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Mens Rea

Mens rea -> The legal term used to describe the element of a criminal offence that
relates to the defendants mental state. The basic principle of mens rea is that conduct
(or causing a consequence) alone should not be enough. There is a requirement of
blameworthy state of mind. The exception to this is strict liability.
Actus non fit reus nisi mens sit rea = Act isnt guilty unless the mind in guilty.
The defendant must normally be shown to have the relevant mental element at the time
the act comprising offence is committed.

Actus Reus + Mens Rea + absence of defence = liability


Harm + Blame = liability
Conduct + Fault = liability
Different crimes have mens rea; some require intention, others recklessness, negligence,
or knowledge.
Examples of mens rea include; dishonesty, belief, knowledge, intention, maliciousness
and recklessness. Mens rea helps define the difference between murder and
manslaughter, although the conduct is the same, in the conviction of murder intention
to harm is needed, whereas for manslaughter this intention is not required.
Strict liability offences do not require proof of any mental state of the defendant.
Regulatory offences and strict liability, are those offences where you can be found guilty
without the prosecution having to prove the guilty mind. You can be prosecuted on your
conduct alone. Eg, parking fines are strict liability as it does not matter if you have the
intention/recklessness or not. The majority of crimes are strict liability.
It has often been suggested that mens rea plays the crucial role of ensuring that only
blameworthy defendants are punished for their crimes. Someone who causes anothers
death by an unforeseeable accident does not deserve punishment; someone who causes
anothers death intentionally does. However, in assessing a defendants
blameworthiness his state of mind is only part of the picture. A mercy killer and a
contract killer may both intend to kill, but most people would not regard their actions as
equally wicked.
Why is a guilty mind important?
Link between responsibility & criminal liability.

How is responsibility assessed?


Subjective approach
To see if somebody intended to kill somebody or whether they did it recklessly. To look at it
from the viewpoint of the defendant them self. Judge recklessness from a subjective viewpoint.
Did they know there was a risk? Did they foresee the consequence of murder? understand it from
the defendants point of view

Objective approach
The reasonable persons test. The objective assessment is about asking what the reasonable
person would have seen/intended/planned not what the defendant would have.
Every offence will have its own mens rea.
Capacity/Choice theory: knowledge, reason, control capacity to make choices and
control behaviour (dominant approach)
One has to have the capacity to understand what they are doing and have to be in control of their
actions. Everybody has the capacity to choose between right and wrong. In order to be liable
under criminal law, you have to be aware of the nature of your actions, know the relevant
circumstances and be aware of the possible circumstances.
Nicola Lacey in State Punishment: Political Principles and Community Values (1988,
63):This conception of responsibility [from H.L.A. Harts Punishment and Responsibility
(1968)] consists in both a cognitive and a volitional element: a person must both
understand the nature of her actions, knowing the relevant circumstances and being
aware of possible consequences, and have a genuine opportunity to do otherwise than
she does to exercise control over her actions, by means of choice.
Ashworth, Principles of Criminal Law 5th ed (2006: 85-86): The essence of the principle
of autonomy is that the incidence and degree of criminal liability should respect the
choices made by the individual. The principle of mens rea expresses this by stating that
defendants should be held criminally liable only for events or consequences which they
intended or knowingly risked. Only if they were aware (or, as it is often expressed,
subjectively aware) of the possible consequences of their conduct should they be
liable. The principle of mens rea may also be stated so as to include the belief principle,
since in some crimes it is not (or not only) the causing of consequences that is criminal
but behaving in a certain way with knowledge of certain facts."

Challenges to the approach

Character theory
D is responsible for his or her character. If Ds actions show character traits that are
opposed by the criminal law he or she should be punished, e.g. showing lack of care.
Blameworthy states of mind
Different offences have different mental elements
Intention or recklessness as to specified consequence;
Knowledge of or recklessness as to specified circumstance.

