3.

MENS REA (Criminal Law)

INTRODUCTION TO MENS REA

BASIC INTRODUCTION
⇒ This is the mental element of a crime. Different crimes have different mens rea.

⇒ The standard common law test of criminal liability is expressed in the Latin phrase actus reus
non facit reum nisi mens sit rea, i.e. "the act is not culpable unless the mind is guilty"

⇒ As a general rule, someone who acted without mental fault is not liable in criminal law.
Exceptions are known as strict liability crimes.

⇒ There are different kinds of mens rea, including intention, recklessness, negligence, and
knowledge. However, it should be noted that these are not the only kinds of mens rea e.g.
dishonesty is the mens rea of certain offences.

⇒ As a general rule, intention is seen as the worst kind of mens rea, recklessness the second
worst, and negligence the least serious.

CRIMINAL INTENTION
INTRODUCTION
⇒ Intention requires the highest degree of fault of all the levels of mens rea. A person who
intends to commit a crime, can generally be said to be more culpable than one who acts
recklessly e.g. if you intentionally kill someone, that would be generally worse than killing
someone recklessly or negligently.

WHAT DOES INTENTION MEAN?

⇒ The general rule is that intention should be given its ordinary meaning.

⇒ In R v Hales [2005] the Court of Appeal said that only in rare cases will the judge need to give
further directions to the jury on intention.

⇒ The ordinary meaning of intention: it is widely accepted that the defendant intends a

consequence of his action if he acts with the aim or purpose of producing that
consequence.

⇒ The jury must be persuaded beyond reasonable doubt that the defendant intended the
result.

1
3. MENS REA (Criminal Law)

DISTINGUISHING INTENTION AND FORESIGHT

⇒ It has been stated by the court that foresight of a consequence is not the same as intention.
However, foresight of a consequence may be used as evidence of intention e.g. If you throw a
cricket ball over a crowd of people you may foresee it hitting someone, even if that is not your
intention. The degree of likelihood is evidence from which a jury may infer that a defendant
intended a result.

⇒ Lord Scarman, for instance, said in Hancock and Shankland [1986] that “the greater the
probability of a consequence the more likely it is that the consequence was foreseen and... if that
consequence was foreseen the greater the probability is that the consequence was also
intended”.

BORDERLINE CASES OF INTENTION

⇒ Usually the ordinary meaning of intention is enough for the jury to decide whether the
defendant intended his/her actions. Only in rare cases will the jury require further direction
to decide whether the defendant intended his/her actions.

⇒ An often quoted example of a borderline case of intention goes as follows: if the defendant
plants a bomb on a plane intending to destroy the goods on board, he does not want the pilot to
die but that will inevitably happen. In such a case, the judge will have to give further direction to
the jury about the meaning of intention.

 R v Woollin is the latest and leading case - in a long line of cases - dealing with the

correct direction the judge should provide to the jury in borderline cases of intention →

see the case here.

CRIMINAL RECKLESSNESS
INTRODUCTION TO RECKLESSNESS
⇒ In general terms, being reckless refers to the taking of an unjustified risk.

⇒ There has been difficulty in determining what recklessness meant → at one stage there were
two definitions of recklessness, known as Cunningham recklessness and Caldwell recklessness.
However, the House of Lords has abolished Caldwell recklessness and so there is now only
one kind of recklessness used.

2
3. MENS REA (Criminal Law)

CUNNINGHAM RECKLESSNESS
⇒ There are two elements that need to be shown for Cunningham recklessness:

1. The defendant was aware that there was a risk that his or her conduct would cause a
particular result.
2. The risk was an unreasonable one for the defendant to take.
⇒ In other words, Cunningham recklessness (or subjective recklessness, as it is sometimes
known), will arise if the accused consciously takes an unjustified risk.

⇒ The first element only requires that the accused foresaw that there was a risk; it does not have
to be foreseen as highly likely to occur. Furthermore, the question is whether
the accused foresaw the risk, not whether the risk was obvious or would have been foreseen by
a reasonable person (see, for example, R v Stephenson).

⇒ The second element is fairly straightforward as it is unlikely for there to exist a situation where
it would be reasonable for the defendant to take a risk that a person will be injured.

CALDWELL RECKLESSNESS
⇒ NOTE: Caldwell recklessness is now abolished. However, it should be discussed for
academic purposes...

⇒ The case of Caldwell changed the definition of recklessness: whereas

in Cunningham recklessness was proved subjectively, in Caldwell recklessness was proved
objectively.

