Mens Rea Introductory Lecture Transcript

Introduction to Mens Rea

Slide 1
Hi everyone! My name is Megan and welcome to this is 15-minute presentation on mens rea.
In the previous cycle it was explained that actus reus refers to the conduct of the accused.
Mens rea however, concerns the state of mind of the accused, as set out in clause 6 of the
Draft Criminal Code Bill

Slide 2
It’s helpful to view the elements of a crime as an equation. Actus reus plus mens rea without
a defence equates to a crime in UK criminal law.
In order to ascertain what state of mind is required we need to look at the definition of each
crime. For example, the legal definition of murder is: 'the unlawful killing of a human being
with malice aforethought’. Malice aforethought has been interpreted by the courts as
intention to kill or intention to cause GBH.

There are different degrees of ‘fault’ in the criminal law. The three main forms of mens rea
are intention (both direct and oblique intention), recklessness and negligence. It is generally
accepted that the different fault elements form a hierarchy, with intention and knowledge
being the most culpable, followed by recklessness followed by negligence. The upcoming
slides will be discussing these fault elements in greater detail.
It is important to recognise that mens rea concerns legal guilt - not moral guilt. Therefore,
good versus bad motive is generally an irrelevant question. Lord Chief Justice in the case of
Inglis highlights this by stating that the law of murder does not distinguish murder committed
for malevolent reasons and murder motivated by familiar love.

Slide 3
Section 8 of the Criminal Justice Act tells us that intention and recklessness are totally
subjective questions. We are only concerned with what is going on in the defendant’s mind.
There is no reference to the concept of the reasonable man for example. This means that: if a
consequence is a natural/probable consequence it does not mean that the D intended or
foresaw it. Again, we are concerned with what is going on in the defendant’s mind; (2) at the
same time, sub-section (b) qualifies this to some extent. Proving what someone was actually
thinking at the time is impossible. You can only conclude from the circumstances. So when
you are trying to prove what someone was thinking you can have regard to all the
surrounding evidence. This may include the events; the defendant’s intellect and also what
the judge and jury as reasonable people would expect.

The University of Bristol has committed to decolonising its curriculum, which essentially
means incorporating anti-colonial and anti-racist agendas into the core content and materials.
When speaking about the ‘reasonable’ man I’d like for you all to consider what the
‘reasonable man’ looks like to you. When doing so, reflect upon the words Dr Foluke
Adebisi, who writes about the intersecting nature of racism, sexism and classism involved in
the ‘reasonable man’ standard. Other scholars also indicate that the reasonable man standard
provides scope for unconscious bias in juries to go unaddressed in the courtroom.

Slide 4
Direct intention is proven where the defendant does an act with the aim or purpose of causing
a particular result. This is in accordance with the definition in the Oxford English Dictionary.

Lord Bridge in the case of Moloney suggested that the ‘golden rule’ should be that, when
directing a jury on the mental element necessary in a crime of specific intent, the judge
should avoid any elaboration of what is meant by intent and instead leave it to the jury’s good
sense to decide.

Direct intention was further defined in the case of Mohan in which Lord Justice James
defined direct intention as “a decision to bring about… no matter whether the accused desire
that consequence of his act or not”, as well as Steane in which Lord Goddard insisted “a man
is taken to intend the natural consequences of his acts”.

Slide 5
If direct intention is fulfilling an aim, objective or purpose, then what happens when someone
is killed or seriously hurt and this wasn’t the defendant’s aim or purpose? In rare cases, this
question will arise. Juries will be expected to consider whether a defendant has sufficient
mens rea where he does not have as his aim or purpose that the victim will be killed or
seriously harmed but the defendant does foresee the victim’s death or serious harm as a
highly probable or virtually certain result from their conduct. This is known as oblique
intention.
Until relatively recently, the predominant judicial view was that an actor was taken to have
intended their result if they knew it was a highly probable result of their conduct. This was
the position Lord Diplock in Hyam v DPP endorsed – that foresight of probability of serious
bodily harm or death was a sufficient mens rea for murder.
In Moloney however, Lord Bridge substituted reference to probability and instead focused on
foresight. The two questions Lord Bridge posed for establishing sufficient mens rea was first,
was death or serious bodily harm a natural consequence of the defendant’s voluntary act and
secondly, did the defendant foresee that consequence as being a natural consequence of his
act?

Slide 6
Shortly after Moloney, the case Hancock and Shankland reinstated a reference to probability
to the test of oblique intention. Lord Scarman held the Moloney guidelines to be unsafe and
misleading. It was held that when determining sufficient mens rea in cases of oblique
intention it is imperative to include an explanation that the greater the probability of a
consequence the more likely it is that the consequence was foreseen, and that if the
consequence was foreseen the greater probability is that the consequence was also intended.
In quick succession followed the case of Nedrick, which introduced different language to the
test of oblique intention – by way of reference to ‘virtual certainty’. Lord Lane’s test of
intention is set out as such: Firstly, a result is intended when it is the actor’s purpose to cause
it – this is direct intention. Secondly, a court or jury can infer that a result is intended, though
it is not the actor’s purpose to cause it when a) the result is a virtually certain consequence of
the act and b) the actor knows that it is a virtually certain consequence – this is oblique
intention.

