Following a recent AML training session we looked at the dividing line between ‘recklessness’ and ‘negligence’ as it is important AS It provides the dividing line between the subjective and the objective approaches to mens rea.

There are two basic methods of judging mens rea.

1. First of all the court can examine what was going on in the defendant’s head; what he or she was thinking about, was aware of, was planning, was desiring, etc.
   1. this is called the subjective approach;
2. the court are focusing on the subject’s perspective.
3. Alternatively the court can focus on the quality of the defendant’s conduct; was it silly, foolish, dangerous, careful, diligent, etc.?
   1. this is called this the objective approach;
4. the court are focussing on how the behaviour compares to an objective standard.

With a subjective mens rea the court have to examine what the defendant was ‘thinking,’ using ‘thinking’ in a very broad sense.

1. The court will examine behaviour because that may give clues.

1. He had shouted, “I’ll kill you!” He had aimed the gun and squeezed the trigger.

2. This behaviour implies that he intended.

3. The court is not judging the behaviour, rather the court are using it to try and work out what ‘was going on’ in the defendant’s head.

1. FOR EXAMPLE – Sue may say it was all a mistake, she only meant to frighten Andy.

4. The judge and jury will have to take that into account in trying to discover whether Sue intended Andy’s death –

1. they cannot assume, just because most people would have intended, that this defendant also did.
2. The defendant might only have been trying to frighten.

5. But the court can infer intention from the facts.

1. The court does not have to believe the defendant although Ideally the court would want much more information.

1. Perhaps there is evidence of a long-term hatred of the victim, a motive; perhaps there is a confession.
2. The court might infer that he intended because he said he intended in his confession. But he may now be saying his confession was false.

6. The judge or jury will have to decide whether they are satisfied, beyond reasonable doubt, that the Actus Reus was intended.

With an objective mens rea the court is not worried wat the defendant was thinking.

1. The court are only concerned with the quality of the behaviour.

2. The court compare it with others’ standards was it dangerous, careless, etc..

1. Was driving at that speed, in those conditions, careless?
2. Was swinging that sword, so close to people, dangerous?
3. Was dealing with a client without all the relevant CDD careless, dangerous?

Differences

1. If an offence has a subjective mens rea then the judge and jury must examine what the defendant was ‘thinking.’
   1. Not what he or she should have been thinking,
   2. Not what others might have thought in his or her circumstances,
   3. But what he or she was actually ‘thinking.’

2. If the offence has an objective mens rea then the judge and jury must focus on the QUALITY OF THE BEHAVIOUR.

Finally – If it is a strict liability offence then the judge and jury should not look for a mens rea as it is irrelevant; only causation of the actus reus.