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Mens Rea Class Notes
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Mens Rea Second Year Criminal Law Notes
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Topic 3 – MENS REA: Intention, Recklessness, Negligence, Transferred Malice andCoincidence
Mens Rea
• Mens Rea is the legal term used to describe the element of the criminal law that relates to the
defendant’s mental state
• Different crimes have different mens rea requirements e.g. theft; dishonesty and an intention
to permanently deprive / rape; intentional penetration of vagina, anus or mouth by penis and
no reasonable belief in consent
• The fault element or guilty mind
Types of mens rea (ladder form)
1. Intention – most culpable form (most blameworthy) e.g. murder requires intention
2. Recklessness
3. Negligence
Subjective Fault- what was the D thinking when he committed the act? What was the aim or
purpose?
Objective fault- what would the reasonable person in D’s situation have known or foreseen
1) Intention
• The primary meaning of intention (no statutory definition of Intention) – jury can under
intention independently
R v Moloney [1985] AC 905
• The golden rule: Judge should avoid any elaboration or paraphrase of what is meant by intent
and leave it to the jury’s good sense
R v Hales [2005] EWCA Crim 1118
• Only in rare cases will judges need to give further directions on meaning of intention
R v Ogunbowale [2007] EWCA Crim 2739
• D executed a karate style kick to V neck- Court stated no need for any complex direction on
intention
R v Haigh [2010] EWCA Crim 90
• D smothered child, no evidence to circumstances i.e. why she had done this
• Convicted of murder- appealed decision
• COA substituted manslaughter verdict- to be convicted murder, the jury had to be persuaded
beyond reasonable doubt of D’s intention to kill. On the facts- no way a jury could have been
satisfied beyond reasonable doubt
,The courts have occasionally tried to elaborate as to what the ordinary meaning of intention is:
Cunliffe v Goodman [1950] 2 KB 237
• Despite golden rule- have been given some direction of intention
• An intention connotes a state of affairs which a person does more than merely contemplate
• It connotes a state of affairs which he decided, so far as in him lies, to bring about
R v Mohan [1976] QB 1
• Intention was a decision to bring about, in so far as it lies within the accused’s power, the
prohibited consequence
Dealing with complex cases: Two Types of Intention?
1. Direct Intention: The (ultimate) aim or purpose
2. Indirect/ Oblique Intention: Not what one aims to do but what is a necessary side effect or
means to an end of one’s aim
Glanville Williams in “Oblique Intention” (1987) 46 C.L.J. 417 at 421 states:
• Direct intention is where the consequence is what you are aiming at. Oblique intention is
something you see clearly, but out of the corner of your eye.
• The consequence is (figuratively speaking) not in the straight line of your purpose, but a side-
effect that you accept as an inevitable or ‘certain’ accompaniment of your direct intent.
Evolution of the test for Indirect/Oblique Intention
While it was accepted in law that when talking about oblique intention it was necessary that the
accused had foreseen the side effect or consequence, two issues were unclear;
(1) how likely/certain the consequence that was foreseen must be before you could say the accused
intended it?
(2) what significance was to be attached to foresight (evidential or definitional)? There was also
much disagreement concerning the guidelines to be given to juries
Debate over role of foresight:
• Evidential approach- foresight is only ever evidence- could choose to find intention but is not
equivalent of intention e.g. if jury convicted someone foresaw the consequences- then they
MAY find that they intended them (foresight is a factor among other considerations)
• Definitional approach- Foresight = evidence; if jury satisfied that consequence was certain-
intention.
Clarity is important:
• Need a clear dividing line between intention and recklessness
, • Often it represents the difference between a murder charge/conviction and a manslaughter
charge/conviction
Hyam v DPP [1975] A.C. 55
• H sets fire to woman’s house- spreads- individual dies as result of fire
• H never wanted to kill woman in house- only wanted to frighten her
• H made sure her ‘lover’ was not in house when she did this (woman was new partner of ‘lover’
Court:
• Meaning of intention; the means as well as the ends and the inseparable consequences of the
end as well as the means
Ackner J. directed the jury in the following terms:
• If you are satisfied that when the accused set fire to the house she knew that it was highly
probable that this would cause (death or) serious bodily harm then the prosecution will have
established the necessary intent- definitional approach; foresight of a high probability is
intention
• H was convicted of murder BUT appealed
House of Lords: There appeared to be some uncertainty regarding the role of foresight
Lord Hailsham preferred an evidential approach:
• Knowledge or foresight is at the best, material which entitles or compels a jury to draw the
necessary inference as to intention. … I do not, therefore, consider … that the fact that a state
of affairs is correctly foreseen as a highly probable consequence of what is done is the same
thing as the fact that the state of affairs is intended.
• Rejecting definitional approach- high probability is not the same thing as intention
But Viscount Dilhorne seemed to favour a definitional approach:
• A man may do an act with a number of intentions. If he does it deliberately and intentionally,
knowing when he does it that it is highly probable that grievous bodily harm will result, I think
most people would say and be justified in saying that whatever other intentions he may have
had as well, he at least intended grievous bodily harm.
• If knowing consequence is highly probable- proves intention
HOL- level of foresight = HIGH probability
R v Moloney [1985] 1 All ER 1025
• D drinking with step father, decided to have competition on who was quickest to load gun-
shot gun and killed step father
• Charged with murder- D argued no intention to cause harm, let alone serious harm
• HOL- substituted verdict to manslaughter
• Further guidance of intention was required
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