⇒ In other words, in Caldwell recklessness, if there was an obvious risk of harm resulting from
the defendant’s actions, regardless of whether the defendant had foreseen the harm, he/she
would be acting recklessly. Thus, Caldwell recklessness differed
from Cunningham recklessness because it included defendants who were not aware of an
obvious risk.

⇒ Caldwell recklessness fell into disrepute because it punished defendants for failing to notice a
risk which would have been obvious to a reasonable person. See, for example, Elliott v C.

R V G AND R [2006] UKHL 50

⇒ Until this case, subjective (Cunningham) and objective (Caldwell) recklessness operated
side by side. The House of Lords decided, in this case, that Caldwell recklessness had to go.
See the case facts, R v G and R.

⇒ In Attorney-General’s Reference (No 3 of 2003) the Court of Appeal confirmed R v G and

R and abolished Caldwell recklessness not just for criminal damage, but for all crimes which had
used Caldwell recklessness. Thus, R v G and R now applies to all cases of criminal damage
and Cunningham applies to all other offences involving recklessness.

3
3. MENS REA (Criminal Law)

CRIMINAL NEGLIGENCE AND GROSS

NEGLIGENCE
NEGLIGENCE
⇒ Sometimes the mens rea of a crime is negligence. However, it should be noted
that negligence plays a minor role in criminal liability: it used to form the basis of some
driving offences but this has largely been superseded by recklessness.

⇒ Negligence uses an objective test: 'did the defendant behave in a way which was
reasonable in the circumstances?' If the defendant behaves in the way in which a reasonable
person would not then he/she is negligent.

 The objective test is strictly applied (McCrone v. Riding [1938] 1 All ER 137).

GROSS NEGLIGENCE
⇒ The main role for negligence in criminal law is with regards to gross negligence
manslaughter.

⇒ Gross negligence essentially means really bad negligence. It must be shown that the
defendant killed negligently and that this negligence was so bad as to justify a criminal
conviction. See, for example, the case of R v Adomako [1994] 3 WLR 288.

⇒ You can also see the topic notes on Gross Negligence Manslaughter here.

INTOXICATION

INTRODUCTION TO INTOXICATION
⇒ Intoxication can be relevant in a criminal case in three ways:

 1) The defendant may for some crimes seek to rely on his intoxication as evidence he

lacked mens rea.

 2) The prosecution may in some crimes seek to rely on the defendant’s intoxication to

establish the defendant’s mens rea.

4
3. MENS REA (Criminal Law)

 3) There are certain crimes that specifically refer to being intoxicated. For example, it is

an offence to drive a vehicle while under the influence of drink or drugs (Road Traffic

Act 1988, s4(2)).

VOLUNTARY AND INVOLUNTARY INTOXICATION

⇒ Voluntary intoxication is self-induced intoxication. Involuntary intoxication is
intoxication caused by by someone or something else (e.g. where your drink is spiked).

⇒ Alcohol and illegal drugs:

 Where someone voluntarily takes alcohol or illegal drugs - even if that person thinks the

alcohol/drugs will have little effect on them - they are said to be voluntarily intoxicated.

See, for example, the case of R v Allen [1988].

 If the defendant thought he was drinking a non alcoholic drink but it had been spiked

then that would be involuntarily intoxication.

 Where someone is addicted to drugs/alcohol they are said to be voluntarily intoxicated.

⇒ Legal Substances:

 The defendant is voluntarily intoxicated if he/she is aware of the effects of taking the

legal substance.

 The defendant is voluntarily intoxicated if prescribed medicine is not taken how it should

be. See the case of R v Hardie [1985].

BASIC AND SPECIFIC INTENT

⇒ Where the defendant has voluntarily put themselves in the position of being intoxicated to the
extent that they are not capable of forming the mental element of the crime the law is less
forgiving. The law draws a distinction between crimes of basic intent and crimes of specific
intent.

⇒ The House of Lords case of DPP v Majewski [1977] highlighted that there was a distinction to
be made between basic and specific intent, but failed to clarify the specific parameters of both
and their exact meaning. However, they are widely believed to mean the following:

 Specific intent: offences of specific intent are those which have intention as their mens

rea. For example, murder.

5
3. MENS REA (Criminal Law)

 Basic intent: crimes of basic intent are those for which the mens rea element can be

satisfied by recklessness. For example, assault.

⇒ Great uncertainty surrounds crime which contain elements of intent and elements of
recklessness. For example, rape, where the mens rea is an intent to engage in sexual
intercourse with negligence as to whether the victim consented. See the case of R v Heard
[2007].