Intention
Sometimes intent is the essence of an offence (e.g. for attempts)

Sometimes intent is the main way the law grades offences (e.g. difference between
murder and manslaughter)
No statutory definition of intention

Intention is question of fact for the jury


Intention is NOT motive or desire.
Intention is the most serious offence in mens rea as murder, GBH etc all require intention to
cause the harm.
Meaning of intention
Direct intention Ds aim, objective, purpose.
Oblique (indirect) intention
Oblique intention
Is the concept of intention more extensive than direct intention (aim, object, purpose)?

Lack of clarity/confusion in the cases.


R v Hyam [1975]
Lord Bridge in R v Moloney [1985] AC 905:
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.

R v Hancock and Shankland [1986]


Moloney guidelines as they stand are unsafe & misleading.
Dislike natural consequence approach.
Lord Scarmen in R v Hancock and Shankland [1986] AC 455:
In my judgment, therefore, the Moloney guidelines as they stand are unsafe
and misleading. They require a reference to probability. They also require an
explanation that the greater the probability of a consequence the more likely
it is that the consequence was foreseen and that if the consequence was
foreseen the greater the probability is that the consequence was also
intended.

Lord Lane in R v Nedrick [1986] 1 WLR 1025:


It may be advisable first of all to explain to the jury that a man may intend to
achieve a certain result whilst at the same time not desiring it to come
aboutWhen determining whether the defendant had the necessary intent, it
may therefore be helpful for a jury to ask themselves two questions. (1) How

probable was the consequence which resulted from the defendants voluntary
act? (2) Did he foresee that consequence? If he did not appreciate that death
or serious harm was likely to result from his act, he cannot have intended to
bring it about. If he did, but thought that the risk to which he was exposing the
person killed was only slight, then it may be easy for the jury to conclude that
he did not intend to bring about that result. On the other hand, if the jury are
satisfied that at the material time the defendant recognised that death or
serious harm would be virtually certain (barring some unforeseen
intervention) to result from his voluntary act, then that is a fact from which
they may find it easy to infer that he intended to kill or do serious bodily
harm, even though he may not have had any desire to achieve that result.
[italics added]
Is this a stricter test than Moloney or Hancock?

R v Woollin [1998] 4 All ER 103


Lord Steyn in R v Woollin [1998] 4 All ER 103 (repeating Lord Lanes model direction in
R v Nedrick):
(B) Where the charge is murder and in the rare cases where the simple
direction is not enough, the jury should be directed that they are 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 appreciated that
such was the case.
(C) 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 upon a consideration
of all the evidence.

Approves Nedrick direction


Substitutes jury should be directed that they are not entitled to infer the necessary
intention with jury should be directed that they are not entitled to find the
necessary intention

A jury is not entitled to find intention unless they are sure that:
Death or serious harm is a virtual certainty as a result of Ds acts; and
The D appreciated that was the case.

Is there any difference between jury entitled to infer and to find intention?
What is the state of the law on intention since R v Woollin?
Judgment open to 2 interpretations
Definitional interpretation

Evidential interpretation
Ashworth in Principles of Criminal Law 5th ed (2006, 178):
Where Nedrick states that if D foresaw the relevant consequence as virtually
certain the court is entitled to infer intention, Woollin states that the court is
entitled to find intention. This change has little practical significance, and it
leaves open the possibility that, if courts are entitled but not required to find
intention in these cases, then there may occasionally be cases where they
may lawfully decide not to find intention despite foresight of virtual certainty.
Ashworth in Principles of Criminal Law 5th ed (2006, 180) argues:
we have seen that the House of Lords left the door ajar: the phrase
entitled to find preserves an element of moral elbow-room which many
judges and some others believe essential if courts are to label defendants in
socially sensitive ways, especially in difficult cases.

Re A (conjoined twins: surgical separation) [2000] 4 All ER 961


R v Matthews and Alleyne [2003] 2 Cr App R 30

Does approach to intention in Woollin apply to all offences of intent or just murder?
Intention is a subjective test.
Section 8 of the Criminal Justice Act 1967:
A court or jury, in determining whether a person has committed an offence (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.
Mens Rea: Blame and Responsibility
Examples of mens rea include; dishonesty, belief, knowledge, intention,
maliciousness and recklessness. Mens rea helps define the difference
between murder and manslaughter, for example.
Intention is the most serious offence in mens rea as murder GBH etc all
require intention to cause the harm.
Actus non fit reus nisi mens sit rea = Act isnt guilty unless the mind in guilty.
Regulatory offences strict liability - are those where you can be found guilty
without the prosecution having to prove the guilty mind. You can be
prosecuted on your conduct alone. Eg, parking fines are strict liability as it
does not matter if you have the intention/recklessness or not. The majority of
crimes are strict liability.

