Men’s rea

Men’s rea = concerned with state of mind of defendant. Most crimes need proof of men’s
rea. 3 levels of men’s rea are intention, recklessness and negligence.

Men’s Rea/fault terms

 Intention
 Recklessness
 Negligence
 No fault/strict

Men’s rea in relation to actus reus

 Act element – All actions in criminal law to be liable the criminal must be acting
voluntarily and must be intentional. You can’t commit a criminal offence without
action to the omission. Also applies to drink driving.
 Circumstance element
 Result element
 What ulterior men’s rea? – bit of an element that is not attached to the actus reus
and is essentially a mental fault required as to a circumstance means intention to
permanently deprive E.g., theft.
 Subjective men’s rea – What the defendant was thinking at the time. Was it their
purpose to achieve what they did at this time? Demonstrates intention and
recklessness.
 Objective men’s rea – Not focusing on what’s in the mind, but rather if a reasonable
person was in the defendant’s position would they have foreseen the risk.

Intention
 This needs the highest degree of fault of men’s rea. A person who intends to be a
criminal tends to be more culpable than one who acts recklessly.
 Intention can be divided into direct intent and oblique intent.
 Direct intent – tends to be majority of cases. Can exist when the defendant shows a
course of conduct to bring a result which fact occurs. E.g., A man intends to kill his
wife and gets a knife from the kitchen and stabs her to death.
 Oblique intent – More complex. Exists where D shows a course of conduct that
brings desired result knowing the consequences of their actions which brings out
another result. E.g., D intends to kill his wife and places a bomb on aeroplane that he
knows she’s on. He knows death will result in her death and other passengers. (Use
oblique intention after direct intention)

Oblique intention – Woolin

 Defendant intends if - The circumstance/result is a virtual certainty; and D foresees it
as a virtual certainty; and The Jury choose to find intention. Woolin baby was thrown
at a hard surface by accident and died and jury decided defendant. "Must have
realised and appreciated when he threw that child that there was a substantial risk
that he would cause serious injury to it, then it would be open to you to find that he
 intended to cause injury to the child, and you should convict him of murder." Then
was convicted of manslaughter

Recklessness
 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.
 Foreseeing a risk (whether that is a small chance or one that is very likely).
 Reckless = taking of an unjustified risk.
 R makes it harder to question whether subjective test applies to R or whether
objective applies.

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

 Evidence of subjective test applied to recklessness = Cunningham. Appellant ripped

gas meter off wall which led to gas escaping. Gas went through cracks of wall to
neighbour who was the mother-in-law, and she was poisoned. Charged with 1861
persons act. This gave rise to Cunningham recklessness which asks did the defendant
foresee the harm that in fact occurred, might occur from his actions, but
nevertheless continue regardless of the risk.

Objectivity vs subjectivity
 Objective element – must have been unreasonable to have run that risk.
 Subjective vs objective element = defendant is reckless if they foresee the risk and go
on to run it or is reckless if they run the risk that a reasonable person would have
foreseen.
 Evidence of objective test applied to recklessness from Cadwell. Appellant working at
hotel and after having lots of alcohol he started a fire at hotel which had 10 sleeping
guests, but nobody was harmed. Appellant convicted of aggravated criminal damage
act 1971 and appealed in relation to required level of recklessness. D said he didn’t
give thought due to his drunk state. This became Cadwell recklessness. Person
reckless where properly damage occurs if it created obvious risk and when no
thought is given to the possibility.
 Caldwell recklessness radically altered the law and received widespread criticism.
The tension between subjective and objective tests of recklessness continued
with each test being problematic. The difficulty with a subjective test is that it is
based entirely on the defendant's state of mind, and it is for the prosecution to
prove that the defendant did foresee a risk of harm. It is difficult to prove a state of
mind. It allows too many defendants to escape liability by simply claiming they did
not foresee a risk. However, Caldwell recklessness can cause injustice as it
criminalises those who genuinely did not foresee a risk of harm including those who
are incapable of foreseeing a risk as the following case illustrates: