on the facts of the case, including why the defendant decided to take that risk, what the risk was, what consequences occurred and so on. What is clear is that justification of risk will be assessed according to the standards of the reasonable person –​an objective test. The courts will consider the social utility or benefit involved in taking the risk when deciding whether it was justified. Prosecutors, members of the jury or magistrates, as reasonable people, will therefore apply their own standards. In simple terms, they will ask themselves whether they would have considered there to be any merit in taking the risk if they had been in the defendant’s position. In most situations, the taking of a risk that an illegal circumstance will exist or that an illegal consequence will follow from the defendant’s actions will be unjustified. As a result, in the criminal courts, very little time is taken up by considering whether the taking of a risk was justified, with that assessment having usually been made by the prosecution in deciding whether to proceed with a criminal charge. Indeed, the vast majority of cases will involve people who have been involved in an obviously unjustified activity. Although an essential ingredient of recklessness, the taking of an unjustified risk is not enough in itself to satisfy this type of mens rea, and the prosecution must also prove that the defendant had a particular state of mind when they took that risk. It is this aspect that will be considered next. 3.3.2 Recklessness –​subjective or objective? Traditionally, the courts took the view that a defendant was reckless if they foresaw a risk that something might happen as a result of their behaviour and, with that foresight, they went on, without justification, to take that risk. In the case of R v Cunningham 2 QB 396, Byrne J gave the leading judgment agreeing with the definition of ‘malice’ first expounded by Professor Kenny in 1902: Malice must be taken not in the old vague sense of wickedness in general but as requiring either (1) an actual intention to do the particular kind of harm that in fact 39 Criminal Law was done; or (2) recklessness as to whether such harm should occur or not (ie the accused has foreseen that the particular kind of harm might be done and yet has gone on to take the risk of it). Following the case of Cunningham, therefore, recklessness was regarded as requiring proof that the particular defendant foresaw the risk and went on to take it: the fact that the court felt that they should have foreseen it was not enough to establish recklessness. The meaning of recklessness was well settled until the early 1980s when the decision of the House of Lords in Metropolitan Police Commissioner v Caldwell AC 341 threw the area into turmoil and resulted for some 20 years in two different tests for recklessness. The judges decided that an objective standard should be imposed when assessing whether a defendant had behaved recklessly in the context of criminal damage. As a consequence, defendants who failed to give any thought to a risk which would have been obvious to the reasonable person would be judged as reckless under the criminal law in this context. The decision in Caldwell was the subject of much academic commentary and debate, and it was heavily criticised, not least because the test that applied depended on the offence with which a defendant was charged, leading to great confusion. 3.3.3 The current position Following a reconsideration of these issues in the case of R v G 1 AC 1034, the meaning of recklessness was clarified, with the House of Lords overruling the decision in Caldwell and returning to the ‘traditional’ interpretation. In the judgment given by Lord Bingham in R v G 1 AC 1034, he argued that Parliament intended ‘reckless’ to have the same meaning as put forward by the Law Commission in its Report on Offences of Damage to Property (Law Com No 29) published in July 1970 and in Working Paper No 23 which pre-​dated the Criminal Damage Act 1971. In his view, the Report revealed a very plain intention to replace the old-​fashioned expression ‘maliciously’ with the more familiar expression ‘reckless’ and to give ‘reckless’ the same meaning afforded to it by Cunningham 2 QB 396. Lord Bingham set out four reasons for overruling the objective test of recklessness as set out in Caldwell: (a) It is a basic principle that conviction of serious crime should depend on proof not only of the actus reus of the offence but also that the offender’s state of mind whilst doing the act (or omission) was culpable. It is not blameworthy to do something involving a risk of injury to another if the defendant genuinely does not perceive the risk. (b) The decision in Caldwell was capable of leading to obvious unfairness as it was neither moral nor just to convict a defendant on the strength of what someone else would have apprehended if the defendant had no such apprehension. (c) Criticism of Caldwell expressed by academics, judges and practitioners should not be ignored. (d) In Caldwell, the majority’s interpretation of s 1 of the Criminal Damage Act 1971 was a misinterpretation which was offensive to principle (of criminal law which requires subjective recklessness) and apt to cause injustice. Hence, the need to correct it was compelling. 