Subjective approach
To see if somebody intended to kill somebody or whether they did it
recklessly. To look at it from the viewpoint of the defendant them self. Judge
recklessness from a subjective viewpoint. Did they know there was a risk?
Did they foresee the consequence of murder? understand it from the
defendants point of view.

Objective approach
The reasonable persons test. The objective assessment is about asking what
the reasonable person would have seen/intended/planned not what the
defendant would have.
Every offence will have its own mens rea.

Capacity/choice theory
One has to have the capacity to understand what they are doing and have to
be in control of their actions. Everybody has the capacity to choose between
right and wrong. In order to be liable under criminal law, you have to be
aware of the nature of your actions, know the relevant circumstances and be
aware of the possible circumstances.

Intention
The mens rea required for murder is intention to kill or intention to kill
grievous bodily harm. Sometimes the intention is the essence of the offence attempt liability. For attempted murder you have to have the intention to kill.
Sometimes intention is the way to grade the seriousness of the crime. The
legislation called offences against the person 1861 there are 2 different
forms of assault, section 18 and 20 which both deal with the actus reus
wounding or GBH, what differs them is the mens rea. For section 18, you
need to have had the intention to cause unlawful wounding or GBH. For
section 20, you could just be reckless.
There is not statutory definition of intention; it has been up to the courts to
decide. Intention is a question of fact for the jury. A legal definition for
intention is different from motive.
Direct intention - Intention in criminal law is direct intention that it is the
aim, the object, the purpose, the plan, to calculate and meditate.
Indirect/Oblique intention - Can intention be when you foresee a result
happening? Where youre looking at circumstance when there hasnt been a
pre meditated plan. Has the criminal foreseen the consequences to a virtual
certainty?
R v Hyam [1975]

Mrs. Hyam had been having an affair with somebody who left her and started
having an affair with someone else. She was not pleased so she poured
petrol through the letterbox of her rival. There were people inside the house
sleeping and she ignites the petrol. Consequently someone in the house dies.
She is convicted for murder, and she appeals that she didnt have the state
of mind for intention, she had not intended to kill anybody through her
actions, she hadnt even intended to cause anyone harm, she was just being
reckless. HL dismissed her appeal because her foresight of the death was
highly probable and that was all she had to see.
This shows your foresight does not have to be to a critical extent, just to a
highly probably extent.
R v Moloney [1985]
There was a father and his stepson and they had both been drinking heavily.
The father had guns in the household. In their drunken game they failed to
see that the safety hatch isnt on and the son ends up shooting the father
dead. He is on trial for murder; the jury says that son should see that that
result was highly probable. HL allowed his appeal and quash his conviction
for murder and substitute a manslaughter conviction. The overturned the
Hyam conviction, and said that if you left it at being highly probable, many
people would be on trial for murder. You have to foresee the consequence as
a natural consequence.
R v Hancock and Shankland [1986]
These were 2 guys who were miners and during the strike they were trying to
stop their colleagues from going to work so they stand on a motorway bridge
and throw boulders onto the road, one falls on a taxi which kills the driver.
They are convicted for murder, they appeal to CA. They argued that it wasnt
their plan to kill anybody; court agreed that there was no direct intention,
was there oblique intention? The CA allowed the minors appeal, and quashed
the conviction for murder and substituted manslaughter. The Crown appeals
the case to the HL, they dismiss the crowns appeal and uphold manslaughter
conviction.
R v Nedrick [1986]
Very important case as this is the case where they start talking about virtual
certainty.
The defendant, Nedrick has a grudge against the victim and pours lighter
fuel in the letterbox of this persons house and sets it alight and the house
burns down and the victim dies as a result. At trial Nedrick is convicted of
murder, but the jury felt that Nedrick should have seen that as a result of his
actions, death was highly probable. This is a CA case; Nedrick appeals and
CA quash murder and substitute manslaughter. Judge comes up with virtual
certainty and gets rid of probability. If the defendant foresees the

