2.2.2 Mens Rea Lecture
The Mental Element of a Crime
In addition to meeting all of the actus reus elements of an offence, a defendant must be shown to have a guilty mind at the same time that they commit the actus reus. This guilty mind, or mental element, is known as mens rea.
For the vast majority of offences, mens rea will be satisfied if the defendant can be shown to have intended their actions or can be considered to have been reckless as to whether a consequence would occur or circumstances would exist following their conduct. However, in certain circumstances a defendant will satisfy mens rea if they are considered to have acted negligently and, for certain offences, known as offences of strict liability, no mens rea at all is required.
There are therefore four broad areas of mens rea that will be considered:
- Strict Liability (although this must be considered inside mens rea, it arises, as mentioned, where no mens rea is required.
Intention is a word that is often given its ordinary meaning. That is, a defendant will be found to have intended a consequence if they desire the consequence to follow their actions. This is the case irrespective of whether the consequence is very likely or extremely unlikely to occur.
The definition of intention (often defined as direct intent) is not limited to this simple definition. This is because a defendant can be considered to intend a consequence of their actions if the consequence is one that the defendant does not want but which he knows is virtually certain to occur as a result of their actions. This is known as indirect or oblique intent.
Unfortunately, the definition of indirect or oblique intent is far from clear. It was, for a time considered that intention could be found, if the consequences of the defendant’s actions were probable or even possible (Hyam v DPP  AC 55). However, in R v Moloney  1 AC 905 it was held that the jury should ask two questions where the issue of intention arose.
Overview of the current position
- In most cases, the facts of the case will be sufficiently clear. Therefore, where it is clear that the defendant desired the consequences of their actions, it will not be necessary to provide the jury with a detailed direction.
- Where the position is such that the defendant may not have desired the consequences of their actions, the jury should be provided a detailed direction.
- The jury should be directed that it is able to find that the defendant intended the consequences of their actions if the consequences were virtually certain and the defendant knew that they were virtually certain. Even if the jury is satisfied that this is the case, they are not required to find that the defendant intended their actions.
Ulterior Intent, Basic Intent and Specific intent
A consideration of indirect or oblique intent is only really necessary where the offence is one that requires intention as the mens rea element. These types of offences are known as offences of specific intent – only intention will suffice. Where the mens rea is satisfied by intention or recklessness, the offences are defined as offences of basic intent.
Offences of ulterior intent are those that require proof of a second mens rea element.
Summary on Intention
- Intention usually occurs where a defendant desires the consequences of their actions.
- Indirect Intent may be found where the defendant does not desire the consequences of their actions, but these consequences are virtually certain and the defendant knows that they are virtually certain.
- Specific intent refers to offences where intention is necessary to satisfy mens rea.
- Basic intent refers to offences where either intention or recklessness will satisfy mens rea.
- Ulterior intent refers to offences where an additional it is necessary to show that the defendant intended to do something in addition to the basic mens rea of the offence.
The narrow definition of intention means that it is often difficult to show that a defendant intended the consequences of their actions. This difficulty is addressed by recklessness.
The definition of recklessness differs in concept significantly from that of intention, in that the word is never given its ordinary meaning. The ordinary meaning of this word could be considered as ‘carelessness’ or ‘dangerous’ – the legal definition is far more specific than the ordinary meaning.
Where the definition of recklessness is similar to intention is that it is also somewhat unclear as to what the proper definition should be. In a general sense, it refers to a defendant’s unjustified risk taking. It is the degree of this risk taking and the defendant’s awareness of the risk that has caused the issues surrounding the definition.
This type of recklessness was initially set out in R v Cunningham  2 QB 396 and is therefore often described as Cunningham recklessness. In order to satisfy this type of recklessness, a defendant must be aware that a risk exists or will exist, or that result will occur or that there is a risk that it will and, in the circumstances known to the defendant, they unreasonably go on to take the risk.
This approach means that a defendant must foresee a risk or result and unreasonably go on to take the risk. The position is therefore subjective, not only on the foresight of the risk, but also on the reasonableness of the defendant’s actions.
Despite the test being described as subjective, it is clear that a defendant will ordinarily attempt to assert that they were unaware of the risk that they were taking. In this context, whilst the question is it one of whether the jury believes the defendant, in a practical sense, the question is whether the members of the jury believe that they would have been aware of the risk in the defendant’s circumstances. In other words, whether the defendant ought to have been aware of the risk as a reasonable person might. This approach clearly makes the test closer to an objective one.