40  General Principles: Mens Rea The effect is that there is now one test for recklessness, and this is subjective. A defendant is reckless if they foresee a risk that something may happen as a result of their behaviour (or a particular set of circumstances might exist) and, with that foresight, go on without justification to take that risk. An awareness of any level of risk, however small, is sufficient. Example Ryan punches Sydney once in the face during an argument over money. Sydney falls backwards, hits his head on the edge of a nearby table and suffers a fractured skull. The risk of causing injury would be considered unjustified by the standards of reasonable people as there is no social utility in punching someone due to a disagreement over money. However, given the circumstances (only one punch and no weapon used), it would be difficult to establish that Ryan intended to cause serious harm. The prosecution is far more likely to be able to prove that Ryan was reckless as to causing such harm, specifically that he foresaw there was such a risk but went on to take it anyway. This would satisfy the mens rea for a lesser assault. 3.3.4 Summary of recklessness The present law on recklessness can be summarised as follows: (a) The test for recklessness is subjective or Cunningham recklessness. This applies to any criminal offence in which recklessness forms part of the necessary mens rea. (b) The test is whether this defendant foresaw a risk (subjective) of whatever is required by the specific offence and went on to take it, and the risk is unjustified (objective). Set out below is an overview to assist your understanding. Figure 3.2 Recklessness RECKLESSNESS Was the risk unjustified? No Yes Did this D personally foresee the risk? No Yes Did D go on to take the risk? No Yes D is reckless D is not reckless 41 Criminal Law 3.4 Negligence Some offences may be committed without proof of intention or recklessness by the defendant. Where the mens rea only requires negligence, the defendant is judged on an objective standard that can be satisfied even if the defendant is unaware of the risk, provided it is an obvious one. Because the defendant is punished for failing to measure up to the standards of the reasonable person, this may operate harshly as the accused may not understand or even be capable of recognising the risk. The term ‘negligence’ is used extensively in the law of tort, as well as being a word in everyday language. It is generally understood to mean ‘carelessness’ and most incidents of negligence give rise to civil rather than criminal liability. For example, if a surgeon removed a patient’s healthy left kidney instead of the diseased right one, the doctor or the hospital could be sued for compensation. There are, however, some situations where, in addition to or instead of any civil claim, the negligent person could be prosecuted for a criminal offence. Examples (1) A motorist drives from a side road onto a main road without giving way to oncoming traffic. Here, the driver could be charged with the criminal offence of driving without due care and attention as they have fallen below the standard of the competent motorist (who would have given way). This form of negligence is specifically punished under an offence created by s 3 of the Road Traffic Act 1988. (2) A doctor prescribes medication to a patient whose records clearly show they have an intolerance to the drug prescribed. The error is spotted and no harm is suffered by the patient. Because of this, there is no criminal liability, despite the fact it was only good luck that saved the patient from taking the medication and suffering potentially dangerous consequences. (3) As in (2) above, but the patient dies from an allergic reaction to the prescribed medication. Logically, as the doctor’s behaviour was identical, the outcome should be the same. However, because the patient died as a result of the doctor’s negligence, in this instance, they could be criminally liable for the death. (4) A bank cashier wrongly reads the figures on a cheque and pays a customer £10 instead of £100. Although the cashier has behaved negligently, the criminal law does not acknowledge such an act of carelessness as a criminal offence. Again, therefore, whilst the customer may have a right to sue in the civil courts and/​or the cashier could be disciplined, no criminal proceedings will follow from such behaviour. In the situations above, the person could be said to have acted carelessly and in a way that would not be expected of a reasonable person in that position. However, although all the individuals were negligent, not all would be criminally liable as this depends upon the outcome and whether there is a specific crime that covers that type of negligent behaviour. There is therefore no general criminal offence of behaving negligently. 42  General Principles: Mens Rea 3.4.1 Negligence and common law offences Only rarely does negligence give to rise criminal liability in the common law, but an offence where negligence satisfies the mens rea is gross negligence manslaughter. Example Mrs McVey has warned the school attended by her son, Cameron, that Cameron has a severe, life-​threatening, allergy to nuts. The information has been passed on to all the catering staff. Despite this, one lunchtime, Cameron is given a sandwich by Donna that has traces of nuts in it. This fact is clearly highlighted on the label, which also states that the sandwich should not be eaten by anyone with a nut allergy. Cameron takes a bite of the sandwich, suffers an extreme allergic reaction and dies. The catering assistant, Donna, may be liable for the offence of gross negligence manslaughter. This is because her actions may be judged as having fallen so far below the standard of the reasonable employee (the objective standard) as to be criminally liable. 