consequence to be virtually certain, then that could be enough for the


defendant to be inferred of intention.
R v Woollin [1998]
The father lost his temper with his 3 month old son, he threw his son against
a wall, which fractured his skull and the baby dies. He is charged with
murder, at trial the judge explained to the jury that you should convict
woollin if he foresaw the consequences and can then infer intention. He also
says, it not just about foresight of virtual certainty that is important but you
can also convict him if you say he appreciated there was a substantial risk
that through his actions the baby would die or be seriously harmed. He was
convicted for murder, he appealed, CA dismissed it, appeals again to the HL,
the HL say that the trial judge had been wrong to depart from the virtual
certainty and so allow his appeal because the judge had blurred the
distinction between murder and manslaughter. Quashed murder conviction
and upheld manslaughter. As nedrick was only a CA case, it could be used by
jurys, so in this case of Woollin, Lord Steyn copies the judgment from Nedrick
to this case so as to approve of it in HL except changes the word infer to
find.
There is a 2 part test that comes from the Woollin case.
-

Was the death or serious harm virtually certain as a result of the defendants
actions?

Are the jury sure that the defendant appreciated that the consequences
were virtually certain?
This judgement is now open to 2 interpretations;

Definitional interpretation
When Steyn changed the word, it actually made a difference. If you find
intention, then it amounts to intention itself. Under this definition they have
no choice but to find someone liable if there in intention. The change takes
away the jury discretion, if they can find virtual certainty it amounts to
intention.

Evidential interpretation
This approach is for people who say that the change has not made much of a
difference, this definition puts weight on the word entitled the jury are
entitled (but not required) to find the intention and therefore leaves the
discretion that even if there is virtual certainty, they can find intention or not.
Re A (conjoined twins: surgical serparation) [2000]

Conjoined twins where the hospital and the doctors wanted to find out from
criminal law if they separated the twins, would it amount to murder because
it would be certain that the weaker twin would die as a result. The doctors
would not be guilty of murder if they separated the twins. A couple of the
judges followed a definitional approach to Woollin, where they said that if it
was a virtually certainty that the operation would result in the death of one
of the twins, then there is an intention to kill. One of the judges said post
woollin you can look at intention from an evidential approach, foresight of
virtual certainty means that you can find intention but you are equally
entitled not to find intention and in this case they didnt find intention. This
was however CA and we are waiting for a HL case.
R v Matthews and Alleyne [2003]
The defendants had deliberately thrown a person that they knew couldnt
swim into the river and he dies as a result. They are convicted to murder and
the appeal, but the CA dismisses this and upheld murder.

25th January 2008

Recklessness
This used to be an area of law that was fairly convoluted but now it has been
simplified after R V G.
Recklessness is the taking of an unjustified risk, it is an interesting form of
mens rea, taking a substantial unreasonable risk. There are two ways in
which the courts have looked at this;
-

Subjective recklessness; was the defendant aware of the risk? And then
made a conscious decision to take that risk. Also called advertant
recklessness.

Objective recklessness; inadvertent recklessness. Not concerned of what the


defendant saw or took the risk but would the ordinary reasonable person
have seen that risk and taken it.
Courts have normally always looked at recklessness subjectively but now
have moved towards the other too. These are subjective cases:
R v Cunningham [1957] (very authoritative case)
Cunningham was a squatter and he went into an unoccupied house where he
was staying which had a coin operated gas meter. He tried to get the money
out of it and the gas started leaking out and made a neighbour was really ill.
He was charged with maliciously administrating obnoxious substance. The
judge said malicious meant wickedness, at trail he was convicted of this

