CRIMINAL LAW

Tutorial Answer Guide

Issue: Mens Rea
Question:
Q.1 Pg. 2 ( June 1990 Overseas )

A and B were engaged in the sport of archery. A asked B, “Could you hit that shed door at the bottom of the field?”
B replied that, as the Welsh Longbow champion, “there should be no doubt in my ability to hit it”. A knew that C
was in the shed sleeping and intended that C should be frightened by the noise of the arrow hitting the door. B was
ignorant of the fact that anyone was in the shed. B aimed at the shed door and, after B had discharged the arrow, C
opened the door and was struck by the arrow.

Advise A and B of their criminal liability. How would your advice differ if C had died from the wound?

Suggested answer :

A may have incited B to commit criminal damage.A and B may have conspired to commit unlawful damage of the
shed door . They can also be charged with attempted criminal damage of the door.A and not B may be liable for
wounding C. If C had died from the wound, A and B would be liable as accomplices for committing unlawful act
manslaughter.

The mens rea required for incitement to commit criminal or unlawful damage to the shed door which is property
belonging to another person is strict intention (Curr 1968 ). A definitely intended to incite B to hit the door and by
asking him whether he can hit the door and thereby encouraging him to do so (Race Relations Board v. Applin
1973) has also committed the actus reus of incitement. He therefore has committed this offence.

The offence of conspiracy requires the mens rea of strict intention to commit the actus reus, here, shooting the arrow
at the shed door ( s.1(1) (a) Criminal Law Act 1977, Anderson ) and the actus reus of agreement between Aand B
that B should shoot at the door. The agreement can be implied as indicated by A’s encouragement of B to shoot at
the door. They have therefore conspired to hit the shed door with an arrow.

When the arrow missed the door, A and B can be charged as accomplices with attempted criminal damage of the
door. A has done an act more than merely preparatory towards hitting the door and they both have the intention that
the door should be hit (s.1(1)Criminal Attempts Act 1981, Jones 1990, Pearman 1985 ).

B was ignorant of the fact that anyone was in the shed, Therefore he would not have intended, nor was he
subjectively reckless that C could be hit by the arrow (Cunningham).

A , however knew that C was in the shed. He intended C to be frightened by the sound of the arrow.

The actus reus of s.20 0ffences Against The Person Act 1861i.e. unlawfully and maliciously wounding a person is
satisfied as C is struck by the arrow (JJC v. Eisenhower ). Although A did not shoot the arrow, he has caused the
injury to C indirectly by inciting B to shoot at the door. Alternatively, A has caused B to shoot at the door and
thereby injure C (Mitchell ).

The key issue here is mens rea. A merely intended to frighten C. It was held in Savage/Parmenter AC1992 that a
defendant must not only intend or be subjectively reckless as to the injury caused (Cunningham), he must also have
foreseen some harm , however slight to the victim (Mowatt). It was held in Sullivan that where a person intends to
frighten another, he does not foresee any harm however slight. Therefore the second element of mens rea cannot be
established in A’s case.

However, A can be found guilty under s. 47 OAPA1861. The mens rea required here is merely Cunningham
intention that the act be committed (shooting the arrow). There need not be any any mens rea towards the
consequence or actual injury caused ( Roberts 1971 as confirmed in Savage1992 ). It should be noted that the

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maximum punishment under s.20 and s.47 is five years’ imprisonment so the distinction is a technical point or
matter of law. It would not affect A’s sentence.

If C died from the wound, A and B would be accomplices to unlawful act manslaughter. They have agreed that B
would commit the unlawful act (criminal damage ) which resulted in C’s death (Church) and they had intended that
the arrow be shot (Newbury and Jones1976AC). It is immaterial that they had no mens rea regarding the actual
injury caused to C (Goodfellow1986).