3.4.2 Negligence and statutory offences Negligence appears far more often in the definitions of statutory offences. One such example is driving without due care and attention contrary to s 3 of the Road Traffic Act 1988, which provides: If a person drives a mechanically propelled vehicle on a road or other public place without due care and attention, or without reasonable consideration for other persons using the road or place, he is guilty of an offence. As this is a crime of negligence, the prosecution need not prove that the defendant intended to drive in this way, nor that they behaved recklessly. To be guilty of this offence, all that is required is that the defendant did drive without due care and attention (or without reasonable consideration for other road users) –​their state of mind at the time is irrelevant. The court will simply assess whether the standard of the defendant’s driving measured up to that of a reasonable driver and any deviation from this, no matter how slight, can lead to criminal liability. Examples (1) Daisy drove at 30 miles per hour in the outside lane of a motorway to get a better view of an accident that had just occurred on the opposite carriageway. (2) Krishnan failed to give way when entering a major road. He passed his driving test the day before this incident occurred. (3) Gwyn drove through a red traffic light because he was anxious to get his pregnant wife to hospital. All these drivers fell below the standard of the reasonable motorist and would be convicted of driving without due care and attention. This is because no account is taken of the person’s experience or the reason why they drove in this way, so it is irrelevant that Krishnan had only just passed his test and Gwyn was trying to help his wife. 43 Criminal Law Although it might be submitted that those who are inexperienced at driving should be assessed against the standards of the reasonable newly qualified driver, this argument would fail. In McCrone v Riding 1 All ER 157, the test to be applied in assessing whether an individual would be guilty of an offence of careless driving was discussed by Lord Hewart CJ: [The] standard is an objective standard, impersonal and universal, fixed in relation to the safety of other users of the highway. It is in no way related to the degree of proficiency or degree of experience attained by the individual driver. Hence, even if a driver has a very good excuse for acting as they did, this will be disregarded. In the examples (above), any information about what happened as a result of the careless driving has deliberately been omitted. There are no references to accidents, damage to property or personal injury to any individuals, and this is because such matters are not taken into account in deciding liability under s 3. It is the manner of the driving that is important, not the consequences of it. Serious incompetence on the part of a motorist can lead to a more serious charge under s 2 of the Road Traffic Act 1988, namely the offence of dangerous driving. In order to secure a conviction, the prosecution would have to establish that the defendant drove ‘a mechanically propelled vehicle dangerously on a road or other public place’. Under s 2A(1), the defendant must have driven in a manner which fell far below what would be expected of a careful and competent driver, and it would be obvious to the careful and competent driver that driving in such a way would be dangerous. Alternatively, under s 2A(2), the defendant will be driving dangerously if the condition of their vehicle is such that it would be obvious to a careful and competent driver that driving it in that condition would be dangerous. In all cases under s 2A, therefore, the defendant is being assessed by the standards of the reasonable person (the careful and competent driver). They will only be guilty of an offence under s 2, however, if their behaviour has fallen far below what would reasonably be expected of a such a driver. Something more than the simple negligence required for careless driving is necessary. 3.4.3 Summary of negligence For crimes where the mens rea may be satisfied by negligence: (a) A person is punished simply for failing to measure up to the standards of the reasonable person. (b) Although both recklessness and negligence involve the taking of an unjustifiable risk, there is a key difference: (i) recklessness is the conscious taking of an unjustifiable risk; (ii) negligence is the inadvertent taking of an unjustifiable risk. In other words, negligence can be proved simply by showing that the defendant’s conduct fell short of an objective standard. (c) Although the defendant may also have acted intentionally or recklessly, this is not required to establish criminal liability; it is what the defendant did that is relevant. (d) Because the test is objective, individual considerations are not taken into account. Set out below is an overview of negligence to assist your understanding. 44  General Principles: Mens Rea Figure 3.3 Negligence The test is objective (Usually) statutory D is assessed offences against the reasonable person NEGLIGENCE Relevant Irrelevant D’s actions D’s state of D’s (lack of) D’s motive mind experience 3.5 Strict liability offences Another situation when a defendant may be convicted of a crime without having mens rea is where the offence is one of strict liability. Such an offence is one where, in relation to some element of the actus reus, neither mens rea nor negligence is needed for a conviction. 3.5.1 Type of offences The vast majority of strict liability offences have been created by statute. They are designed to regulate certain types of behaviour with the aim of discouraging incompetence and unsafe actions, whilst encouraging greater vigilance and safety. Most do not apply to the population at large but rather to those people who are engaged in particular forms of conduct. For example, health and safety provisions often create offences of strict liability, as does legislation relating to the environment or the misuse of drugs. Similarly, there are numerous road traffic offences (such as driving without insurance) and licensing laws (serving alcohol ‘after hours’) which are strict liability offences. At times, the strict liability rule may operate harshly, for example, in Smedleys Ltd v Breed AC 839, a small caterpillar was found in one of millions of tins of peas sold by the defendant. The company was found guilty under the Food and Drugs Act 1955 despite the difficulties of preventing such an event and the fact they had taken all reasonably practical steps to do so. The justification for the offence being strictly liable was the importance of consumer protection –​a matter of social concern. Strict liability may also result in injustice where the defendant inadvertently commits the actus reus without any criminal intent. In Pharmaceutical Society of Great Britain v Storkwain Ltd 2 All ER 635, a pharmacist supplied prescription drugs after being presented with a fraudulent prescription. The pharmacist was not involved in the fraud, had no knowledge that the doctor’s signature was forged and believed the prescription was genuine. However, despite being entirely blameless in the situation, because the offence under s 58(2) of the Medicines Act 1968 is one of strict liability, the pharmacist was convicted. 45 Criminal Law There are various public policy reasons as to why these offences are strictly liable. Not having to prove mens rea makes criminal prosecutions much simpler from an evidential point of view and removes a potentially significant line of defence from the accused. Trials tend to be quicker and hence cheaper, as they occupy the court for less time, and the conviction rate is generally higher. 3.5.2 Determining strict liability offences To determine whether an offence is one of strict liability, the courts will look at the statutory definition. If there is a clear indication in the legislation that a particular type of mens rea or proof of negligence is required, there will of course be no problem –​the offence will not be one of strict liability. Similarly, if the provision makes it clear that the crime is to be one of strict liability, the courts will proceed according to the direct indication from Parliament. Sections 1 and 2 of the Contempt of Court Act 1981 are rare examples of statutory provisions which specify, within the statutory definition, that the offence is one of strict liability. Section 1 states: In this Act ‘the strict liability rule’ means the rule of law, whereby conduct may be treated as a contempt of court as tending to interfere with the course of justice in particular legal proceedings regardless of intent to do so. Section 2(1) provides that the strict liability rule applies only in relation to publications. In some statutes, however, Parliament has omitted any reference to whether mens rea or negligence is required. Example Section 5 of the Road Traffic Act 1988 states: (1) If a person—​ (a) drives … a motor vehicle on a road or other public place … after consuming so much alcohol that the proportion of it in his breath, blood or urine exceeds the prescribed limit he is guilty of an offence. The actus reus elements of the crime are: driving (1); a motor vehicle (2); on a road or other public place (3); and with an excess amount of alcohol (above the prescribed limit) in the driver’s blood, breath or urine (4). However, there is nothing in the definition that suggests any mens rea or negligence requirements; for example, there is no mention of words such as ‘with intent’, ‘recklessly’ or ‘without due care’. This could mean that the offence is one of strict liability, but absence of a reference to mens rea or negligence in the definition is not conclusive proof to that effect. In fact, this offence is a crime of strict liability: under s 5 of the Road Traffic Act 1988, a person who drives after consuming excess alcohol is guilty even if they did not know or foresee the risk that the amount of alcohol they had consumed would exceed the prescribed limit, or indeed if they were unaware they had been drinking alcohol at all (for example, if their drinks had been spiked). Thus, the defendant can be convicted even though they lacked 46  General Principles: Mens Rea mens rea for the crucial element of the offence, namely, that their alcohol level exceeded the prescribed limit. To assist in determining whether a crime is one of strict liability, the House of Lords provided guidance in the case of Sweet v Parsley AC 132. In his judgment, Lord Reid made the following important points: (a) If the words of the statute make it clear either that the offence is one of strict liability, or that mens rea is required, that is the end of the matter: the court will proceed accordingly. (b) If there is no indication, there is a presumption that ‘Parliament did not intend to make criminals of persons who were in no way blameworthy in what they did’: and so there is a presumption that the courts should ‘read in words appropriate to require mens rea’ in order to give effect to the will of Parliament. (c) However, this presumption can be overturned if ‘some reason can be found for holding that (mens rea) is not necessary’. (d) The fact that other sections of a statute do require mens rea is not conclusive proof that a section which is silent on mens rea is intended to impose strict liability. (e) Where a section is silent as to mens rea, the courts will need to go outside the wording of the Act to establish the intention of Parliament, specifically, to decide if the crime is one of strict liability. (f) Lord Reid felt that a distinction should be drawn between ‘quasi-​criminal acts’ and ‘truly criminal acts’. In the former, the courts may easily decide to infer strict liability where the statute is silent. However, in the latter type, the court should be more reluctant to do so having regard to the stigma attached to a criminal conviction and the potential undermining of confidence in the judicial system if ‘manifestly unjust’ convictions are publicised. In R v Brown (Richard) UKSC 43, the Supreme Court emphasised the importance of the presumption of mens rea, stating that it was a ‘constitutional principle’ that should only be displaced where the statutory wording was either very clear or it was an ‘unmistakably necessary implication’. Lord Kerr went on to say that this presumption was even stronger where the offence was one that could be described as ‘truly criminal and carries a heavy penalty or substantial social stigma’. 