07 - Chapter 2

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Chapter - II
CONCEPT OF MENS REA IN CRIMINAL LAW
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| . Chapter - II
CONCEPT OF MENS REA IN CRIMINAL LAW
2.1 History and Development
2.2 Intention
2.3 Subjectivism, Autonomy and Intention
2.4 Knowledge
2.5 Recklessness
2.6 Objectivism
2.7 Revival of Subjectivism
2.8 Negligence
2.9 Negligence and Unlawful Acts
2.10 General Concept of Mens rea and IRC
‘Presumption of Innocence’ and the maxim actus non facit reum nisi
mens sit rea are considered to be the fundamental tenets of the Criminal justice
system in common law countries. Therefore, the study of the English Criminal
Justice System requires a thorough examination of the two concepts, which
have more constitutional and human rights relevance than any other criminal
justice concepts. These concepts have their origin in the period of history when
the accusatorial system of criminal trial had its sway. These were evolved with
a view to afford protection to the accused. This fact becomes evident when one
examines the history of criminal procedure in England.
2.1 History and Development:
In earlier times, there was no organised system to prove the guilt. The
guilt of a person} was determined by some barbaric methods like trial by ordeal,
trial by poison etc. These methods of determining guilt gave way to early
private prosecution where the aggrieved themselves approached the court for
prosecuting criminals. However, later at a stage when this process was misused
Chapter-Two Concept ofMens Rea in Criminal Law
widely, the Kirig, as the custodian of societal interests began to bring the cases
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before the Colurt after investigation. This marked the origin of public
prosecution in England138. It is from this point of time onwards that the need
for protection of accused was strongly felt. The organised power of the state
fighting on one side for the prosecution safeguarding public interest against the
meek accused on the other side made the system apparently favourable to the
prosecution and this situation made the court to go for safeguards for the
accused to strike a balance. The result was the development of concepts of
mens rea, presumption of innocence, burden of proof, proof beyond doubt, etc.
Of these, it seems the maxim actus non facit reum nisi mens sit rea
assumes importance and assures maximum protection to the accused. This
cardinal rule of criminal law means that an act does not constitute a crime
unless done with a guilty intent. In Brend v. Wood139, Lord Goddard, CJ
observed,
“It is of the utmost importance for the protection of the liberty of

the subject that a court should always bear in mind that, unless a
statute either clearly or by necessary implication rules out mens
rea as a constituent part of a crime, the court should not find a
man guilty of an offence against the criminal law unless he has a
guilty mind”
Thus, the modem concept of crime composes of two elements viz. actus
reus and mens rea. The element actus reus refers to an outward circumstance
including so much mental element, the volitional element, as included in the
definition of the Crime140. The other element mens rea mean a ‘guilty mind’. It
is only when-ac/us reus and mens rea coincide an act becomes an offence. The
138 Patric Devlin, (I960)' Criminal Prosecution in England, Oxford University Press; Ch.l; See also
Abraham. S. Goldstein, (1960) "The State and the accused; Balance of Advantage in Criminal
Procedure", 69 Yale LJ. 1149, at pp.1149-1150
139 (1946) 62 TLR 462, at p.463.
140 G.Williams,(1961) Criminal Law, The General Part, 2nd Ed.Steven and Sons, London, p.22
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Chapter-Two i Concept ofMem Rea in Criminal Law
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importance of the existence of a culpable mental state has been recognized by
the English Court even before this century. To quote Justice Cave,141
“It is the general principle of our criminal law that there must be
an essential ingredient in a criminal offence some blameworthy
condition of mind. Sometimes it is negligence, sometimes guilty
knowledge but as a general rule there must be something of that
kind which is designated by the expression ‘mens rea’.”
At first, the act alone was considered necessary to fix criminal

responsibility. In other words, it was not necessary to prove that die act was
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done with ‘intent’ for punishing the person who committed the act. English
Criminal Law followed the principle of absolute responsibility and it
necessitated on many occasions the exercise of pardoning power of the King.
However, this did not mean that there was a complete discarding of mental
element. The very nature of the majority of definitions of crime rendered it
impossible to commit them without criminal intention and this was taken into
consideration while determining punishment
However, at the end of the twelfth Century, the influence of Roman law
and Canon Law were very much evident on English Law, The grafting of
Roman notions doles and culpa, into criminal law required a careful
consideration of mental element in crime. This was strengthened by the
insistence upon moral guilt in Camion Law. These new ideas were merged in
the maxim reum non facit nisi mens rea found in Legis of Henry I, which was
taken from a sermon by St. Augustine concerning description of pequry. This
maxim ultimately appeared in ‘Third Institutes’ of Coke as actus non facit rum
nisi mens sit rea. Thus, an intentional element in crime was developed on the
belief that crime will always depend on deploying ethico-psychological
concepts.142 The Church had much influence on the development of this part of
law for many a reason. First, it preached the importance of spiritual values and
mental states to a wide audience. Physical misconduct was significant only
141 Chisholm v. Doulton (1889), 22 QBD 736.