THE LAW
⇒ If the defendant has mens rea, whether voluntarily or involuntarily intoxicated, he/she is guilty
of the offence: "a drunken intent is nevertheless still an intent"

⇒ If the defendant is involuntarily intoxicated and has NO mens rea then he/she should
be acquitted i.e. it is a complete defence

⇒ If the defendant is voluntarily intoxicated and has NO mens rea then he/she will be seen to
have acted recklessly (and, therefore, will be guilty of basic intent crimes), but will be acquitted of
any offence needing intention (i.e. specific intent crimes, such as murder. Nevertheless, the
defendant in such a case will be charged with the lesser offence of murder).

 Thus, voluntary intoxication is a partial defence.

CRIMINAL KNOWLEDGE AND BELIEF

SUMMARY OF CRIMINAL KNOWLEDGE AND BELIEF
⇒ For some offences it must be shown that the defendant did an act knowing or believing
that a certain state of affairs existed.

⇒ It should be noted that in cases where the mens rea is knowledge, careful consideration
should be given to which aspects of the actus reus need to be known.

 For example, the offence of handling stolen goods requires proof that the defendant

knew or believed that the goods were stolen.

⇒ The difference between knowledge and belief appears simply to be based on whether the
facts known or believed turned to to be true: if they were true then the defendant knew them to
be true, if they were false the defendant believed them to be true.

6
3. MENS REA (Criminal Law)

TRANSFERRED MENS REA

TRANSFERRED MENS REA SUMMARY
⇒ The doctrine of transferred mens rea (or 'transferred malice' as it is sometimes
known) applies where the mens rea of one offence can be transferred to another.

 For example, suppose A shoots at B intending to kill B, but misses and hits and kills C.

Transferred malice can operate so that the mens rea of A (i.e. intention to kill B) can be

transferred to the killing of C. Consequently A is liable for the murder of C, despite the

fact that he did not actually intend to kill C.

⇒ See, for example, the case of R v Latimer (1886).

⇒ Transferred malice does not operate where the crime which occurred was different from
that intended. See, for example, R v Pembliton (1874).

COINCIDENCE OF ACTUS REUS AND MENS

REA
SUMMARY
⇒ It is a principle of English law that the actus reus and mens rea must coincide. That is they
must happen at the same time. This is sometimes referred to as the contemporaneity rule or the
coincidence of actus reus and mens rea.

⇒ However, the courts often apply a flexible approach in holding that the actus reus is a
continuing act. See, for example, the case of Thabo-Meli v R [1954].

⇒ Also see the case of Fagan v Metropolitan Police Commissioner [1969] where the
defendant had committed the actus reus of an offence (without mens rea), but at a later point
developed the mens rea.

7
3. MENS REA (Criminal Law)

CASES

MENS REA GENERAL CASES

R V ALLEN [1988] CRIM LR 698
Facts: The appellant consumed some home made wine. This had a much greater effect on him
than anticipated. He committed sexual assaults and claimed he was so drunk he did not know
what he was doing. He argued that he had not voluntarily placed himself in that condition as the
wine was much stronger than he realised.

Held: The intoxication was still voluntary even though he had not realised the strength of it. The
crime of sexual assault is one of basic intent and therefore the appellant was unable to rely on
his intoxicated state to negative the mens rea.

R V CALDWELL [1982] AC 341

Facts: The defendant (D) bore a grudge against his employer. One night, he set fire to the
residential hotel where he had been employed. According to his evidence he was so drunk at the
time that it did not occur to him that there might be people there whose lives might be
endangered.

Held: For D to be guilty of criminal damage there need not be any subjective appreciation of the
risk (i.e. he does not need to foresee the risk of harm resulting from his actions). The risk need
only be obvious in the sense that it would have been obvious to the reasonable man (i.e. it need
only be objectively reckless).

⇒ Note: this test of recklessness no longer applies following the case of R v G and R.

CHIEF CONSTABLE OF AVON AND SOMERSET V SHINMEN

(1987) 84 CR APP R 7
Facts: The defendant was a martial arts expert who was demonstrating his skill to friends by
performing a move which he anticipated would bring his foot within inches of a shop window. He
had miscalculated the risk, and he broke the window.

Held: The argument that he was not reckless because he had given thought to the risk but
mistakenly believed that he had minimised it, was rejected by the Divisional Court because he
knew there was some risk. The defendant was found guilty of causing criminal damage.

R V CROSSMAN (1986) CRIM LR 406

Facts: The defendant (D) was the driver of a lorry. A piece of machinery weighing between three
and five tons was loaded onto the trailer of D's lorry. D had been advised to secure the machine
with chains, but did not. The machine fell off and killed a pedestrian.