3.5.3 Summary of strict liability (a) Offences of strict liability are exceptions to the general rule that mens rea is required for criminal offences. (b) A person may be convicted of an offence even though they lack the mens rea for one or more elements of the actus reus. (c) In some instances, the statute expressly states that the offence created is one of strict liability or uses words, such as ‘intentionally’, that make it clear it is not. (d) In the absence of anything express, a rebuttable presumption applies that the offence is not strictly liable. (e) Usually the higher the social stigma and the greater the penalty on conviction, the more likely that mens rea will be required. Set out below is an overview of strict liability to assist your understanding. 47 Criminal Law Figure 3.4 Strict liability STRICT LIABILITY OFFENCES DEFINITION CONTENT JUSTIFICATION Mens rea is not required Food and road safety, consumer Public policy – to protect for one or more elements protection, the environment, health the public and make of the actus reus and safety, misuse of drugs etc conviction easier TYPE IDENTIFICATION (Usually) created by The wording of the statute is statute and clear that the offence is strictly regulatory in nature liable or that it requires mens rea If the statute is silent there is a presumption in favour of mens rea which can be rebutted Factors the court will consider: the statute as a whole social context / danger of activity penalty / stigma of conviction whether the offence is ‘truly’ criminal Having analysed the mens rea of intention and recklessness, and identified the exceptions to the general rule that mens rea is required for criminal offences (negligence and strict liability offences), the remainder of this chapter covers other relevant legal principles. 3.6 Transferred malice On occasion, the defendant may attack the wrong person, or steal the wrong property, and this is where the doctrine of transferred malice comes into play. Example Terianne hates Jane and wants to kill her. She points a gun at Jane’s bedroom window planning to shoot and kill her. She sees Jane at the window, fires the gun and runs off into the night, believing she has killed Jane. In fact, her shot missed Jane and hit Sally, Jane’s flatmate. Sally dies from her injuries and Terianne is charged with murder. 48  General Principles: Mens Rea Terianne has the actus reus of murder as she has killed a human being (Sally). But does she also have the mens rea of murder, in other words, did she intend to kill or cause really serious harm? With regard to her actual victim, Sally, the answer is, of course, ‘no’: she did not intend to kill Sally or cause her serious injury –​in fact, Sally was her best friend and she is devastated by her death. However, Terianne intended to kill someone (Jane), and this is sufficient to justify a conviction for murder. This is logical as it would be unjust for Terianne to avoid liability just because she shot a different victim to that intended. The outcome is achieved through the doctrine of transferred malice. This confirms that if a defendant has the ‘malice’ (intention or recklessness) to commit a crime against one victim (or one particular piece of property), the malice is transferred so that the mens rea they had in relation to their original victim is transferred to the actus reus they commit against another, unintended victim. This is demonstrated by the diagram below which illustrates how Terianne’s mens rea for murder in relation to Jane (she wanted to kill her), is transferred and coupled with the actus reus she commits of killing Sally to make her guilty of this offence. Terianne intends to kill actually kills Sally Jane (mens rea of (actus reus of murder) murder) ‘malice transferred’ In the same way, if the defendant plans to scratch his ex-​wife’s car, thus causing criminal damage, and by mistake scratches the (very similar) car belonging to her husband instead, he is still guilty of criminal damage. The mens rea of criminal damage that he had in respect of his ex-​wife’s car is transferred and combines with the actus reus of damaging her husband’s car. The doctrine makes sense as, in both the cases above, the defendant has the mens rea for the type of crime they commit. It is right, therefore, that they should be held responsible for their actions and should not escape criminal liability simply because their plan failed. The authority for the doctrine of transferred malice is R v Latimer (1886) 17 QBD 359. In this case, the defendant was quarrelling with a man referred to as C in a public house. The defendant aimed a blow at C with his belt, but the belt glanced off C and struck another person (R) who was badly injured. The defendant was charged with an offence of unlawfully and maliciously wounding R contrary to s 20 of the Offences Against the Person Act 1861. He argued that the blow to R had been an accident and he therefore lacked the mens rea