Mens rea

Mens rea is the mental element of an offence. 

Each offence has its own mens rea.

However, exceptions are of cases of strict laibility they do not require a mental element.

Prosecutions must prove mens rea for the offence.

There are different levels of mens rea. To be guilty of an offence the defendant must have the minimum level of mens rea required for the offence.

Highest level of mens rea is intention (also referred to as 'specific intention'). The other main types of mens rea are recklessness, negligence and knowledge.

In the case of Mohan (1975) the court defined 'intention' as:

" a decision to bring about, in so far as it lies within the accuse's power, [the prohibited conseqeunce], no matter whether the accused desired that consequence of his act or not."

This shows that defendants motive or reasons for conduct is not relevant.

This is illustrated in the offences set out in s 18 of the Offences Against the Person Act 1861. For this offence D must cause wound or GBH. The mens rea is that D must intend to wound or GBH. If D did not intend to cause this, then he cannot be guilty of this offence.

The case of Mohan, made it clear that motive is not the same as intention and  its not relevant in deciding whether the accused has intention.

In majority of cases, D has direct intent, this is when the D intends the specific consequence to occur.

But there are circumstances where D itends one thing but the actual consequence that've occured is actually different.This is known as oblique intent (also referred to as indirect intent).

Hyam v DPP (1975)

• D put burning newspaper through the letterbox of her boyfriends mistress's house to scare her
• She did not realise anyone was at home and 2 children died in the fire.
• The court held that ' D must have foreseen that death or GBH was highly likely to result from her conduct and this means that she had the mens rea for murder.'

Moloney (1985)

• Ds were at a family party
• After heavy drinking, they had a contest to see who can load and fire a gun first
• By accident the D shot his stepfather.
• D's conviction of murder was quashed

A problem with proving intention is in cases where the D's aim was not the prohibited consequence. However if the D foresaw that such would occur due to his actions, then he may be found guilty. This is referred to as 'foresight of consequences' .

Starting point for foresight of conesequences is set out in s 8 of the Criminal Justice System which states that:

" A court or 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 by reason only of its being a natural and probable consequence of those actions, but

b) shall decide whether he did intend or foresee that result by reference to all the evidence, drawing such inferences from all the evidence as appear proper in the circumstances. "

These are mainly used in murder cases.

The important point is that D must intend or foresee a result. In murder cases, the D must foresee that death or serious injury would be caused.

Moloney (1985)

D and his step father were at a family party, they were playing Russian roulette and the D managed to load his gun faster and then fired at his step-father, who then died. 

Defendant was convicted of murder but conviction was quashed on appeal. HoL ruled that foresight of consequences is only evidence of intention, it is not intention itself. (This was the binding part of the judgment).

However other parts of their judgment have been overruled in later cases, as Lord Bridge stated that jurors should consider the following the questions:

1. Was death or serious injury a natural consequence of the defendant's act?

2. Did the defendant foresee that consequence as being a natural result of his act?

These questions are often referred to as Moloney guidelines.

The problem with these questions is that it does not mention the word 'probable' as in s 8 of the Criminal Justice Act 1967 mentions the phrase ' natural and probable consequence'.

Hancock and Shankland (1986)

D's were miners on strike and tried to prevent another miner going to work by pushing a concrete block from bridge onto the road that the miner was driving his car, but the concrete block went through the windscreen killing the miner.

Trial judge used the Moloney guideline to direct the jury and the D's were convicted of murder.

However on appeal to the CoA, the conviction was quashed which was upheld by the HoL.

Lord Scarman stated the Moloney guidelines in this case were unsafe and misleading, he said:

'... they require a reference of probability. They also require an explanation that the greater the probability of a consequence the more likely it is that the consequence was foreseen and  if that consequence was foreseen the greater the probability is that the consequence was also intended.'

Next case was Nedrick (1986) where CoA thought that judgements made in the two earlier cases should be made more clearer.

Nedrick (1986)

D who had grudge against a women, poured paraffin through the letter box of her house and set it alight . This resulted in the death of a child. The D was convicted of murder but CoA quashed this and changed to manslaughter.

To make law passed in the previous cases easier, CoA stated that it would be helpful for jurors to ask themselves these two questions.

1. How probable was the consequence which resuktes fromD;s voluntary conduct?

2. Did D foresee that consequence?

Thus it was necessary for the consequence to be a virtual certainty and for the D to have realised that. If this was the case then there was evidence from which the jury could infer the necessary intention.

Lord Lane stated that: 'The jury should be directed that they are not entitled to infer the necessary intention unless they feel sure that that death or serious bodily harm was a virtual certainty (barring some unforeseen intervention) as a result of the defendant's actions and that the defendant appreciated that such was the case.'

This remained as law until 1998 and the case of Woollin (1998).

Woollin (1998)

D threw his three month old baby towards the pram which was near the wall. The baby sustained serious head injuries causing death. Court held that consequence must have been a virtual certainty and D must have realised that. Where jury was statisfied with these two point, there was evidence where intention could be found.

HoL thought that the two questions in Nedrick were not helpful. They held that the model direction from Nedrick should be used, but the word 'find' should be used rather than 'infer'.

So model direction given to jury when considering foresight of consequence now is:

' the jury should be directed that they are not entitled to find the necessary intention unless they feel sure that death or serious bodily harm was a virtuakl certainty (barring some unforeseen intervention) as a result of the defendant's actions and that the defendant appreciated that such was the case.'

The decision in Woollin caused some problems.