8
3. MENS REA (Criminal Law)

Held: D was driving with the knowledge that by doing so he was putting other road users at risk
of serious injury or death. In the circumstances D was driving recklessly.

R V CUNNINGHAM [1982] AC 566

Facts: The defendant (D) repeatedly hit the victim with a chair in a pub. The victim died as a
result. The defendant did not intent to kill the victim.

Held: D was guilty of murder. The mens rea of murder can be satisfied either by an intent to
cause death or an intent to cause grievous bodily harm.

R V CUNNINGHAM [1957] 2 QB 396

Facts: The appellant ripped a gas meter from the wall in order to steal the money in the meter.
This caused gas to escape. The gas seeped through small cracks in the wall to the neighbouring
property where his future mother-in-law was sleeping and was poisoned by the gas. The
defendant (D) was charged under s23 of the Offences Against the Person Act 1861 with
"maliciously administering a noxious thing so as to endanger life". D appealed to the Court of
Appeal.

Held: The Court of Appeal, allowing D’s appeal, held that for a D to have acted "maliciously"
there had to be proof that he intended to cause the harm in question or had been reckless as to
whether such harm would be caused. In this context, recklessness involved the defendant in
being aware of the risk that his actions might cause the prohibited consequence. In other
words, recklessness was subjective.

DPP V MAJEWSKI [1977] AC 443

Facts: The appellant had taken a substantial quantity of drugs over a 48 hour period. He then
went to a pub and had a drink. He got into a fight with two others. The landlord went to break up
the fight and the appellant attacked him. When the police arrived, he assaulted the arresting
officer. Another officer was struck by the appellant when he was being driven to the police
station. The next morning he attacked a police inspector in his cell. He was charged with four
counts of occasioning actual bodily harm and three counts of assaulting a police constable in the
execution of his duty. The appellant claimed he had no recollection of the events due to his
intoxication. He was found guilty on all counts and appealed contending that he could not be
convicted when he lacked the mens rea of the offences due to his intoxicated state.

Held: Appeal dismissed. Conviction upheld. The crime was one of basic intent and therefore his
intoxication could not be relied on as a defence.

ELLIOTT V C [1983] 1 WLR 939

Facts: The defendant (D), an educationally subnormal 14-year-old schoolgirl, had entered a
neighbour's garden shed, poured white spirit on the floor and ignited it. D then fled as the shed
burst into flames.

Held: Caldwell recklessness (see case here) fell into disrepute because it punished defendants
for failing to notice a risk which would have been obvious to a reasonable person. Here, the test
was whether a reasonable person would have realised that the lighting of the spirit would create

9
3. MENS REA (Criminal Law)

a risk of damage to the shed, not whether the risk was obvious to D or obvious to a reasonable
person of D’s age and mental ability. As she had failed to consider the risk and it would have
been obvious to a reasonable person, she was guilty of criminal damage. This case was
heavily criticised and was an influencing factor in abolishing Caldwell recklessness in the case
of R v G and R.

R V G AND R [2003] UKHL 50

Facts: Two boys, aged 11 and 12, went camping without their parents approval. The boys found
some old newspapers outside the Co-op which they lit with a lighter and then threw them under a
wheelie bin. They then left without putting them out assuming they would naturally burn out. In
fact the burning newspapers set light to the wheelie bin and the fire spread to the Co-op shop
and caused over £1m of damage. They were originally convicted of criminal damage on the basis
that it would have been obvious to a reasonable person that what they were doing was posing a
risk to property.

Held: At the House of Lords, their convictions were quashed; as a result, the court
overturned R v Caldwell, which had established objective recklessness in cases of criminal
damage.

This case, then, confirms that fro criminal damage Caldwell recklessness should not be used and
instead a defendant will be reckless if he or she realised that there is a risk of the harm
arising and decides to take that risk, when to do so is unreasonable.

R V HARDIE [1985] 1 WLR 64

Facts: The defendant set light to a wardrobe after consuming some out of date valium tablets
which had been prescribed to his partner. He took the valium tablets as he was feeling stressed
as his partner had asked him to leave their home. The defendant was convicted of causing
criminal damage being reckless as to whether life would be endangered, following the trial
judge's direction to the jury that voluntary intoxication cannot be a defence to a basic
intent crime. The defendant appealed.

Held: The conviction was quashed on appeal on the grounds that he could not be expected to
anticipate that tranquillisers would have that effect upon him. He was told that the tablets would
calm his nerves and do him no harm: as he became intoxicated he was held to have been
involuntarily intoxicated.