offence and went on to appeal to CA that this terminology was old fashioned.
CA said the malicious meant you could mean intentionally or recklessly. So
quashed the decision?
R v Stephenson [1979]
Was a tramp and he suffers from schizophrenia. He finds himself in the
countryside and finds refuge in someones barn. He has a lighter on him and
starts a fire to warm and the barn ends up burning down. At trial he is
convicted of arson because the trial judge told the jury you have to convict
him if he closed his mind to an obvious risk. He appeals his conviction and
goes to the CA, they allow this and quash his conviction and they so do
because the trial judge misdirected the jury because he applied an objective
approach to recklessness.
Objective recklessness cases;
R v Caldwell [1982]
Caldwell had done some work fo a hotel owner and he goes and had some
drink at the hotel and gets in a fight with him. Caldwell gets into a temper
and sets fire to the hotel as revenge. Caldwell is convicted with
arson/criminal damage pleaded guilty. The second charge he is convicted
with is recklessly/intentionally endangering life and he disputed this charge.
At his trial he is convicted of the second charge. The trail judge said
drunkenness is not an excuse. HL looked at 2 things, intoxication,...crown
appealed... this was seen as a basic intent offence so his drunkenness could
not be used as a defence, court said because it is a basic intent offence, if
you get so drunk you have no idea what you are doing then you are acting in
a reckless manner.
Specific intent eg. Murder, because only intention suffices. A crime of
specific intent, the only form of mens rea that is required in intention. For
crimes of specific intent, drunkenness can work as a defence.
Basic intent all other offences, which can be committed recklessly by any
other mens rea except intention. Drunkenness is never going to be a defence
for a basic intent crime.
Elliot v C [1983]
There was a girl who was lower levels of intelligence, maturity for a 14 year
old. She fought with her parents, and she sets fire to the next door
neighbours shed. She said she didnt realise the consequences of what
would happen. She was convicted at trial because of caldwells approach to
recklessness. The court reaffirmed that when you are looking at criminal
damage, you take an objective approach. For the next 20 years, court always
looked at recklessness is an objective approach

Caldwells approach can be seen as quite harsh and over inclusive. Subjective
recklessness could be criticised as being under inclusive.
R v G [2003]
The case involved criminal damage. 2 boys, 11 and 12 years who set fire to
newspapers in a wheelie bin near a supermarket and it catches fire to the
building and the supermarket suffer losses of over 1 million. They are
convicted of arson/criminal damage, they appeal on the fact that they didnt
understand the full consequences of the risk they were taking. Appeal is
dismissed because they took the Caldwell approach. HL decided to quash the
boys conviction to arson and allow their appeal, and reinstate a subjective
view for recklessness.
They wanted to bring the subjective approach back because the objective
approach leads to unfair decisions. Conviction for serious crime should
depend on proof of culpable state of mind of the defendant.
In order to be liable for an offence, you have to have the mens rea for the offence, the atus reus
and mens rea have to coincide. However, there are some instances where mens rea and mens rea
do not coincide, 2;
Continuing offence; the Fagan case shows that the conduct (vehicle on the foot) did not require
the mens rea, but when he did not remove the vehicle, he developed the mens rea. This shows the
mens rea coming after the actus reus and is an example of a continuing offence.
One transaction approach; the difference to the above is that this approach the mens rea comes
first and then the conduct or actus reus comes after.
Thabo Meli v R
thabo Meli and the other appellnanstahd a pre conceived a plan to kil someone they had a
disagreement with. The idea was that they were going to take the victim to a hut in the woods
and strike him over the head and kill them. They do this and knock him unconscious, at this point
they have the intention to kill him. They think the guy has died, so to dispose of his body they
throw him over the cliff and then he later dies of exposure. They argued that they didnt have the
mens rea to kill when the guy actually died, only before, this appeal was dismissed and murder
was upheld.
The judge said that even if the actus reus and mens rea do not coincide, it will be seen as a one
transaction. It does not have to be a pre conceived plan;
R v Church
The defenadant does not have a pre meditated plan. Church attacks a woman (spur of the
moment) he assaults her and strikes her, and then he panics because he thinks he has killed her
although she is only unconscious. He disposes in the river and she dies of drowning. He is
convicted of murder, he appealed on the grounds that the only time he had the intention was
when he attacked her not when he died. This is seen as the one transaction approach.