The Mens Rea of a crime refers to the mental element or the state of mind the

defendant possesses in order to be liable for an offence. Mens Rea can be any one of
four elements, Transferred Malice, Recklessness, Gross Negligence or Intention. It is
crimes of specific intent such as murder which require a Mens Rea of either direct or
oblique intent. Direct intent is where the defendant desires the consequences and it
is his or her purpose to achieve these consequences. An example of direct intent
would be September 11th 2001. Oblique intent is where the defendant doesn’t desire
the consequences but it is a virtually certain result of their actions. It is this area of
intention that has caused problems and confusion in the law.

In order to prove intention the jury must decide how foreseeable the defendant’s
actions were to cause the consequences. There is however two measures used for
foreseeability, highly probable and virtually certain. Unfortunately it has not been
made clear which measure to follow. The current state of the law on intention was
expressed by the House of Lords in the case of R v Woollin 1998. This case modified
an earlier direction made by the Court of Appeal in the case of R v Nedrick. In
Woollin the law lords expressed that intention can only be established if the
defendant knew that the consequences would be a virtually certain result of his
actions. However this has not always been the case.

The first major case in determining intention was the case of DPP v Hyam 1975
where the defendant poured petrol through a woman’s letter box and the set fire to
it. Due to Hyam’s actions two children died. The defendant claimed that she had only
intended to frighten the woman. Judges in this case gave the impression that
intention could be established if it was proved that the defendant foresaw the results
of his actions as being highly probable.

The question of what constitutes intention appeared again in the case of Moloney
1985. In this case Lord Bridge stated that if the consequence was a natural
consequence of the defendants act and if the defendant foresaw that his actions
would almost certainly cause the consequence then it is clear that the defendant
intended the consequence. Due to this change confusion was caused.

The guidelines laid down in Moloney were required just one year later in the case of
R v Hancock and Shankland 1986. This case concerned striking miners who were
angry with another miner for going back to work. In trying to frighten the miner they
killed a taxi driver. The trial judge, Lord Scarman, said that the Moloney guidelines
were misleading and requires a reference to probability. He also said that it is for the
jury to decide whether intention existed after looking at all the evidence available.
This case also established that the Moloney guidelines should no longer be used and
the jury should be directed that if the defendant foresaw the consequences as being
highly probable result of his actions then the consequence was intended by the
defendant.
However in the same year this matter reappeared again in the case of R v Nedrick
and again instead of following precedent, Lord Lane directed that if the defendant
recognised that death or serious injury would be a virtual certain result of his actions
then the defendant intended to kill or cause serious bodily harm even though he
may not have had any desire to achieve that result. Naturally this caused more
confusion as not only has the law changed again the facts of this case were almost
identical to those in Hyam yet both cases produced different results. Also the case of
Moloney produced the same result of virtually certain but was said to be incorrect
and yet in this case virtually certain is being used again.

This set of cases continued to cause confusion over this area of law and the case of R
v Walker and Hayles 1990 added to this confusion. In this case a conviction of
attempted murder was upheld on the grounds that the death of the victim was a
highly probable result of the defendant’s actions. This again cause more confusion
because on two occasions prior to this case the highly probable definition was
accused of being wrong however in this case highly probable was used again. This
produces uncertainty in the law which is not desired.

It was the case of R v Woollin 1996 which changed the law once more. Instead of
jurors being directed that a highly probable result of the defendants actions would
result in intention, the jury was directed that intention could be found if death or
serious bodily harm was a virtually certain result of the defendants actions and that
the defendant realised that this was the case.

This issue of intention resurfaced in 2003 in the case of Mathews and Alleyne.
However this time the Court of Appeal followed the previous decision made in
Woollin as being that the jury can infer intention if the defendant foresaw the
consequences of his actions as being a virtually certain result. This is now the current
law on intention and by following the previous decision made in Woollin has made
the law more certain.

Section eight of the Criminal Justice Act 1967 states that a court or jury shall not be
bound to infer that the defendant intended or foresaw a result of his actions as being
a natural and probable consequence of those actions however, they shall decide
whether the defendant did intend or foresee that result from reference to all
evidence available.

The major problem with this area of law is that intention is a subjective concept and
is entirely dependant on what was going through the defendants mind at the time of
the offence. Also unless you are dealing with direct intent reference must be made to
what the defendant foresaw would happen as a result of his actions. It is only if the
defendant foresaw death or really serious injury as virtually certain to happen that a
jury is entitled to find that the defendant intended it to happen, phrases such as
highly probable to not satisfy this standard.
The Law Commission has proposed a definition in clause 18(b) in the Draft Criminal
Code Bill 1981 which states that a person acts intentionally with respect to a result
when it is his purpose to cause it or although it is not his purpose to cause that
result, he is aware that it would occur in the ordinary course of events if he were to
succeed in his purpose of causing some other result. Also in the draft Offences
Against the Person Bill 1998 intention is defined in similar terms. The defendant acts
intentionally if a result was his purpose or where it was not his purpose the
defendant knew that it would occur in the ordinary course of events if he were to
succeed in his purpose of causing some other result. This supports the Law
Commission’s view that both direct and oblique intent should continue to satisfy the
legal requirements of intention.

In conclusion, the explanation of foresight of consequences in Nedrick, where

appropriate, are relevant to all offences and not just murder. The Criminal Law now
states that a consequence is intended when it is the purpose of the accused. A court
or jury may also infer that a consequence is intended, though it is not desired, when
the consequence is a virtually certain result of the act and when the accused knows
that it is a virtually certain consequence. This area of law has proved to be confusing
to both juries and judges due to the uncertainty of precedent. As the law stands
today it appears to have reached a decision of virtually certain but as before is not
certain to remain.