Slide 7
The current leading case on oblique intention is Woollin. In the case of Woollin, the
defendant threw his 3 month year old child against a hard surface. The baby suffered a
fractured skull and died. The jury initially convicted Woollin after the trial judge directed the
them that if they were satisfied the defendant realised and appreciated when he threw that
child there was a substantial risk that he would cause serious injury to it then it would be
open to you to find that he intended to cause injury and he should thus be convicted of
murder. However, the House of Lords substituted Woolllin’s murder conviction for
manslaughter, citing a material misdirection which made conviction unsafe.
The House of Lord’s approved Nedrick’s wording regarding virtual certainty, although the
test of oblique intention underwent a minor modification in the form of changing Lord Lane’s
wording from ‘infer’ to ‘find’. According to Professor Norrie the purpose of this is to allow
the jury a degree of flexibility, in that juries may, not ‘must’ find intent.
The test for oblique intention is thus: Where the charge is murder and in the rare cases where
the simple direction is not enough, the jury should be directed that they may find the
necessary intention, if they feel sure 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. 

Slide 8
A person who does not intend to cause a harmful result may instead take an unjustifiable risk
of causing it. If he does, he may be held to be reckless. Unjustifiably taking risks with the
foresight that taking this risk may harm others is reckless and thus criminally culpable
behaviour.
The standard test of recklessness, commonly known as ‘Cunningham’ recklessness, requires
two things; a) proof of a taking of an unjustified risk and b) proof that the defendant was
aware of the existence of the risk and foresaw the possibility of the consequence occurring. In
Cunningham the defendant tore a gas metre from the wall of the cellar of an unoccupied
housed to steal the money in it. The defendant left the gas pouring out of it. It then seeped
into a neighbour’s house and the gas was subsequently inhaled by the victim whose life was
endangered. The defendant was convicted under s23 of the offences against the person act
1861 for maliciously administering a noxious thing so as to endanger life.

The Cunningham subjective approach to recklessness was the accepted definition until the
controversial, (and now accepted to be erroneous) case of Caldwell. Caldwell established an
objective test of recklessness which has now been abolished in favour of Cunningham’s
subjective recklessness test and definition.

Slide 9
But how did Caldwell come to be abolished? In 2003 the House of Lords were asked to
reconsider the meaning of recklessness in R v G and another. In G, the defendant’s aged 11
and 12 went camping with their parents’ permission. During the night they set fire to
newspapers in the yard at the back of a shop and threw the lit newspapers under a bin. They
left without extinguishing the fire. The fire spread to the wheelie bin and the shop causing 1
million pounds worth of damage. The defendant’s argued that they expected the newspapers
to burn themselves out on the concrete floor and neither of them appreciated the risk of the
fire spreading as it did. They were charged with arson contrary to s1(1) and (3) of The
Criminal Damage Act 1971. The judge initially directed the jury to the Caldwell objective
test for recklessness, expressing reservations about it being a harsh test in this context.
The defendant’s convictions were eventually quashed and the House of Lords overruled the
Caldwell objective test for recklessness in favour of the subjective test set out in
Cunningham. When doing so, Lord Bingham highlighted the criticisms of the Caldwell test.
Such criticisms include holding those to a ‘reasonable man’ objective standard as not always
being appropriate or fair, as was the case in Elliot v C whereby a 14 year old girl described as
having learning difficulties was found guilty under the Caldwell test, despite the fact the risk
would not have been obvious to her or appreciated by her given her character traits and
attributes. It is widely held that under Cunningham she would have not been convicted.

Slide 10
So we’ve established that recklessness is the conscious taking of an unjustifiable risk.
Conversely, negligence is the inadvertent taking of an unjustifiable risk. If the defendant is
aware of a risk and takes it, they are reckless. If the defendant is unaware of the risk but
ought to have been aware of it, they are negligent. A defendant is thus negligent with respect
to the circumstance when a reasonable person would know that a risk exists or will exist and
the defendant fails to appreciate that it exists.
This was the case in Adomako whereby the defendant, an anaesthetist, during the course of a
patient’s eye operation failed to respond to or notice signs of the oxygen pipe’s disconnection
and the patient subsequently died. The defendant was found guilty of gross negligence
manslaughter, and this was upheld upon appeal. In Adomako, Lord Mackay LC established
the test for gross negligence manslaughter as such: “If such breach of duty is established the
next question is whether that breach of duty caused the death of the victim. If so, the jury
must go on to consider whether that breach of duty should be realised as gross negligence and
therefore as a crime. This will depend on the seriousness of the breach of duty committed by
the defendant in all the circumstances in which the defendant was placed when it occurred.
The jury will have to consider whether the extent to which the defendant's conduct departed
from the proper standard of care incumbent upon him, involving as it must have done a risk
of death to the patient, was such that it should be judged criminal. The essence of the matter
which is supremely a jury question is whether having regard to the risk of death involved, the
conduct of the defendant was so bad in all the circumstances as to amount in their judgment
to a criminal act or omission...” Here, the negligence can therefore be attributed to a failure to
comply with a standard of conduct.
Negligence will be discussed in greater detail in future cycles in relation to involuntary
manslaughter.

Slide 11
All serious crimes and many minor offences require proof that the defendant had the relevant
blameworthy mental element or criminally culpable state of mind. However, some offences
do not require proof of mens rea. The conduct of the defendant alone is sufficient to establish
liability. These are known as offences of strict liability. Many driving offences are matters of
strict liability, such as speeding or driving without insurance.

Slide 12
Thank you for listening to this presentation and I really hope you enjoy the other
asynchronous activities we have created.