• The word infer was used in s 8 of the Criminal Justice Act 1967, whereas the word 'find' was used in the case of Woollin. Another problem is whether the use of the word 'find' means that foresight of consequences is intention and not evidence of it.
• In his judgment Lord Steyn said that the effect of the direction is that 'a result foreseen as virtually certain is an intended result'.
• He also pointed out that in Moloney HoL said that if a person foresees the probability of a consequence as little short of overwhelming ,this ' will suffice to establish the necessary intent'. He emphasised the word 'establish'. This seems to suggets that HoL regarded foresight of consequence as intention, when in Moloney it clearly stated that it wasn't.

This caused conflicting decisions to be reached in later cases.

Civil cases of Re A (2000), doctors asked courts whether they could operate to seperate conjoined twins when they foresaw that this would kill the weaker twin.

Criminal case, of Mathews and Alleyne (2003), CoA held that the judgment in Woollin meant that foresight of consequences is not intention: it is a rule of evidence. If jury decides that the defendant foresaw the virtual certainty of death or serious injury, they are entitled to find intention but dont have to do so.

Matthews and Alleyne (2003)

D's dropped the victim into a deep river, after having been told by victim that he could not swim. They failed to be sure that vicitm was safe before they left. The victim drowned.

The trial judge had directed the jury that defendants intention to kill could be proved either by direct intention to kill or by the defendants appreciation that V's death was a virtual certainty(barring an attempt to save him) together with the fact that the defendants did not intend to save the victim.

But CoA stated that trial judge had been wrong to say that appreciation of virtual certainty constituted intention.

Although they upheld the conviction as they said that as long that jury were sure that defendants appreciated virtual certainty of death and if they did not attempt to save V at the time of the throwing then they had no intention of saving him.

A lower level of mens rea than intention. Recklessness is where the D knows there is a risk of the consequence but takes that risk.

Explanation of recklessness comes from the case of Cunnigham (1957)

Defendant tore a gas meter from a wall in order to steal the money in it. But the gas seeped into next door neighbour affecting the resident. D charged with an offence under s 23 of the Offences Against the Person Act 1861, of maliciously administering a noxious thing.

Court held that he was not guilty as he did not realise the risk of gas escaping, nor had he taken a risk he knew about.The word 'maliciously' used in the case indicates that mens rea is required. Court held that in order to have the required mens rea D must have intention to cause consequence or must realise the risk of consequence and take it anyway.

'Malicious' means doing something intentionally or being subjectivelly reckless about the risk involved.

Offences for which recklessness is sufficient for mens rea include:

• assault & battery
• assault occasioning actual bodily harm
• malicious wounding
• criminal damage

A person is negligent if they fail to meet the standards of the reasonable person. The D will be guilty because he did not act as a reasonable man would have done in the circumstances, what the D intended or thought is not relevant. Thus an objective test. 

Negligence is mainly relevent in manslaughter by D committing 'gross negligence' - Adomako (1994).

It has been difficult for courts to define intention where foresight of consequences have been involved for example:

• natural and probable consequence - necessary to include both of these words in the test when finding intention as something can be a natural consequence without it being probable consequence.
• difficulty for jurors to apply the law - following the case of Moloney and Hancock & Shankland where jurors have been directed on the level of probability, it had been left in a state which made it difficult for judges to explain to the jurors and then for them to apply it to cases.
• the change from infer to find in Woollin
• still two interpretations of the judgement in Woollin - in Re A CoA thought that Woollin meant that foresight of consequences is intention, but in Matthews and Alleyne, they stated that foresight of consequences is only evidence of intention

Transfered malice is where the mens rea of the crime directed at one person is transfered to the unitended victim of the crime. D can only be guilty if he committed a similar offence to the offence intended with the necessary mens rea - but if the mens is for a completely different type of offence, D may not be guilty.

R v Latimer (1886) -  D during an argument, took off his bealt and swung it as the intended V, but instead it bounced off and hit a woman in the face. D guilty of an assault against the woman. Intention is transferred under the doctrine of transferred malice.

R v Pembliton (1969) - D  threw a stone, intending to hit the people with whom he have been fighting, but instead the stone hits and brakes a window.In this case there's no transferred malice as the actus reus of the two crimes both intended and unitended one are different. The rule is if the actus reus is the same then mens rea can be transferred.

R v Mitchell (1983) - D pushes a man whilst at the postoffice, who then falls onto an elderly women, whom sustains injuries from which she later dies from. Mens rea transferred as the actus reus - causing violence was the same.

Letisha and Charlene - two innocent girls happen to be in the wrong place at the wrong time and were shot whilst the Ds were aiming to kill another member from a different gang group. Ds guilty of murder.

For an offence to be complete, both the actus reus and mens rea must be present at the same time.

Thabo Meli v R (1954) - Ds attacked a man, believed they had killed him and as a result thrown him over a cliff. V survived the the attack, but had died due to the condition in the cliff. Ds were guilty of murder. Ds guilty as the actus reus and mens rea were combined in aseries of acts.

Similarly... In the case of Church (1965) - D had a fight with a woman, knocking her out. He had tried to resusciate her for half an hour, after unsuccessful results, he had dumped her body in a river. V drowned. Conviction of manslaughter upheld.

Continuing act:

Fagan v Metropolitan Police Commissioner (1986) - D drove onto a policeman's foot, without realising it. After being told what he had done, D refused on several occassion - eventually have removed car. Convicted of assaulting the police officer whilst on duty.

Held that D required the mens rea as aware of what he has done and since the actus reus was still contuniuing, both of these element were present.