necessary to secure a 49 Criminal Law conviction for assault. In dismissing the defendant’s appeal against conviction for assaulting R, Lord Coleridge CJ said: We are of the opinion that this conviction must be sustained. It is common knowledge that a man who has an unlawful and malicious intent against another, and in attempting to carry it out, injures a third person, is guilty of what the law deems malice against the person injured, because the offender is doing an unlawful act, and has that which the judges call general malice, and that is enough. However, the law would be too onerous if a defendant were to be held criminally liable for every unintended consequence, and so a limitation is placed on the doctrine of transferred malice. Example Isabella intends to hit Sunita on the head by throwing a stone at her but the stone misses, bounces off a nearby tree and breaks a window. The issue is whether Isabella may be charged with criminal damage (to the window) on the basis that she showed ‘malice’ towards Sunita (she intended to hit her). In this instance, her malice for assault cannot be transferred to give Isabella the mens rea required for criminal damage. Although it may seem logical that, as Isabella had some form of criminal intent, that intent could be transferred to whatever crime she did in fact commit, this is not what the law says. The reason is that the crime actually committed (criminal damage) was of a wholly different nature from that which she had planned (assault). The case of R v Pembliton (1874) LR 2 CCR 119 is authority for this. The defendant had been fighting with people in the street and threw a stone at them, which struck and broke a window. He was convicted of an offence of ‘unlawfully and maliciously’ causing damage to property, but successfully appealed. The decision in Pembliton confirms that the doctrine of transferred malice will only apply if the actus reus committed is the same type of crime as the defendant originally had in mind. Transferred malice is a useful vehicle by which (apparently deserving) defendants can be convicted of the appropriate offence. However, most offences may be committed recklessly and, in such circumstances, the doctrine is unlikely to be required at all. Example Edward throws a vase at William intending to strike him, but he misses and hits William’s friend, Dido, who is standing next to him. This would be sufficient for the actus reus of the offence of physical assault. Although the prosecution could rely upon the doctrine of transferred malice, there is another basis upon which Edward could be convicted. Most offences (murder being an obvious exception) can be committed recklessly. Although Edward does not intend to hit Dido, he may be reckless as to doing so. If the prosecution can prove that Edward foresaw even the smallest risk of hitting Dido, and he went on to take that risk, he is guilty of physical assault. Given that Dido is standing so close to William, it is likely that the court will find that he satisfies the mens rea of recklessness. 50  General Principles: Mens Rea 3.6.1 Summary of transferred malice To conclude: (a) Under the doctrine of transferred malice, the defendant’s intention towards A may be transferred to B where they commit the actus reus of the same offence in relation to B. (b) Malice may be transferred from person to person, or from object to object. (c) There is a limit to the scope of this doctrine; where the actus reus and mens rea relate to different types of offences, transferred malice does not operate. (d) If the mens rea of the offence includes recklessness, it may not be necessary to consider the doctrine of transferred malice at all. 3.7 Coincidence of actus reus and mens rea Although actus reus and mens rea are discussed in two different chapters, the concepts are inextricably linked. For there to be criminal liability, it is essential that the actus reus and mens rea coincide in time; in other words, the accused must have the required mens rea at the same moment they commit the actus reus. Example Silas has been involved in a dispute with his neighbour (Howard) for months over a planning issue. He is furious when Howard is granted the planning permission he applied for, and Silas decides that he will kill Howard. However, Silas does not take any action and so, because there is no actus reus, he is not criminally liable. After speaking to his wife, Silas calms down and decides to continue painting the outside of his house. As he is doing so, his neighbour walks past and, just at that moment, Silas accidentally drops a tin of paint. The tin lands on Howard’s head, killing him. At this point, Silas has the actus reus for murder but not the mens rea, so again no criminal liability. 3.7.1 Continuing act To ensure that the actus reus and mens rea do coincide in time, so the defendant may be convicted of the relevant offence, the courts have been willing to stretch the concept of an act. In Fagan v Metropolitan Police Commissioner 1 QB 439, the defendant was sitting in his car when he was approached by a police officer who told him to move the vehicle. Fagan accidentally reversed the car onto the officer’s foot. At this point, Fagan lacked the mens rea for an offence as his action was inadvertent. However, when he realised what had happened, he refused to move the car and turned the engine off. He was found guilty of assault on the basis that the actus reus was a continuing act that coincided at some point with the required mens rea. It is apparent from this case that, where an actus reus may be brought about by a continuing act, it is sufficient that the defendant had mens rea during its continuance despite not having the mens rea at its commencement. 