Criminal Law - Mens Rea

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  • Created by: Holly
  • Created on: 08-06-14 14:39


  • In Mohan the courts defined intention as a decision to bring about, the prohibited consequence, no matter whether the accused desired the consequence of his act or not'- it was clear that motive is not the same as intention.
  • Direct intent is where the defendant intends the specific consequence to occur, oblique intent is where the defendant intends to do something but an unintended consequence occurs.
  • The main problems occur when discussing oblique intent. The defendants ability to see the likelihood of the consequence occuring is relevant and is known as foresight of consequence.
  • The Criminal Justice Act  states that ' A court/jury in determining whether a person has committed an offence a) shall not be bound in law to infer that he intended or foresaw a result of his actions be reason only of it being a natural and probable consequence of those actions but b) shall decide whether he did intend or forsee the result by reference to all the evidence, drawing such inferences from the evidence as appear proper in the circumstances.' The courts felt that this was unclear, and so many cases have ruled on oblique intent since.
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Intention 2

  • The case of Moloney found that FoC is not intention, it is only evidence of intention. It also asked the jury to consider 1) Was death/really serious injury a natural consequence of the defendants acts? 2) Did the defendant forsee the consequence as being a natural consequence of his acts? These tests ommitted the word 'probable' used in the CJA.
  • Hancock and Shankland overruled this 2 part test and held that the greater the probability of the consqeuence occuring, the greater the probablility that it was forseen, and the greater the probability the consequence was forseen , the greater the probability it was intended.
  • Nedrick imposed another 2 part test. 1) How probable was the consequence that resulted from d's voluntary act? 2) Did the d forsee that consequence? It was necessary for the probability of the consequence occuring to be a virtual certainty and for the d to have realised that. If this was so, then it was evidence from which the jury could infer intention.
  • The case of Woolin overruled the test, and changed the word 'infer' to 'find'.
  • There are still issues with Woolin, as the word change is no clearer and intention has moved further and further away from the statute. There are also different interpretations of Woolin in the cases of Re:A and Matthews and Alleyne.
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Comment on Intention

The courts have struggled with the concept of intention where foresight of consequence is involved, in terms of natural and probable consequence, difficulty in the tests for the jury, and the judgement of Woolin.

  • It is necessary to include both the words 'natural' and 'probable' in the test for intention, because it is in the statute and it is possible for a circumstance to satisfy one and not the other.
  • The law was in a difficult state where judges found it difficult to explain to jurors and for jurors to apply the law. This is clear as cases attempted to introuduce tests for the jury.
  • The word 'find' is no clearer than 'infer' and there are still two different interpretations of its ratio.
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  •  The d knows that there is a risk of the consequence occuring and takes that risk.
  • The explanation of R comes from the case of Cunningham. The word 'maliciously' used in statute meant intention or R. It argues that R is subjective because it depends on the d's realisation that there is a risk. The case of savage held that this definition applied every time the word 'maliciously' was used in statute. It's dictionary meaning is not the correct use for law purposes.
  • There used to be two types of R, subjective and objective. Objective R was where an ordinary person would have realised the risk, and so the d could be guilty if they had not realised the risk. It was used first in the case of Caldwell and abolished in the case of g + another. It was used in the case of Elliot v C , where the defendant was a young girl with learning difficulties, she was subsequently convicted. Now, only subjective R exists.
  • Initially it was thought the decision in g & another only referred to criminal damage, however, it has since been applied to  other areas as seen in Ag ref (no 3 of 2003) (2004).
  • Objective R was a very harsh test and was used breifly for m/s, a person could be guilty even though they hadnt seen any risk. The case of Adomako re-introduced the test for GN, and then it was believed that R was no longer relevant for m/s. However, the case of Lidar demonstrated the use of subjective R in m/s. The d must realise there was a highly probably risk of serious injury/death. This is different from R for other offences which require a risk of the consequence occuring. This is justified by the seriousnes of m/s.
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Comment on Recklessness

  • The abolition of objective recklessness made it easier on defendants as they are only guilty if they realise the risk, but harsher on the victims, some may have been seriously injured or killed, it does not give sufficent protection to the public.
  • It can allow defendants to avoid liability too easily - it can be difficult to prove what was in the defendants mind.
  • It also allows d's characteristics to be taken into account, where most other areas of law do not
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  • A person is negligent if they fail to meet the standards of the reasonable man. This means it is an objective test. 
  • The defendant will be guilty  because he did not act as a reasonable man would have done in the circumstances, what the defendant thought is not relevant.
  • Used more frequently in civil law, it is only inculded in some statutue offences and for gross negligence manslaughter. The leading case is Adomako.
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  • Level of mens rea required by some statutory offences. Even where an act does not state the defendant must have knowledge, it is sometimes inferred that knowledge is required in order for the defendant to be guilty. This was seen in the case of Sweet v Parsely
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Transferred Malice

  • The principle that the defendant can be guilty if he intended to commit the crime against another person. This was seen in the case of Latimer.
  • Where the mens rea is for a completly different offence, then the defendant wont be guilty. This was seen in the case of Pembliton.
  • In some cases the defendant will not have a specific victim in mind, for example terrorists. In cases like this, the mens rea can be transferred to the actual victim.
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Coincidence of Actus Reus and Mens Rea

  • Both actus reus and mens rea need to occur at the same time for an offence to take place.
  • Sometimes Continuing Act Theory is used, as in the case of Thabo Meli and Church.
  • Continuing Act Theory means that the actus reus is continuing to meet the point at which mens rea is formed, allowing a person to be convicted.
  • It was also used in the case of Fagan.
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