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CRIMINAL LAW 107: Mens rea, Direct & Indirect Intention, Recklessness and Transferred Malice £6.99
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CRIMINAL LAW 107: Mens rea, Direct & Indirect Intention, Recklessness and Transferred Malice
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This document provides an in-depth summary on mens rea, direct and indirect / oblique intention, recklessness (including their outdated AND current tests with advantages and disadvantages) and transferred malice. There are also some notes on how actus reus and mens rea can occur at different ti...

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  • November 13, 2023
  • 11
  • 2021/2022
  • Lecture notes
  • Laurene soubise
  • Mens rea, direct and indirect / oblique intention, transferred malice, recklessness

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Mens Rea
Mens rea is the mental element of the crime. It is the state of mind that the defendant must’ve had when
committing the actus reus (guilty act).

Mens rea = guilty mind.

All elements must be present if D is to be guilty of committing a crime, that is:

➔ Actus reus, mens rea, and no defence.

The mens rea allows us to determine the blameworthiness of the offence.

For example: D1 shoots V1, intending to cause death. V1 dies. D2 shoots a target. V2 is hiding behind
the target, unbeknownst to D2, V2 dies.

➔ D1 has intention to cause death, which renders her blameworthy. D2 does not have this intention
to cause death.

When we assess mens rea, we are looking at the legal, not moral blameworthiness or guilt. It looks at
whether D has the state of mind required to render him legally guilty, rather than D having a guilty mind in
a moral sense.

Yip Chiu-Cheung v The Queen [1995] 1 AC 111 - Charged with conspiring with E, an undercover police
officer to export drugs from Hong Kong to Australia. E testified that he had made an agreement with D to
export drugs. The offence of conspiracy requires at least two people to make an agreement regarding the
commission of an offence. D argued that E couldn’t be viewed as a co-conspirator, as E was an
undercover police officer and therefore did not have the mens rea for conspiracy.

Held: E did have the mens rea to conspire, as he had the intention to commit the crime. The fact
that we would not view the police officer as morally culpable was irrelevant. D was found guilty of
conspiring to export drugs.

Ignorance of the law is not a defence - R v. Esop (1836) 173 E.R. 203 - D, from Baghdad, was
charged for a sexual offence which took place on a ship lying in an English port. The fact that the act he
committed was lawful in his own country, even though he did not know English law was irrelevant. He had
still intended to commit the act, therefore he had the mens rea, and when combined with the actus reus,
he could be convicted with the offence.

➔ Mens rea relates to whether or not the defendant had the required state of mind to carry out
the act outlined in the offence. It does not require an intention to knowingly carry out a criminal
offence. D does not need to know if the act is illegal, he has to simply have the required state
of mind to do the act.

Mens rea differs according to the offence:

Murder – an intention to kill or cause grievous bodily harm. R v. Cunningham [1982] AC 566, R v.
Moloney [1985] AC 905

Criminal damage – Intending to destroy or damage [property belonging to another] or being reckless as
to whether any such property would be destroyed or damaged. s.1 Criminal Damage Act 1971

Rape – A intentionally penetrates the vagina, anus, or mouth of another (B) with his penis… A does not
reasonably believe that B consents. s.1 Sexual Offences Act 2003

,Intention is not the same as motive:

R v. Cox [1992] 122 BMLR 37 - A doctor gave his patient a legal injection with her families’ support to
bring an end to her pain, as she was terminally ill.

D had intended to kill his patient and an intention to kill is the required mens rea for murder. He was
accordingly convicted of attempted murder: he was not convicted of murder as they could not prove that
his injection caused his patient’s death.

However, in some cases, the courts do seem to have interpreted intentions narrowly in order to
ensure that certain defendants are not prosecuted…

R v. Steane [1947] KB 997 - Steane was in Germany when war broke out, he was told he must
broadcast propaganda for the enemy or else he and his family would be put in a concentration camp. His
motive for complying was to save his family from the concentration camps. After his release, Steane was
charged with the offence of assisting the enemy. However, he had a good motive of doing this act in order
to save his family from the concentration camps. The court took a much narrower approach to intention,
and it was held that Steane had intended to assist his family, but not the enemy.

s.28(1)(a) Crime and Disorder Act 1998 - Defines a racially aggravated offence as one motivated wholly
or partly by hostility towards members of a racial or religious group.