3.7.2 Single transaction In the case of a continuing act, there is one act to which the mens rea is linked. However, the issue has also arisen where a combination of events has led to the unlawful outcome. In 51 Criminal Law such circumstances, the courts have been similarly imaginative in circumventing the principle of coincidence of actus reus and mens rea. They have achieved this by the interpretation of a number of consecutive events as a ‘single transaction’. This overcomes the complexes of determining criminal liability if it is not possible to identify when a result occurred or what caused it. Example Jim, as part of his plan to kill Kaydian, hits him over the head with a bottle. Believing that Kaydian is dead, Jim decides to dispose of the body by throwing it over a cliff to make the incident look like an accident. Kaydian, however, did not die when he was hit with the bottle but died of exposure some time later. The actus reus of the offence of murder is the killing of a human being and clearly, as a result of Jim’s actions, Kaydian is dead. The mens rea of murder is an intention to kill or cause really serious harm. When Jim hit Kaydian over the head with the bottle, his motive was to kill him and therefore he had direct intent to kill. However, as Kaydian survived the attack, the actus reus was not present. When Kaydian actually died (the actus reus of murder), Jim thought he was disposing of the corpse, and, therefore, he did not have the necessary mens rea. The facts of the above example are similar to the case of Thabo-​Meli v R 1 All ER 373. The Privy Council rejected the defendant’s argument that the actus reus and the mens rea did not coincide, with Lord Reid stating that ‘it was impossible to divide up what was really one series of acts’. Rolling the body over the cliff was part of a preconceived plan and just one of a number of acts which essentially amounted to a single transaction. It was held that the defendant had the mens rea when he set out and should not avoid liability just because he thought (at the time of the victim’s death) that his plan had already been achieved. Later cases have confirmed the decision in Thabo-​Meli and have also extended it to situations where there is no pre-​arranged plan but there is a continuous series of events. In the case of R v Le Brun 4 All ER 673 the defendant assaulted his wife and then tried to move her. His wife slipped from his grip and banged her head on the pavement, thereby suffering a fractured skull from which she died. The defendant was charged with manslaughter but argued that the cause of death was an accident. He stated that he had the mens rea (of assault) when he hit his wife but that had not caused her death, so there was no actus reus at that stage. Death was a genuine accident and he therefore did not have the mens rea of any offence at the time when death was caused. The defendant’s conviction was upheld by the Court of Appeal. Lord Lane said that where the unlawful application of force (hitting his wife) and the eventual act causing death (dropping her) were part of the same sequence of events, the fact there was a lapse in time between the two did not enable the defendant to escape liability. 3.7.3 Summary of coincidence of actus reus and mens rea (a) The general position is that before there can be criminal liability, the actus reus and mens rea must coincide in time. (b) There are two exceptions to this rule: (i) The continuing act principle applies where the defendant’s act satisfies the actus reus of an offence and, at some point, they also have the necessary mens rea for that offence. 52  General Principles: Mens Rea (ii) The single transaction principle is likely to arise where there is an implied series of events and from the outset the defendant seems to be involved in criminal activity. Provided the eventual act that causes death is part of the same sequence of events as the initial act, it does not matter that there is a time lapse between the two. 3.8 Basic, specific and ulterior intent Earlier in this chapter, the mens rea elements of direct intent and indirect intent were discussed. However, the word ‘intent’ is also used in a different context in the criminal law, namely, to classify offences. An appreciation of what is meant by basic, specific and ulterior intent is vital to understanding, for example, the defence of intoxication. Most offences are crimes of ‘basic intent’. These are traditionally defined as those offences where a lesser form of mens rea is required than intention. Thus, criminal damage and most assaults will fall within this category as either intention or recklessness will satisfy the mens rea. In contrast, ‘specific intent’ offences are those where the only mens rea that will suffice to convict a person of the crime is that of intention. Examples are murder, assault under s 18 of the Offences Against the Person Act 1861 and theft. Reference to ulterior intent also appears in relation to some criminal offences, for example, burglary. When this term is used it means that the prosecution must prove an ‘extra’ element of mens rea against the defendant before it can secure a conviction. Essentially, in addition to establishing that the defendant committed the actus reus of an offence with the appropriate mens rea, in offences of ulterior intent, the prosecution must also prove that the defendant had an additional mens rea, namely, that they intended to produce some consequence which went beyond the actus reus of the crime (even though they might not have actually succeeded). Although this sounds complicated, the concept is straightforward when applied to a concrete example such as burglary. Under s 9(1)(a) of the Theft Act 1968, a person is guilty of