UNDERSTANDING CRIMINAL LAW

PART B:
 ELEMENTS OF CRIME
i. ACTUS REUS
ii. MENS REA
iii. CAUSATION (IF NEEDED)

INTRODUCTION
 Mens rea is the mental element of an offence
 Common words to describe the mental
element:
 Intention
 Recklessness
 Knowledge
 Malice
(WHAT ABOUT NEGLIGENCE?)
 Negligence is not a form of mens rea because
it does not describe a state of mind rather an
unacceptable standard of conduct

(WHAT IS STRICT LIABILITY?)

 Offences which does not require proof of
mental element in respect of the offence

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 CHOICE AND CHARACTER

CHOICE THEORY: CHARACTER THEORY:

H. Gross, A Theory of Criminal Justice,
New Yorkk: OUP (1979) 137
 Criminal liability is unjust if the one
who is liable was not able to choose
effectively to act in a way that would
avoid criminal liability
 People tend to be punished for their
choices rather than their character
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 A person must bear responsibility for
his character since it is his person and
not his deeds in the dock
 Responsibility is lacking when the
deeds are not a true reflection of his
(good) character – comes in hand in
certain defences such as loss of
duress / loss of self-control;
negligence-based responsibility

INTENTION

DIRECT INTENT OBLIQUE INTENT

EXMP:
(D) sets fire to his shop Direct intent: to get insurance money
Oblique intent: staffs in the shop are injured

 Obvious and clearest form of mental attitude grounding responsibility

 Intention reflects a degree of fault supporting a rational system of blame and
punishment
(WHAT IS THE PURPOSE OF INTENTION?)
 Enables crimes involving similar harms to be differentiated consistently
according to (D)’s mental element
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 (I) DIRECT INTENT
R v MOHAN (1975) defines direct intention as:

‘… a decision to bring about, in so far as it lies

within the accused’s power [the prohibited
consequence], no matter whether the accused
desired that consequence of his act or not’.

EXAMPLE
(A) decides to kill (E). Desiring to make her death look like an accident, he creates a
gas leak in her house in the expectation of causing an explosion when she lights the
cooker. (E) dies in the subsequent explosion.
(A) has a direct intent to kill (E); he wants to kill her and has decided to kill her
What is important is that the death of (E) is the point of, the reason for and the purpose
behind his action
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(II) OBLIQUE INTENT

G. WILLIAMS, ‘The Mens Rea for Murder: Leave it Alone’ (1989)

‘… intention includes not only desire of the consequence but also foresight of the
certainty of the consequence as a matter of legal definition.’
Oblique intention refers to cases where (D) can only achieve his aim at the cost of
causing also an inevitable side-effect and he acts accordingly
EXAMPLE
(B) places a bomb in the hold of an aircraft, piloted by (Z). (B)’s plan is to blow up the
aircraft in the mid-flight and claim insurance on the cargo. (B) knows that if his
scheme goes accordingly, (Z) will be killed
(B) does not directly intend the death of (Z) either; the death of (Z) is a side-effect of his
plan rather than the plan itself
Nevertheless, (Z)’s death is factually inseparable from the realization of (B)’s purpose and
since he knows it, it is appropriate to treat both consequences as intended
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 WHAT A PERSON INTENDS OBLIQUELY IS ONLY CAPABLE
OF BEING DETERMINED BY REFERENCE TO

WHAT HE FORSEES

If he foresees it highly probably

there is less cause to designate The consequence of the side-
his state of mind as intentional as effect must be foreseen as a
to the outcome – recklessness / certainty (virtual certainty)
cuplable

IN CASES WHERE THERE IS

INSUFFICIENT EVIDENCE OF A DIRECT INTENT

(1) R v NEDRICK (1986)

Lord Lane CJ:

‘…if the jury is satisfied … that (D) recognized that death / serious harm would be
virtually certain to result from his voluntary act, then that is a fact from which
they might find it easy to infer (find) that he intended to kill / do serious harm,
even though he may not have had any desire to achieve that result.’

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 (2) R v WOOLIN (1998)
FACTS:
 (W), having lost his temper with his baby son, threw him with much force
across the room causing the infant to his head
 The child later died as a consequence of his injuries
 (W) was charged with murder where he admitted he realized there was a
serious risk of serious injury but denied any desire to kill / hurt the child
HELD (House of Lords):
 The foresight of virtual certainty does not itself constitute intention
 Rather, it is the strongest possible evidence of intention