Mens Rea

3 days ago

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To be found guilty of most criminal offences, the defendant must normally have both the actus reus and the mens rea of the offence.

Actus reus means the guilty act.
Mens rea means the guilty mind.

Mens rea can therefore be defined as the mental or fault element of the crime. It helps the court decide whether the defendant was sufficiently blameworthy to be convicted.

The main forms of mens rea are:

Intention
Subjective recklessness
Negligence

There are also offences of strict liability, where the prosecution does not have to prove mens rea for at least part of the actus reus.

We will now explore the different types of mens rea.

Intention

Intention is the most serious form of mens rea. It can be divided into:

Direct intention
Oblique intention

Direct Intention

Direct intention exists where the prohibited result is the defendant's aim or purpose. The defendant makes a decision to bring about that result. They have the 100% aim and desire to carry out the criminal offence.

For example, if D shoots V because D wants V to die, D has a direct intention to kill.

R v Mohan (1976)

Facts: Mohan accelerated his car towards a police officer who had signalled for him to stop. The officer moved out of the way and avoided injury.

Legal principle: Direct intention is a decision to bring about the prohibited result, so far as it lies within the defendant's power.

Oblique Intention

Sometimes the prohibited result is not the defendant's main aim, so we cannot say that they have the direct intention to commit the crime. However, the courts will apply oblique intention instead, this is where the defendant had foresight of the consequences of their actions. This is sometimes known as indirect intention, here the defendant did not have the 100% aim and desire but it is a virtually certain that the consequences will occur as a result of the defendant's actions.

The courts will use the oblique intention test that was established in the case of Woolin.

A jury may find the necessary intention if it is sure that:

Was death or serious injury a virtual certain result of the defendant's actions and
Did the defendant know this.

Oblique intention is particularly important in murder cases where death or serious injury was not the defendant's main purpose.

R v Woollin (1999)

Facts: Woollin became frustrated with his three-month-old son and threw him towards a pram. The child hit a hard surface and died.

Legal principle: The jury may find intention where death or serious injury was a virtual certainty and the defendant appreciated that fact (they knew this).

R v Matthews and Alleyne (2003)

Facts: The defendants threw the victim from a bridge into a river, knowing that he could not swim. The victim drowned.

Legal principle: Foresight of a virtual certainty is evidence from which the jury may find intention.

Subjective Recklessness

Subjective recklessness is a lower level of fault than intention. Subjective recklessness is another form of mens rea. Here the defendant is considered to have the mens rea for the crime if they were reckless, this means that they foresaw a risk that the outcome could occur but took this risk regardless.

A defendant is subjectively reckless where:

The defendant is aware of a risk that the actus reus may occur; and
In the circumstances known to the defendant, it is unreasonable to take that risk.

The test is subjective because it focuses on the risk that the particular defendant actually recognised as opposed to the reasonable person. It is not enough that a reasonable person would have noticed the risk.

R v G and Another (2003)

Facts: Two boys aged 11 and 12 set fire to newspapers behind a shop. They expected the fire to go out, but it spread and caused approximately £1 million of damage.

Legal principle: A defendant is reckless where they are aware of a risk and, in the circumstances known to them, it is unreasonable to take it. The boys could not be convicted merely because a reasonable adult would have recognised the risk.

Negligence

Negligence is mainly associated with civil law. It generally means that the defendant's conduct has fallen below the standard expected of a reasonable person.

Unlike subjective recklessness, negligence does not always require proof that the defendant personally recognised the risk. The question is usually whether the defendant should have acted differently when judged against an objective standard.

Negligence is used in some statutory offences, including certain driving offences. Gross negligence is also the basis of gross negligence manslaughter. This applies where the defendant's breach of a duty of care causes the victim's death and is so serious that it should be treated as criminal.

R v Adomako (1995)

Facts: Adomako was an anaesthetist during an eye operation. An oxygen tube became disconnected, but he failed to notice or respond to the problem for several minutes. The patient died.

