Lecture 5 – Mens Rea/Fault Terms

 Intention - undertake an activity with purpose

 Recklessness - you foresee a risk in the activity you undertake but carry on anyway
 Negligence - you should have foreseen the risk, but you did not
 No fault/strict – at some stage you did act with intent. The mental element is earlier
than the actual offence.

Actus reus element

- Act element – act needs to be intentional
- Circumstance element – every offence has a circumstance element. In assault,
circumstance element is the lack of consent and the corresponding mens rea
element is knowledge.
- Result element (if there is one)

The fault element in a crime: some examples:

• Murder – killing a person with the intention to kill or cause serious injury
• Criminal damage – damaging another's property intentionally or recklessly
• Common Assault – applying force to the body of another intentionally or recklessly
• Handling – handling stolen goods, knowing or believing them to be stolen.
• Theft – appropriating someone’s property dishonestly intending never to return the
property.

The purpose of the fault element is linked to the concept of desert. Really important that we
punish those who show mens rea and can comply with the law. If we cannot see a risk, we
should not be punished.
 • “The State society needs a moral license to punish, and this presupposes that
those charged with offences have had the capacity and fair opportunity to
comply with the law.” HLA Hart

Intention
- E.g murder and manslaughter
- Hancock and Shankland – it was never the intention to kill someone (which is needed
for murder). All they wanted to do was keep people from breaking the picket line.
Question revolved around foreseeability.
- The appropriate direction should include a reference to the degree of probability and
in particular an explanation that the greater the probability of a consequence the
more likely it is that the consequence was foreseen and that if that consequence was
foreseen the greater the probability is that that consequence was also intended.
Chain of evidence involved. Not convicted of murder.

Knowledge or belief
- E.g Handling
- Reader – Reader and 2 others had stolen some jewellery and precious stones found
in their possession. Court couldn’t prove they had stolen them. Even if they could
prove the items were stolen, there Is no proof of knowledge that they are stolen.

Dishonesty
- E.g Theft
- Feely – Was the taking of the money dishonest. He had taken money out of the till of
his employer but left a note indicating he had taken money out of the till. Question
was whether that was dishonest. He was not convicted and it was held not to be
dishonest under the ordinary standard of dishonesty.

Objective/Subjective Fault

Subjective Mens Rea: What did the defendant think?

- Intention – D intended it
- Recklessness – D foresaw the risk and unreasonably went on to run it.

Objective Mens Rea: What we assume the defendant thought

- Negligence – D either foresaw the risk or should have done

No Mens Rea

K[2001] UKHL 41. – the moment you assault a minor, there is no way you can talk yourself
out of it.

Objective Fault
• is assessed by reference to the standards of ordinary people and does not
take into account the defendant’s own state of mind, ie whether he
intended/foresaw, knew etc
 • It involves negligence, carelessness etc.
• Eg Careless driving, gross negligence manslaughter

Examples of intention (in relation to circumstances or results)

Direct intention: where achieving it is D’s purpose – direct intent; where it is a means to an
end

Oblique intention: Where it is a virtual certainty and D has foreseen it as virtually certain
and the jury find intention

The defendant intends if:

- The circumstance/result is a virtual certainty; and
- D foresees it as virtual certainty; and
- The jury chooses to find intention
Woollin [1998] 4 All ER 103

It is a person’s intention that counts in the criminal law, not his/her motive
Compare R v Cox and R v Adams

Adams was a doctor who dealt with elderly ladies and took care of them, usually mentioned
in their will. He claimed to be giving them pain relief when they were terminally ill or in pain
and they would eventually fall asleep and die. Question was whether he murdered those
women. 2 intentions found: to kill a terminally ill patient (murder as euthanasia isn’t
allowed), other intention is to provide pain relief to make their situation more bearable. A
good and bad intention occurred – the good intention prevailed.

In Cox, he dealt with terminally ill patients, injecting them with potassium chloride to end
their painful life. He was convicted of murder.

What is it to intend a consequence?

• (1) A person intends a result if he or she acts in order to bring it about.

• (2) In cases where the judge believes that justice will not be done unless an
expanded understanding of intention is given, the jury should be directed as follows:
an intention to bring about a result may be found if it is shown that the defendant
thought that the result was a virtually certain consequence of his action.
• LC 304, Murder, Manslaughter and Infanticide 2006 para. 3.27.

1. Direct intention – if the defendant considers the intention a failure if the

consequence did not occur as a result of his action.
- The intention of desire, aim, purpose, objective

2. Indirect intention – if the defendant intended the result if it is shown that D thought
that the result was a virtually certain consequence of his action
- The intention of knowledge.
The type of intention requires foresight of (virtual certainty)
- Foresight of probability or high probability is not enough
- Hyam v DPP
- Moloney – overturned that foresight for a high probability is not enough, there needs
to be more than that.

 So a jury is entitled to find that A intended a consequence which his action brought
about if:
1. It was his objective/aim/desire
2. Although it was not his objective, it was
- For all intents and purposes inevitable
- A knew this
 Is foresight of certainty the same as intention or simply evidence of intention where
it is impossible to prove direct intention?
 Lynch says the former.
 R v MATTHEWS AND ALLEYNE [2003] EWCA Crim 192 (CA) said the latter

• Summary
1. In 99% of cases the jury should be asked simply ‘did A intend the consequence or
not?’
2. In 1% of cases, eg Woollin, they will need further guidance. They should be told that
they can still find the consequence intended, although it was not the purpose of A’s
action. if they think it was virtually certain to occur as a result of A’s action and A
knew this. Foresight to a lesser degree of probability than certainty is not enough.
This may be recklessness but not intention.
3. The jury are left with the final decision. They are entitled, not bound, to find a
consequence intended if it was foreseen as certain. 

a) 2 elements of actus reus

Act – shooting
Result – death
Causation – there is a chain of causation.