Intention is not the same as premeditation:

A person does not have to have planned an act in order to intend to do it. They can intend the act
spontaneously in the spur of the moment.

Intention is not the same as foresight:

Where D’s purpose is to kill, it doesn’t matter if they thought they were likely to succeed. Where D’s
purpose is unclear, or where, for example, death is not their primary purpose, the fact that D foresaw the
risk of death or serious injury doesn’t mean that he intended it. It can only be evidence.

➔ R v. Hancock and Shankland [1986] AC 455 – “Probability, however high of a consequence, is
only a factor in determining the mens rea.”

Direct Intention

The ordinary meaning of direct intention is D’s aim or purpose - Cunliffe v Goodman [1950] 2 KB 237;
R v. Mohan [1975] 2 All ER 193.

➔ Aim or purpose is not the same as want or desire.

Lord Bridge in R v. Moloney [1985] AC 905 – ‘The golden rule should be that… the judge should avoid
any elaboration or paraphrase of what is meant by intent, and leave it to the jury’s good sense to decide
whether the accused acted with the necessary intent.’

Indirect / Oblique Intention

In the vast majority of cases, asking whether the prohibited result i.e. death, was D’s purpose, will be
enough to determine intention.

In R v. MD [2004] EWCA Crim 1391, the court of appeal considered that it would be inappropriate to give
further direction in most cases.

, However, they did accept that in some very rare cases, D may still legally intend a result even
though it is not her aim or purpose – this is known as indirect intention, also known as oblique
intention.

‘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… a side-effect that you accept as an inevitable or
“certain” accompaniment of your direct intent.’ - Glanville Williams, Oblique Intention (1987) 46
CLJ 417, 421.

In rare circumstances, D can be found to have intended something that was not her aim or
purpose.

The OUTDATED test for indirect / oblique intention *do not apply this in problem questions*:

The outdated test is useful to understand as you can use this in problem and essay questions to compare
it to the current test for indirect / oblique intention. This will help you pick up marks.

R v. Hyam [1975] AC 55: ‘high probability’ - D wanted to scare her love rival, V, so put blazing
newspaper through V’s letterbox. D therefore directly intended criminal damage, it was her aim or
purpose to destroy or damage V’s property. However, D, by lighting the fire, also caused the death of V’s
two children.

The death of the children was a side-effect of posting the blazing newspaper through the letterbox, the
question was whether D indirectly intended to cause death or serious bodily harm – did D have the mens
rea for murder?

Held: The foresight of a high probability of serious bodily harm was sufficient mens rea for murder.

The problem with the ‘high probability’ test was that it blurred the line between intending to do
something, and being reckless about something happening.

R v. Moloney [1985] AC 905: ‘natural consequence’ - The House of Lords clarified that the mens rea
for murder was not foresight of a high probability of causing serious bodily harm, but an intention to kill or
cause serious bodily harm. – This is still good law.

In Moloney, V and his son-in-law (Moloney) had a race to see who could load a shotgun the quickest. In
the course of the game, the father-in-law (V) said: ‘if you have the guts, pull the trigger’. Moloney pulled
the trigger and shot V in the head. Moloney said ‘I didn’t aim, I just pulled the trigger and he was dead’. It
seems that Moloney’s aim or purpose was not to kill or cause serious bodily harm to his father-in-law, but
to win the race.

The question was whether he indirectly intended death or serious injury, as a side-effect of what he was
doing?

On the rare occasion where the result does not seem to have been D’s direct aim or intention, Lord
Bridge held that the judge should invite the jury to consider two questions:

1) Was death or really serious harm a natural consequence of D’s voluntary act?

2) Did D foresee that consequence as being a natural consequence of his act?

Moloney’s conviction was quashed, as the trial judge misdirected the jury that intention existed if Moloney
foresaw that death or serious injury would ‘probably’ happen.

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