Mens Rea

What is mens rea? Who has the burden of proof?

•  Mens rea translates as ‘guilty mind’ →  mental element of the crime. 

• It is the state of mind that is prohibited (expressly or impliedly) in the definition of the offence (i.e. if mens rea X is prohibited in the definition of the crime, and D was thinking X at the time of the actus reus, then D may be guilty).

• The burden of proving mens rea is on the prosecution.

What are the two ways of viewing mens rea?

Subjective → The fact-finder (the jury or magistrates) assesses the mens rea according to what D was thinking at the time of the actus reus.

Objective mens rea is also one which considers what a reasonable person would have thought.

When do you use an objective reasoning to analyse mens rea?

Negligence (including gross negligence) → Adomako [1994]

Dishonesty →Ivey [2017] (see Theft)

When do you use a subjective reasoning when analysing mens rea?

Intention → Moloney [1985]

Recklessness → Cunningham [19571, R v G [2004]

Wilful → Sheppard [1980]

Awareness → Law Commission, Murder, Manslaughter and Infanticide (Law Com No 304, 2006)

What are the three categories of mens rea?

2. intention

3. recklessness

4. negligence

What is the general definition of intention?

General definition of direct intention → Mohan 1975 → result which the defendant wanted or aimed to produce.

What is indirect/oblique intention?

the defendant did not want or aim to produce it, they did foresee the result as very likely to occur because of their actions.

Test for indirect/oblique intention

Test from Woollin 1999

1. Is the result a virtually certain consequence of D's actions? If no, intent cannot be found. If yes, proceed to the next question;

2. Did D realize the result was a virtually certain consequence of his actions? If no, intent cannot be found. If yes, proceed to the next question;

3. Does the jury, considering all the evidence, decide it is appropriate to find intent?

What is recklessness?

To take an unjustifiable risk.

What needs to be shown to prove intention?

• Two things need to be shown → defined when the House of Lords adopted the Law Commission’s recommendation after R v G 2004. 

1. The defendant saw the risk of harm being caused by their act and decided to act anyways. 

2. The defendant taking the risk was unjustified.

there are two limbs, subjective and objective

What is the subjective limb of recklessness?

D can only be convicted if the prosecution shows that D, himself, saw the risk and decided to act. It involves looking into the mind of the defendant. The question is not what D ought to have seen or foreseen.

Cunnigham 1957

This is the leading case. D stole a gas meter and its contents from the cellar of a house and in so doing fractured a gas pipe. The gas escaped and V inhaled a considerable quantity of the gas. D was charged with maliciously causing another to take a noxious thing under s 23 Offences Against the Person Act 1861. The judge directed the jury that ‘maliciously’ meant ‘wickedly'—doing ‘something which he has no business to do and perfectly well knows it’. However, D's appeal was allowed. Wherever the word ‘maliciously’ appears in a statutory crime, the prosecution must prove either that D intended to do the particular type of harm in fact done, or that D foresaw that such harm might be done.

What is the objective limb of recklessness?

D’s risk taking must be unjustifiable. 

This is assessed objectively → would the reasonable man regard taking the risk as unjustifiable?

What is negligence?

• If D’s conduct falls below the standard expected of a reasonable person, they are negligent. 

• Some crimes such as driving without due care and gross negligence manslaughter.

• What is in the defendant’s mind is irrelevant.

What is the concurrence Requirement

The intent and the act must both concur to constitute a crime.

Fowler v Padget 1969

‘For an assault to be committed, both the elements of actus reus and mens rea must be present at the same time.’

This is called the principle of continuation.

What if there is a series of events?

If a series of bad actions are performed to achieve a plan, courts may use the merger/single-transaction doctrine to find concurrence. If the mens rea is formed but the actus reus is not completed till later, D can still be convicted.

Thabo Meli 1954

Two defendants lured V to a hut. They hit V over the head, intending to kill him, but only knocked him unconscious. Believing he was dead, and to fake an accident, they rolled him off a cliff. V died of exposure at the bottom of the cliff. The Privy Council held ‘it was impossible to divide up what was really one series of acts.’ They were therefore held to be guilty of murder.

What is transfered malice?

For example: D aims to kill or injure X but accidently kills or injures V. The law allows for the mens rea to transfer to the actus reus against his unintended victim.

Gnango 2012

an innocent passer-by was accidentally shot during a shoot-out in a public place between two men. The men were guilty of murder even though they were trying to kill each other, not V.

Latimer (1886) 17 QBD 359

D went to hit X with her belt, but the belt accidentally rebounded and hit V, causing injury. D‘s malicious intent against X was transferred to V.

However, the doctrine cannot extend to a transfer of malice from an unborn foetus to the human being the foetus is to become, nor from the mother to the unborn child

Attorney-General’s Reference (No 3 of 1994) [1998]

D stabbed a woman (V1) in the abdomen, knowing that she was pregnant. Two weeks after the stabbing, V1 went into labour and gave birth to a premature child (V2), who was born alive but later died. On the death of V2, D was charged with V2's murder. It was held that mens rea could not be transferred from the mother (V1) to the foetus and then from the foetus to the child (V2).

What is the limit of transfered malice?

Cannot join the actus reus of an offence against property, such as criminal damage (breaking a window) with the mens rea of an offence against the person (intention to injure V).

Pembliton (1874) LR 2 CCR 119 → D had been fighting with others. He threw a stone at them, which struck a window and did damage. His intention to injure was not sufficient mens rea for damage to the window.