Mens rea

  • Created by: Hbrandxx
  • Created on: 31-12-18 18:01

Identifying mens rea elements

Useful terminology to make sense of internal/external mens rea:

  • Subjective mens rea: mens rea requirement looking 'internally' to D's mind e.g. criminal damage requires mens rea of recklessness so prosecution must prove D foresaw risk
  • Objective mens rea: external to D's mind e.g. negligence is an external mens rea state, to prove negligence prosecution must show D's conduct dropped below expected standards

Role of mens rea elements

  • The mens rea of an offene must define which states of mind within the spectrum will be sufficient to satisfy the particular offence and which won't.
  • Common law has thus developed terminology for mens rea terms: intention, knowledge, belief, recklessness, negligence and dishonesty.
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Mens rea in context

Criminal damage example: D must intend or be reckless as to causing criminal damage to another's property (or to be precise state mens rea requirement for each element of actus reus)

Strict liability: actus reus with no corresponding mens rea

  • Certain offences are constructed to require actus reus elements with no mens rea:

1: Strict/absolute offences: only mens rea needed is that D's conduct was voluntary.

2: Strict liability elements: offences which require mens rea to certain actus reus elements but not all. 

Ulterior mens rea

  • Mens rea requirement that doesn't correspond to a conduct circumstance/result element of actus reus e.g. to be liable for theft, D must appropriate the property of another (AR) dishonestly and with intention to permanently deprive V of that (MR). The intention to deprive is the ulterior mens rea requirement (doesn't have to happen for offence to be committed)
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Voluntary act requirement and mens rea terms

  • Mens rea for the conduct element: focus on 'voluntariness' of D's movement/omission to move

The test for voluntariness

  • Did D have control over her conduct (act/omission) at the relevant time?
  • Will be assumed D's conduct was voluntary unless D can prove otherwise 
  • The only exception to involuntariness due to sleepwalking, spasm etc is where D's involuntariness is self-induced e.g. intoxicatio, sleep deprivationa and crashed car

Intention: mens rea term

  • Intention is the most serious standard of mens rea= greatest culpability and blameworthiness
  • Direct intention: D intends if she acts with purpose or aim towards it. Leading case defining is Moloney.
  • Oblique intention: a) virtually certain to arise b) recognises that it's virtually certain and c) jury find that this recognition amounts to an intention. Leading case defining it is Woolin.
  • Where an offence has mens rea of intention, it can be satisfied by either direct/oblique intention
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Direct and oblique intention

Direct intention

  • Intention is present if it forms part of her purpose when acting (internal, subjective requirement) e.g. D smahes V's vase in retaliation for V scratching her car (commits criminal damage with intention to circumstance and result elements)
  • 1: D directly intends the result selement of offence (damage) by acting to create damage
  • 2: D directly intends circumstance element (property belongs to another) as she hopes it belongs to V

Oblique intention

  • Always start with direct intention but if there's doubt as to D's direct intent look to oblique.
  • Assess: D obliquely intends result element if that result was a virtually certain consequence of her condcut, realised it was, and jury find the realisation amounted to intention
  • Assess: D has obliquely intended a circumstance element if the circumstance was virtually certain to be present at time of act, realised it was virtually certain to be present then, jury find the realisation amounted to an intention
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Oblique intention test

Leading case confirming 3-part test for oblique intention is Woolin:

A: Objective part (offence element must be a virtual certainty)

  • Virtually certain in fact: looking to the objective external world 

B: Subjective part (D must forsee the offence element as virtually certain)

  • Looks to the mind of D, thus if the jury find D honestly didn't forsee the offence lement as a virtual certainty, even if it was virtually certain in fact, this part of the test wont be satisfied and the jury aren't entitled to find oblique intention 

C: Jury part (jury may find intention)

  • Only when the first 2 parts are satisfied are the jury entitled to find that D intended the offence element: provides 'moral elbow room' but allows jury to decide the law and is unpredictable
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Mens rea terms


  • Seen as equivalent to 'intention' in terms of culpability. D has knowledge of an offence element if a) she believes that it's the case and b) she's correct in that belief.
  • Is both subjective and objective. Subjective part a) focuses on D's state of mind e.g. D must believe that the property belongs to another in theft and b) focuses on the objective reality e.g. what D believes must be true in fact before we can say she has knowledge of it

Wilful blindness

  • A state of knowledge can also be found where D a) foresees the possibility of a certain circumstance; b) it would be easy for D to discover the truth; c) D deliberately avoids finding out; and D) the circumstance is in fact present.
  • In this case, D's decision to 'shut her eyes' to the facts is wilful blindness.
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Mens rea terms 2


  • Not as culpable as intention/knowledge, D believes a fact but it needn't be true.
  • D has belief that a circumstance exists, or a result will be caused, where she foresees it as highly likely.


  • Must be demonstrated that D a) foresaw a risk of the relevant element of the actus reus and b) unreasonably continued to run that risk. A is subjective and B is objective. 
  • Subjective part a: D has subjectively foreseen a risk of the relevant circumstance/result e.g. D must foresee the risk of damage to the window 
  • Objective part b: does the court think that D unreasonably chose to run that risk 

Intoxication as mens rea

  • Causes problems for the application of recklessness: D is charged with an offence requiring proof of recklessness, but failed to foresee the risk due to her intoxication.
  • If D was involuntarily intoxicated, she's not liable but if D's lack of foresight was her own fault, the law can accept D's intoxication is equivalent to a mens rea of recklessness.
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