Mens Rea

Mens Rea
Mens rea translates to ‘guilty mind’ as it refers to the mental element of a crime. It must be proved alongside Actus Reus for a D to be guilty of an offence. This is set out in woolmington v DBB.

The mens rea of criminal offence is defined separately for each offence. It may require some particular intention on the defendant’s part, or knowledge of particular facts or recklessness or gross negligence, or the offence may be one of strict liability. That means no mens rea is needed.

There are two types of mens rea, which are basic intent and a specific intent crime. Basic intent requires evidence of either intention or recklessness. A specific intent crime is when one intention specifically needs to be proven. Recklessness is not enough. In English law some crimes are basic intent crimes whilst others are specific intent crimes, basic intent crime are crimes such as common assault and battery, assault occasioning ABH and GBH & wounding. Specific intent crimes are crimes GBH and wounding with intention.

Intention

The meaning of intention is not found in an act of parliament in judicial decisions (common law). Lord Edmund Davies set out “the law in action compiles its own dictionary. In time, what was the common coinage of speech acquires a different value in the pocket of the lawyer than when in the layman’s purse. To summarise, legally terms ‘intention have a different meaning in law to their everyday use.’

The two types of intention are direct and oblique intent.

 

Direct Intent

Direct intent is the typical situation where the consequences of a person’s actions are desired. It is the defendants aim, objective and purpose to bring about the prohibited consequence. In Mohan 1975, there was direct intent as D’s aim, objective and purpose was to cause GBH when he drove his car toward the police constable.

Intention is a decision to bring about, in so far as it lies within the accused’s power (the prohibited consequence), no matter whether the accused desired that consequence of his actions or not. This is saying that direct intent is D’s aim, objective and purpose to bring about the prohibited consequence. Direct intent for the prosecution is very difficult to prove.

Oblique Intent

The main problem with direct intention or purpose intent is proving that D actually desired the prohibited consequence. Very rarely will a D admit that it was indeed his/her purpose to bring about an unlawful consequence.

It is more common for a D to claim that he did not foresee the actual consequence which occurred, and this has left the interpretation of intention open to ambiguity. When this is the case oblique intention (foresight intention) may be used.

Oblique intent covers the situation where the consequence is foreseen by the defendants as virtually certain, although it is not desired for its own sake, and the defendant goes ahead with his actions anyway.

To require proof that it was the defendants aim, objective and purpose to bring about a particular consequence may involve placing a very heavy evidential burden on the prosecution. Not surprisingly, therefore criminal law normally only requires proof of oblique intent as opposed to direct intent.

So, if the D says he did not have direct intent how do the courts decide if the D has oblique intent. The test for oblique intention come from the case of Nedrick and has been approved in the case of Woolin.

In the case of R v Nedrick D poured paraffin through the letterbox of a house and set it alight, resulting in the death of a child. The court of appeal quashed D’s conviction for murder and substituted manslaughter. The principle for oblique intention was to answer whether the injury was a virtual certainty of the act and whether the defendant knew of this virtual certainty. If the answer is yes to both the jury can find intention.

R v Woollin was when D lost his temper with his three month old son, throwing him onto a hard surface, causing the child to fracture its skull, cauing it to die. The house of Lords allowed D’s appeal against his murder conviction and substituting a verdict of manslaughter. The principle from the House of lords, as they approved the Nedrick test, setting out that the jury were not entitled to find the necessary intention unless they feel sure that death or serious bodily harm was a virtual certainty, as a result of the defendants actions. The defendant must have also realised that his actions would have resulted in this virtual certainty.

However we must also remember that the mens rea of basic intent crimes can be satisfied by proving recklessness.

Recklessness
For some crimes such as murder or GHB/ wounding with intent, intention must be proved to establish criminal liability but for most other crimes the mens rea required is either intention or recklessness.

This is a lower level of mens rea than intention. Being reckless means taking an unjustified risk. It must be proved that D realised the risk but took it anyway. English law has complicated the matter by distinguishing two different kinds of recklessness named after 2 cases, Cunningham and Caldwell. For our purposes the only recklessness we shall consider is Cunningham subjective recklessness.

In R v Cunningham, the appellant ripped a gas meter from the wall in order to steal the money in the meter. This caused gas to escape. The gas seeped through small cracks in the wall to the neighbouring property poisoning his future mother-in-law. The trial judge directed the jury that malicious meant wicked. The jury convicted the defendant and he appealed. Because this is subjective recklessness the Defendant must have foreseen the risk but took that risk anyway.

The term subjective recklessness refers to whether the defendant foreseen the harm that occurred, or whether it might have occurred from his actions. With foreseeing the harm did D nevertheless continue regardless of the risk? 

A man D was being arrested following a scuffle outside a pub; he kicked out wildly and struck a policeman V, breaking a small bone in his hand. D was convicted of assaulting a constable, and his conviction was upheld by the Court of Appeal. The offence of common assault, they said, requires intention to cause the victim to apprehend immediate and unlawful personal violence or recklessness as to whether such apprehension is caused, or (for battery) intention or recklessness as to the application of force.

D was firing an air pistol from the window of his flat, aiming at a target in the yard below. One of the shots hit a 7-year-old girl playing in the yard, who D had not known was there. His conviction for assault causing actual bodily harm was quashed by the Court of Appeal; Recklessness as envisaged in Venna was clearly subjective recklessness (that is, that D foresaw the risk but went ahead regardless), because the judgment in Venna speaks of recklessness and intention as being often almost indistinguishable.