Legal principle: Where D owes V a duty of care, breaches that duty and causes V's death, the jury must decide whether the breach was so bad in all the circumstances that it amounted to a criminal act or omission.

Strict Liability

A strict liability offence is an offence where the prosecution does not have to prove mens rea for at least one part of the actus reus.

For example, the prosecution may only need to prove that the defendant supplied a prohibited item. It may not need to prove that the defendant knew the item had the prohibited quality.

Strict liability offences are commonly found in areas involving:

Food safety
Medicines
Pollution
Road traffic
Public welfare
Licensing

These offences can appear harsh because a defendant may be convicted despite taking reasonable care. However, they are often justified on the basis that they protect the public and encourage businesses to maintain high standards. The courts usually begin with a presumption that Parliament intended mens rea to be required, particularly for offences that are genuinely criminal rather than regulatory. Although mens rea may not be required, a strict liability offence generally still requires the defendant to voluntarily commit the actus reus.

Pharmaceutical Society of Great Britain v Storkwain Ltd (1986)

Facts: A pharmacist supplied prescription medicines after receiving prescriptions that appeared genuine but had been forged. The pharmacist did not know that they were forged.

Legal principle: The offence was one of strict liability. The prosecution did not have to prove that the pharmacist knew the prescriptions were forged.

Absolute Liability

This is different from an offence of absolute liability. Absolute liability can include a prohibited state of affairs even where the defendant did not voluntarily create it.

Transferred Malice

Transferred malice applies where a defendant has the mens rea to commit an offence against one person but accidentally commits the same offence against another person.

The defendant's mens rea transfers from the intended victim to the actual victim.

For example, D throws a stone intending to injure A. D misses A and injures B instead. D's intention to injure A can transfer to B.

R v Latimer (1886)

Facts: Latimer aimed a blow with a belt at one man during a fight. The belt bounced off that man and struck a woman, injuring her.

Legal principle: The defendant's intention to injure his intended victim transferred to the actual victim. He was liable for the injury caused to the woman.

Transferred malice generally applies only where the defendant commits the same type of offence that they intended. This means that the mens rea can transfer from person to person or property to property but mens rea cannot be transferred from person to property or from property to person.

R v Pembliton (1874)

Facts: Pembliton threw a stone intending to hit people with whom he had been fighting. The stone missed them and broke a window.

Legal principle: His intention to harm a person could not be transferred to the different offence of damaging property. The intended and actual offences were of different types.

Coincidence of Actus Reus and Mens Rea

As a general rule, the actus reus and mens rea must coincide. This means they must exist at the same time. However, it can sometimes be difficult to prove that the actus reus and mens rea of a crime occurred at the exact same time.

The courts have developed two important approaches where the actus reus and mens rea do not appear to occur at exactly the same moment:

The continuing act principle
The single transaction principle (sometimes known as a series of events)

The Continuing Act Principle:

The continuing act principle can be applied to find that the actus reus and mens rea coincided at the same time. Here the actus reus is viewed as a continuing act, this means that the mens rea can be present at any point during that continuing act and then the defendant is guilty of the crime.

Fagan v Metropolitan Police Commissioner (1969)

Facts: Fagan accidentally drove his car onto a police officer's foot. After realising what he had done, he deliberately refused to move the car.

Legal principle: Remaining on the officer's foot was treated as a continuing act. Once Fagan became aware of the situation and refused to move, he formed the mens rea meaning that the actus reus and mens rea coincided.

The Single Transaction Principle/Series of Events:

The single transaction principle or series of events principle can be applied to find that the actus reus and mens rea coincided at the same time. Here the crime is viewed as a series of events or a sequence of events, the courts may treat this sequence of events as one transaction. The crime will be complete as long as the defendant forms the actus reus and mens rea at some point during the series/sequence of events.

R v Church (1966)

Facts: Church attacked a woman and mistakenly believed that he had killed her. He threw her into a river, where she drowned.

Legal principle: The defendant's conduct could be treated as a single sequence of events, allowing the earlier mens rea to coincide with the actus reus that caused death.

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