It is important to note that a defendant cannot avoid liability by deliberately closing their mind to a risk (R v Parker  1 WLR 600). This is because, the view is taken that in order for a defendant to close their mind to a risk, they must first be aware of the risk that they are avoiding.
The Reasonableness of the Risk
The test in this context is necessarily objective. Whilst the test is set out in terms of the defendant’s perception of reasonableness, it is of course, the jury’s view of what is reasonable that is determinative. Any other approach would allow all defendants to assert that they believed that the risk they were taking was reasonable, however objectively unreasonable it might be.
Case In Focus: Chief Constable of Avon and Somerset Constabulary v Shimmen(1986) 84 Cr App R 7
For a number of years, recklessness was considered purely objectively. In Metropolitan Police Commissioner v Caldwell  AC 341 it was held that a defendant would be reckless if they foresaw a risk and went on to take it, or where a risk existed and the defendant gave no thought to the risk existing.
Although Caldwell was overruled in R v G and recklessness was returned to the previously described subjective test, it was made clear in the judgment in R v G that an objective approach could not be completely disregarded.
Summary on Recklessness
- A defendant will be reckless if they are aware that a risk exists and go on unreasonably to take that risk.
- The defendant’s awareness of the risk is considered subjectively.
- The reasonableness of taking the risk is assessed objectively.
- Objective recklessness, whilst not being fully relevant, may be a consideration.
In certain circumstances, a defendant will have the required mens rea against one victim, but will satisfy the actus reus of an offence against a person against whom the mens rea is not satisfied. The majority of texts refer to transferred malice, but you should be aware that the Supreme Court held in R v Gnango  2 WLR 17 that the term transferred mens rea is more appropriate and accurate.
Case In Focus: R v Latimer(1886) 17 QBD 359
Transferred malice is limited to offences of the same type (R v Pembliton(1874) LR 2 CCR 119).
The definition of negligence in a criminal context is the same as that in tort. A defendant must fail to reach the standard of care that a reasonable person would take and the failure to reach this standard of care must cause harm to the victim.
Save for manslaughter by gross negligence, very few offences are defined as requiring the defendant to be negligent. They are however stated in terms of the defendant failing to meet the standard that a reasonable person would meet.
It is also no defence if a defendant unreasonably makes a mistake of fact (R v King  1 QB 285).
It can be seen that the absence of the word negligence does not mean that it is not an important concept in criminal liability. In this sense, the mens rea element is closely linked to the idea of blameworthiness. Whilst the defendant’s state of mind is not entirely relevant as an individual requirement for negligence, it is relevant in terms of the standard of consideration that a defendant must, or ought, to give to a particular set of circumstances.
Strict liability offences are those types of offences where a defendant’s blameworthiness is not a relevant consideration in relation to their liability. Under these types of offences, it will not be necessary to show that a defendant possessed the relevant mens rea for at least one part of the actus reus of the offence.
It could be suggested that making a defendant liable when they have no guilty state of mind could have harsh results. This was a consideration that was made in Sweet v Parsley  AC 132.
In Sweet v Parsley it was held that where statute makes it clear that mens rea is required, no issue arises and the wording of the statute should be followed. Where the statute is silent as to the requirement of mens rea, a presumption arises that Parliament did not intend make a person who lacked a guilty state of mind liable for the offence and the courts should read in words that cause mens rea to be required. The presumption of mens rea can be rebutted if some reason can be found to show that mens rea is not necessary. When attempting to read mens rea into statute, the court must go outside the words of the statute itself and look to Parliament’s intention in order to ascertain whether it was its true intention to create an offence of strict liability.
The limitation on strict liability was taken slightly further in Gammon (Hong Kong) Ltd v Attorney-General of Hong Kong  AC 1, where it was held that the presumption of mens rea could only be overturned in circumstances where the statute is concerned with issues of social concern and, even if this is the case, can only be overturned if it is possible to show that the imposition of strict liability causes greater vigilance, with the effect that the act prevented by the statute is less likely to occur.
It is important to recognise the difference between strict liability and negligence. Although both approaches suggest an absence of mental element, for strict liability it is not necessary for any standard or threshold to be crossed before liability arises. If the defendant satisfies the actus reus of the offence, they are liable, irrespective of whether it could be considered reasonable for them to act in the manner that they acted.
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