R V HEARD [2007] EWCA CRIM 125

Facts: The police were called to the appellant’s house where he was heavily intoxicated and in a
depressive state and had been self harming. The police took him to hospital. He was making a
disturbance in the waiting room so the officers took him outside. The appellant then took out his
penis and started rubbing it against the officer's thigh. He was charged with sexual assault
contrary to S.3 of the Sexual Offences Act 2003. He did not dispute that the offence occurred but
claimed to have no recollection of the events due to his intoxication. The judge ruled that the
offence was one of basic intent and such his intoxication could not be relied on in his defence.
He was convicted and appealed on the grounds that the judge was in error in ruling that sexual
assault was a crime of basic intent since it requires an intention to touch.

10
3. MENS REA (Criminal Law)

Held: Appeal dismissed. The appellant's conviction was upheld. Parliament in passing the
Sexual Offences Act 2003 can not be taken to have changed the previous law which denied a
defendant from relying on voluntary intoxication as a defence.

See the full case here.

R V LATIMER (1886) 17 QBD 359

Facts: The defendant got into a fight in a pub with another man. He took off his belt and hit the
man with the belt. The belt ricocheted off and hit a woman in the face.

Held: The defendant was liable for the injuries inflicted on the woman despite the fact that he did
not intend to harm her. The mens rea he had to cause harm to the man was transferred to the
woman.

V PEMBLITON (1874) LR 2CCR 119

Facts: The defendant threw some stones into a crowd of people. He wanted to disperse the
crowd. A stone hit and smashed a window. He was convicted of criminal damage and appealed.

Held: CONTConviction quashed. His mens rea for an offence against the person could not be
transferred to a property offence as they are entirely different offences.ENT

R V STEPHENSON [1979] QB 695

Facts: The defendant was homeless and schizophrenic. He found refuge in a haystack where he
made a hollow and tried to go to sleep. He was cold so he lit a fire inside the hollow to keep
himself warm. Inevitably the whole haystack caught fire and he ran off and was picked up by the
police. The defendant contended that he never thought of the possibility of a the whole stack
catching fire. At his trial a consultant psychiatrist gave evidence that he had a long history of
schizophrenia and this would mean that the defendant was quite capable of lighting a fire in a
haystack without ever thinking of the danger involved.

Held: At first instance the defendant was convicted, but at the court of appeal the defendant's
conviction was quashed. The test should be entirely subjective; if the defendant did not foresee a
risk of damage he should not be liable.

THABO-MELI V R [1954] 1 WLR 228

Facts: The four appellants were convicted of murder. They had planned to kill a man and then
make it look like an accident. They took him to a hut and beat him over the head. Believing that
he was dead, they then took his body to a cliff and threw it off. Medical evidence showed that the
deceased died from exposure of being left at the bottom of the cliff and not from the blow to the
head. They appealed against their convictions on the grounds that the actus reus and mens rea
of the crime did not coincide. That is to say when they formed the intention to kill, there was no
actus reus as the man was still alive. When they threw him off the cliff, there was no mens rea as
they can intend to kill someone they believed was already dead.

Held: Convictions upheld. The act of beating him and throwing him off the cliff was one
continuing act.

11
3. MENS REA (Criminal Law)

R V WOOLIN [1999] AC 82
Facts: The defendant (D) threw his 3 month old baby son on to a hard surface. The baby
suffered a fractured skull and died. He stated he had not intended to kill the child, nor did he think
his actions would actually kill the child. The trial judge directed the jury, applying R v Nedrick
[1986], that D could be said to have intended the death of the child if there was a “substantial
risk” the child would suffer serious harm. As a result, they convicted D of murder. D appealed
unsuccessfully to the Court of Appeal. He then appealed to the House of Lords.

Held: At the House of Lords, the murder conviction was substituted with a manslaughter
conviction. There was a material misdirection by the judge which expanded the mens rea of
murder and therefore the murder conviction was unsafe; in other words, requiring “substantial
risk” the child would suffer serious harm instead of “virtual certainty” blurred the line between
intention and recklessness, which would result in injustice (i.e. people being convicted of murder
too often, as it would make it too easy to prove someone intended the consequences of their
actions).

⇒ The House of Lords substantially agreed with the Nedrick guidelines with a minor modification.
The appropriate direction is: “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 defendant's
actions and that the defendant appreciated that such was the case. The decision is one for
the jury to be reached upon a consideration of all the evidence."

See the full case here.

12