MENS REA

The prosecution must prove that the defendant committed the actus reus while in a certain
state of mind, the mens rea (guilty state of mind or malice afore thought) required before a
person can be convicted of a crime.

Under section 203 of the Penal code murder is defined as; any person with malice afore
thought causes the death of another person by unlawful act or omission is guilty of murder.

There are different states of mind which separately /together constitute the necessary mens
rea for a criminal offence .This is intention, recklessness and negligence.

Sometimes the definition of a criminal may make it clear which of the three mental states is
appropriate but in other times the court decision will explain the requirements of the decision
quit precisely;

Intention

i) Direct intention

It refers to the typical situation where the consequences of a person’s action are desired.

ii) Oblique intense

It is also known as foresight intense

It covers the situation where the consequence is foreseen while the defendant has virtually
intended although it is not for his own sake but the defendant goes ahead with his action

E.g. an airplane owner decides to make a fraudulent insurance claiming one of his planes;

 he plants a bomb in it knowing that when it explodes some passengers will die
but he does not mind because he wants to make his claim. The consequence of
his actions is that the death of the passengers is desired

 alternatively he knows that some passengers will certainly die although he can
say honestly he does not want them to die and he will be delighted if they all
survive .This is oblique intension that is the consequences (the death of the
passengers) were not what he planned but he never the less knew that they
would inevitably follow up from his intentions in blowing up the plane.

See Republic v Moloney (1985), for the prosecution to prove that it was the defendant’s
purpose to bring about a particular consequence may involve placing a very heavy evidential

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burden on them. Criminal law normally or usually only requires proof of oblique intense as
opposed to direct intense.

 Intention based on foresight of consequences

Courts have stated that foresight of consequences can only be evidenced on intention if the
accused knew that these consequences would definitely happen. It is not sufficient that the
defendant merely foresaw the possibility of a particular occurrence.

DPP v Smith (1961), is an authority of the view that a person foresaw and intended the natural
and probable consequences of his acts

Where foresight needs to be established a person is not to be taken as intending the natural
and probable consequences of his act merely because they were natural and probable .The test
is therefore subjective and a jury has to decide what the defendants intension was by
considering all the evidence.

The relationship between foresight and intension was considered in the case of

Hyam v DPP (1975) ,the defendant in order to frighten Mrs. X put a burning newspaper
through the letter box of X’s house and caused the death of two of her children. She claimed
that she had not meant to kill but had foreseen death or grievous body harm as a highly
probable result of her actions. The House of Lords by 2/3 majority held that foresight on the
part of the defendant, that her actions were likely or highly likely to cause death or grievous
bodily harm and were sufficient mens rea.

It is important to note that foresight of consequences is not the same as intention but only
evidence of intention.

Republic v Scalley

In light of the above decisions the leading authority i.e. Smith and Morgan have stated as
follows;

 A consequence is intended when it is the accused purpose

 A court may infer that a consequence is intended though is not desired when
1. The consequence is virtually a certain result of the act
2. The accused knows that it is virtually certain consequences.

RECKLESSNESS

Taking of an unjustified risk .Two different tests have been developed by the courts as a result
of which the term recklessness now has two legal meanings which apply to different offences.

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 1. Subjective recklessness(canningham)

The first test for recklessness is subjective that is the defendant knows the risk; he is willing to
take it and takes it deliberately. The question which arises therefore is was the risk in the
defendants mind at the time when the crime was committed. This test was established in the
case of Republic v Canningham (1957)2 QB,PG 396 ,the defendant had broken a gas meter to
steal the money in it with the result that gas escaped into the next door house. The victim
became ill and her life was endangered. The defendant was charged with maliciously
administering a poisonous thing to endanger life. The court of appeal allowing the defendant’s
appeal held that for the defendant to have acted maliciously they had to prove that he had
intended to do harm or he had been reckless whether such harm would be caused

In this context recklessness involved the defendant being aware of the risk that his actions may
cause prohibited consequences.

2. Objective recklessness (Caldwell)

The second test for recklessness is objective that is the risk must be obvious to the reasonable
man in that the reasonable man would have realized it if he had thought of it /about it. A
person is reckless when in the wider sense he performs an act which creates an obvious risk
and when performing the act he has neither given thoughts of possibility of such a risk arising
nor has he recognized that some risk existed but he went ahead to take it. This test was
established in the case of MPC v Caldwell, the defendant who had been sacked from his
employment at a hotel become drunk and returned at night to the hotel which he set fire.
There were ten people resident in the hotel at the time but the fire was discovered and
extinguished before any serious harm could be caused ,the defendant pleaded guilty to the
criminal damage but pleaded not guilty to criminal damage with more serious intent to
endanger life on recklessness. He argued that due to his drunken state it had never crossed his
mind that lives might be endangered by his actions. He stated that he had simply set the fire on
the hotel because of his grudge with his former employer. The house of lords reaffirmed
Canningham as a form of recklessness in criminal law but introduced an alternative form of
recklessness based upon the defendants failure to acknowledge a risk which could have been
obvious to a reasonable person .Lord Diplock held that the defendant was reckless as to
whether the damaged property if he created a risk of damage which could have been obvious
to a reasonable man and either;

 Had not given thought to the possibility of such a risk when he carried it out
 Had recognized that there was some risk involved but none the less he
proceeded to carry out the acts.

The Caldwell Loophole

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There may be instances where a defendant considered whether there was a risk of harm and
decided that there was none, such a person is not reckless within the precise wording of Lord
Diplock in Caldwell’s case because he has given considerable thought to the risk but has come
to the wrong conclusion as to its significance, this situation is referred to as the loophole in
Caldwell’s principle or lacuna.

A resent attempt intensed a Lacuna’s attempt

Republic v Meriac (1996), a situation now exists w here there are two distinct causes of criminal
law

 it is unjust to have two meanings of recklessness

 the C Caldwell test does not make a distinction between a person who knowingly takes
a risk and a person and the person who gives no thought to whether there is a risk or
not.
 Since Caldwell there is an overlap between negligence and gross negligence.
NEGLIGLIGENCE

It consists of falling below the standard of the ordinary reasonable person .The test is usually
objective and it is based on the hypothetical person ,it involves the defendant either doing
something the reasonable person will not do or not doing something which the reasonable
person would do

It does not matter that the defendant was unaware that something dangerous might happen if
the reasonable person would have realized the risks and taken steps to avoid it.