burglary if: ‘he enters any building or part of a building as a trespasser and with intent to commit theft or inflict grievous bodily harm or criminal damage’. The actus reus of the offence is entering a building or part of a building as a trespasser. The basic mens rea is that, on entry, the defendant must either know they are entering as a trespasser or foresee the risk that they may be trespassing. However, proving these two elements will not be enough to convict a defendant of burglary under s 9(1)(a). In addition, the defendant must be shown to have an ulterior intent to steal, to inflict grievous bodily harm, or to cause criminal damage once they are in the building. They do not actually have to do any of these but the extra state of mind (an intention to do so) must be established if the defendant is to be convicted of burglary under s 9(1)(a). 3.9 Ignorance of the law Although for most serious crimes the defendant must intentionally or recklessly commit the actus reus of the offence, there is no requirement for the defendant to appreciate that what they are doing is criminal. Ignorance of the criminal law is never a defence, even where it was impossible for the defendant to have known the law. 3.10 Mistake of fact On occasion, the defendant makes a mistake of fact which causes them to believe their conduct is innocent. In this instance, the defendant lacks some knowledge which is needed for the mens rea. An example will illustrate. 53 Criminal Law Example After his exams, Ted picks up a textbook wrongly believing that it is his and rips it up, before throwing it in the bin. Unfortunately, it is his friend’s textbook. For the offence of criminal damage, the defendant must realise that the property destroyed or damaged does or might belong to another. If the defendant wrongly believes that they own the property, they will lack the necessary mens rea of the offence and will therefore not be liable. If believed, Ted would not be guilty of criminal damage. Alternatively, a defendant may consider a risk and, as a result of a mistake, wrongly conclude that there is none. Here the defendant would escape liability if the crime in question required the mens rea of either intention or recklessness. It is important to note that there is no separate defence of mistake. It is simply that the mistake may prevent the prosecution from proving the necessary mens rea for the offence or provide the basis of a defence, for example that of self-​defence. A genuine, albeit unreasonable mistake may be sufficient to negate the mens rea requirement of an offence, as mens rea depends on what this particular defendant thought. Inevitably, however, the more unreasonable the defendant’s mistake is, the less likely the court is to believe that it was an honest one (see s 8 of the Criminal Justice Act 1967 considered earlier). 3.11 Summary of actus reus and mens rea It is important to understand the concepts of both actus reus and mens rea as they provide the underlying structure to the criminal law; effectively, they are the ‘coat-​hanger’ upon which hang all the various elements of the different offences. Figure 3.5 Actus reus and mens rea ACTUS REUS / MENS REA Identify offence Actus reus Mens rea Conduct Result State of Intent Strict Recklessness Negligence crime crime affairs liability Factual Legal + Direct Indirect Subjective causation causation 54  General Principles: Mens Rea That concludes our consideration of the basic principles of criminal law. To assist your understanding of these concepts, you should attempt the activity below. ACTIVITY Barry, a man of low intelligence, sets fire to his council property to try and force the local authority to rehouse him and his family. The fire quickly takes hold and within minutes the house is burning ferociously, destroying the stairs so that, although Barry and his wife manage to escape, their two young children are trapped in the bedroom. They are overcome by the smoke and die before they can be rescued. Barry is devastated by the deaths as he genuinely loves his children. To convict Barry of murder, the prosecution must prove that the defendant intended to kill or cause grievous bodily harm. (1) Does Barry have direct intent for murder? (2) If not, is the test for indirect intent satisfied? (3) If Barry denies the mens rea, what provision may help the jury in assessing his evidence? COMMENT (1) Barry is adamant that it was not his intention to kill his children or to cause them grievous bodily harm. Furthermore, doing so would defeat his aim or purpose as the family would not be rehoused in these circumstances. (2) Indirect intent: If the jury is not satisfied that Barry had direct intent to kill or cause grievous bodily harm, they will be directed as follows: (a) Was the consequence –​the death of the children –​virtually certain to occur as a result of Barry’s act? Given that he set fire to a house at night, knowing there were young children asleep upstairs, the jury is likely to conclude that the objective test is satisfied. (b) Did Barry appreciate that the deaths were virtually certain (subjective)? This is more problematic and would depend upon his evidence. Barry may have been confident that he and his partner would be able to get the children out of the house before the fire took hold. However, although Barry is of low intelligence, the risks and consequences of a house fire are well known and may be found to be within his contemplation. (3) To assist, under s 8 of the CJA 1967, the jury may take into account what a reasonable person would have foreseen when deciding what this particular defendant foresaw. Even so, given the evidence that Barry loved his children, it is unlikely the jury would find such intent. 55