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  • Created on: 10-04-13 12:01

Mens rea

The mens rea or guilty mind is the mental element of the crime. Each offence requires both an actus reus and means rea (apart from crimes of strict liability) and they must coincide. There are two levels of mens rea we need to consider, intention the highest and usually required for the most serious crimes and recklessness.

Intention- In Mohan (1975) intention was defined as 'a decision to bring about, in so faras it lies within the accused's power (the prohibited consequence), no matter whether the accused desired that consequence of his act or not'. This means that D's motive or reason for doing the act is not relevant.

Where D takes a concious decision to bring aboout the prohibited consequence, regardless of motive, and succeeds in bringing about that prohibited consequence it is known as 'direct intent'. Usually this will be obvious from the circumstances of the case and not present the jury with problems. It is more difficult for the jury when D claims that the prohibited outcome was not what they wanted to happen but it was something he could foresee would cause these consequences. This is known as indirect or oblique intent.

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Mens rea- Foresight of consequences & recklessness

Foresight of consequences.

The first rule for indirect intent is that foresight of consequences is not the same as intent but can be evidence of intention. Secondly, the jury may use this evidence to find that D had the necessary intention where they are satisfied that the harm caused as a result of D's actions was a virtual certainty and the D realised that this was so. Woollin (1998)- D violently shook and then threw his 3 month baby son against a wall. The court may infer a result is intended, if the consequences are virtually certain, and the defendant knew this result was virtually certain.


This is where D takes an unjustified risk. The case of Cunningham (1957) tells us taht the recklessness must be subjective, meaning that D must have realised the risk but decided to take it. Cunningham (1957)- D broke into his mother in laws celler and ripped the gas meter off the wall. His mother was poisoned by the gas and died. He is charged with maliciously administering a noxious thing. It was quashed as it was recklessness, D must realies he is taking the risk.

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Mens rea - recklessness part 2 and Transferred Mal

The case of Savage (1991) confirmed that the same principle (that D realises the risk but decides to take it) applies to any Act of Parliament which uses the term 'maliciously'. This means that subjective recklessness can be used for all the non-fatal offenes you will use this year, with the exeception of s18 wounding with intent.

Transferred Malice

This is the principle that D can be guilty if he intended to commit a similar crime but against a different victim. However, where the mens rea is for a different type of offence D may not be liable.

 Latimer (1886)- L is in a pub and he goes to hit someone with his belt the belt rebounded hitting a women in the face and cutting her. The courrt decided he had the mens rea for her injuries as the malice was transferred from the original V.

Pembliton (1874)- d threw a stone at a group of people fighting outside a pub. He missed the people and the stone smashed the pub window. The court decided that he didnt have the mens rea for this offence because it couldn't be transferred from people to property.

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Mens rea- Strict Liability

Offences of Strict liability are where D is guilty simply by doing the Actus Reus, no Mens Rea is required. These are seen as unjust as the D need not be at fault to be guilty.

Harrow LBC v Shah (1999)- D owned a news agents which was selling lottery tickets he told his staff not to sell lottery tickets to people under 16, gave them training and put up notices. The staff sold the lottery ticket to someone under 16. The court says there is no blame on you but you are guilty.

Becasue strict liability offence are seen as unjust they tend to be restricted to issues of public safety. Judges expect any relevant Act of Parliament to make it clear that the offence is one of strict liability. If it does not then the Judges assume mens rea is required. Gammon v AG of Hong Kong (1985)- the court said it will be a strict liability offence if the crime is regulatory in nature. It is a matter of social concern. The Act of Parliament clearly makes the offence SL.   B v DPP- Confirms what the court says in Gammon, 15 year-old boy was on the top deck of a bus. He asked a 13 year old girl to give him a 'shiner' he was charged with an Act of gross indency on a child under the age of 14. The judge said this was crime of SL and therefore it was no offence for the boy to say he didnt no she was under 14. Conviction quashed by CofA they said it was truly criminal in nature it must have a mens rea.

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