There is direct intention, as Adam wants to kill his wife. 2 nd intent is to alleviate pain.
We have a case of murder despite the fact that he has good intentions. He directly
fired and killed her so it is not an alleviation of pain.

b) Act – cutting the rope

Result – Eve has died
Causation – direct causation – had he not cut off the rope, she wouldn’t have died.
Intention – yes, virtually certain
2nd intention is him saving his life.
There is no direct act as she is not attacking him, so self-defence is tricky.
Opposed to Dudley and stevens – there is no choice here, either he dies or she dies.
 c) Act, result and causation are present
Mens rea – intention to kill? He wants to shoot her and intends to cause serious
injury, but he may not intend to kill her.
We had a total lack of virtual certainty, but we have intent, so it is a reverse
situation, but he wants to hit her. This will most likely be gross negligence.

• Recklessness: Foreseeing a risk (whether that is a small chance or one that is very
likely).
• Intention
- Purpose and means to an end are clearly different: not about risk at all.
- Foreseeing a virtual certainty is about foreseeing.

Recklessness has objective and subjective forms

1. Subjective form

• A person acts recklessly with respect to 

(i) a circumstance when he is aware of a risk that exists or will exist
(ii) a result when he is aware of a risk that will occur
(iii) and it is, in the circumstances known to him, unreasonable to take that risk. 
• Cl 1. Draft Criminal Law Bill

Conscious awareness of a risk of harm is necessary

- Cunningham [1957], Stepheson [1979]
- The court looked at that specific defendant and what the standard of recklessness is

Closing one’s mind to the risk

- Parker
- Cf Stephenson – Stephenson could not realise the risk as parker could

Objective form of recklessness

• For a time at the end of the last century recklessness took on an objective form.
• Prosecution did not need to show that the defendant was aware of the risk his
conduct posed so long as the risk was an obvious one.
• Caldwell: Model Direction. A person is reckless for the purpose of criminal damage if
he does an act which (1) in fact creates an obvious risk that property will be
destroyed or damaged and (2) when he does that act, he either has not given any
thought to the possibility of there being such risk or has recognised that there was
such risk involved and has nonetheless gone on to take it.
• The direction created problems for the young, mentally disabled, and inexperienced.
Elliot v C [1983] – she had a learning disability, but under the model direction she was
convicted as there was an obvious risk that property would be destroyed.
 • R v G (2003)
HL overruled Caldwell. The law is now as it appears in the Draft Criminal Law Bill.
NB A person is still reckless if he closes his mind to the obvious risk of harm.
Booth v CPS (2006), Parker

Negligence occurs where a person ‘fails to exercise such care, skill or foresight as a
reasonable man in his situation would exercise’.

D may be negligent therefore if he/she

(a) does not take care;
(b) is not sufficiently skilful;
(c) does not foresee an obvious risk attending his conduct.

Negligence v Recklessness:

• Recklessness is the conscious taking of an unjustifiable risk.

• Negligence is the inadvertent taking of an unjustifiable risk.
• If D is aware of the risk and decides to take it, he is reckless.
• If he is unaware of the risk, but ought to have been aware of it, he is negligent.

• A person is reckless as to whether or not any property would be destroyed or

damaged if
(1) he does an act which in fact creates an obvious risk that property will be destroyed
or damaged and
(2) when he does the act he either has not given any thought to the possibility of there
being any such risk or has recognised that there was some risk involved and has
none the less gone on to do it.

But is it Mens Rea?

• No, but it is a legitimate form of criminal fault by which people are punished for a
character flaw rather than their choices.
• “since ‘negligence’ implies a failure to do what ought to have been done, it is
therefore more than inadvertence, it is culpable inadvertence”
Professor HLA Hart

However, justice in punishment requires criminal negligence to be sensitive to the capacities

and opportunities of the defendant to satisfy objective standards of carefulness, skill, and
foresight.
• “What is crucial is that those whom we punish should have had, when they acted,
the normal capacities, physical and mental, for doing what the law requires and
abstaining from what it forbids, and a fair opportunity to exercise these capacities.”
H L A Hart, Punishment and Responsibility (1968).

Problems with punishing negligence

- The English criminal laws responses to Hart’s prescription is largely to ignore it
 - It does not take into account D’s level of experience and skill if it differs from the
reasonable person.

R v C – court did not take account of D’s mental disorder

McCrone v Riding – court did not take account of D’s inexperience
Bannister- Court did not take account of D’s advanced abilities.

Examples of intention (in relation to circumstances or results):

1. Direct intention: Where achieving it is D’s purpose – direct intent; Where it is
a means to an end;
2. Oblique intention: Where it is a virtual certainty and D has foreseen it as
virtually certain and the jury find intention?
• Reckless as to a circumstance element: when he/she is aware of the risk that it
exists or will exist;
• Reckless as to a result element: when he/she is aware of a risk that it will occur;
1. And it is, in the circumstances known to him, unreasonable to take that risk.
G [2003] UKHL 50

Brady [2006] EWCA Crim 2413 – refer to this case, very important!!!

Subjective element: D must foresee the risk

– The size of the risk is irrelevant
– How carefully D considers the risk is irrelevant
– What D thinks about the risk is irrelevant
• Cunningham [1957] 2 All ER 412; Stephenson [1979] 2 All ER 1198; Brady [2006]
EWCA Crim 2413; Parker [1977] 1 WLR 600

Objective element: Must have been unreasonable to have run that risk

• Reckless as to a circumstance element: when he/she is aware of the risk that it

exists or will exist;
• Reckless as to a result element: when he/she is aware of a risk that it will occur;
– And it is, in the circumstances known to him, unreasonable to take that risk.
G [2003] UKHL 50