142 F.B.Sayre, Supra,n.21
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because it manjfested spiritual failure. The inner weakness was the essence of
moral wrong. 3 Second, clerics were influential in the administration of
government anti governmental policy as they were among the few who could
read and write and because of the political power of the Church. Third, the
Church had its own courts for trying clergy. In these courts, new offences were
developed that put new ideas about the importance of mental state into criminal
law. While Christian thought on mens rea had a dominant influence over its
development in English law, similar concepts are found in nearly all criminal
laws, often without a history of Christian influence. .The cross-cultural presence
of concepts like mens rea provide some evidence that the notion of moral
blameworthiness expressed by the broad conception of mens rea arises from
shared human intuitions of justice and would have developed in English law
through some other means, if not through the spread of Christian thought.
Once adopted as a basic principle of criminal law, the legal meaning of

mens rea continued to evolve. This development of moral content in criminal
law made it a more effective instrument in social regulation because it satisfied
the ethical belief of the people that unless a man is at fault he should not be
punished at all. This development reached up to a stage where judges were
looking only fcjr the mental element for punishing even in the absence of any
physical act.14fHowever, this was done only in cases of high treason.
Nevertheless, in any other forms of felony, a completed act was required
together with an intention to do the crime. Even then, what was necessary for
criminality was only a general blameworthiness, a concept inherently vague.
. The medieval period witnessed the rise and fall of the concept, ‘motive’
in evaluating the guilt of criminals. This was mostly done not as part of
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For example, "Whoever looketh on a woman to lust after her hath committed adultery with her
already In his heart"
Mathews, 5:28, King James Bible, Cambridge Edition available at
http://biblehub.eom/kjv/mark/l.htm Accessed on 2/07/2013atll.43am.
Sir William Holdsworth, (1942) A History of English Law, Vol. Ill, 5th Ed, Sweet and Maxwell at
p.373.
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Chapter-Two Concept ofMem Rea in Criminal Law
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substantive law but as an aid in the just administration of criminal law. Jerome
Hall describes this development thus,
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“a tenable assertion would be that the trend has been from the
complete neglect of motives to its recognition as an essential, not
in substantive law, but a just administration of that law”145.
The meaning of ‘motive’ slowly was transformed from general moral

blameworthiness to motive for a crime which in turn gave place to the concepts
of intention. Thus, the essential meaning of mens rea, i.e, the intentional doing
of a wrongful act, persisted for centuries, though the peripheral meaning was
changing with the development of the various ideas and doctrines such as its
distinction from accident and negligence, evolution of the law on insanity,
necessity, coercion, mistake, etc.
This development of mens rea comes now to a stage where it is very

difficult to ascertain what precisely the meaning of the concept is. Now we
understand the concept of mens rea in two ways. One, the negative way of
thinking, a person above the age of culpability has done a forbidden act without
reasonable excuse and after having thought of it. The other way of thinking
prevalent now is the positive way. It tries to dissect the concept of mens rea
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and study its component elements. The second method of study of mens rea
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recognises threb states of mind viz., intention, recklessness and negligence.

Earlier writers however dealt with only two concepts such as intention and
negligence as part of mens rea.146 They treated recklessness as ‘gross
negligence’. This study by splitting the components has made the concept
- vague and ambiguous rather than achieving certainty. The addition of
‘recklessness’ with the earlier elements like intention and negligence has made
it more confusing. However, this method helps us to understand the concept of
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exclusion of mens rea and the concept of strict liability in a better way. The
modem statutes generally do not rule out mens rea in toto but exclude some
Jerome Hall,(1960) General Principles of Criminal Law, The Bobbs & Mernl Company Inc. at p.83
Brett P, Supra, n.90.
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part of it. Therefore, this kind of an analytical approach paves way for a clearer
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understanding of formal strict liability and its constitutional and human rights
relevance. :
2.2 Intention147
On an analysis of the element intention embedded in the meaning of

mens rea, one finds it difficult to say, categorically, what it really means. The
term intention is often confused with words like desire, motive, purpose etc.
Therefore, our first task is to distinguish between these words. The changing
meaning of the! word ‘desire’ makes it inappropriate to be used as a synonym
for ‘intention’. It may be used to indicate a mental state not much positive than
a preference that just outweighs indifference. Sometimes a person may desire a
result though there is no possibility of occurrence of that result due to his
action. For example, if a person beats another one with a small stick with which
he cannot kill a(ny one, with a desire to kill him, he actually does not intend to
kill. In this case, though the first person desired the death of the second one, we
cannot attribute liability on the first person. Since criminal law is concerned
with the attribution of liability for the consequence of action, an ascription of
intention in a criminal case must refer to mental attitude of the accused to the
results of his conduct.148 Therefore, what is material in criminal law is that the
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accused must cbntemplate the causation of the specified result in the world by
147 Under the Indian Penal Code, apart from offences, which require intention as necessary mens
rea, the mens rea words like dishonestly, fraudulently, counterfeit, etc, are defined in terms of
intention.
For example,
S24: Whoever jdoes anything with the intention of causing wrongful gain to one person or
wrongful loss to another person, is said to do that thing dishonestly
S.25 Fraudulently. - A person is said to do a thing fraudulently if he does that thing if he does
that thing with intend to defraud but not otherwise
S.28Counterfeit. - A person is said to counterfeit who causes one thing to resemble another
thing, intending by means of that resemblance to practise deception, or knowing it to be likely
that deception will thereby be practiced
148 Richard Buxton Q.C.(1988) "Some Simple Thoughts on Intention", Crim.LRA&5, at p.493.
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his actions, and not merely be favourably inclined towards the occurrence of
that result.149
Now, as we turn to the concept of motive we can notice that the term
motive is much wider than ‘intention’. Motive is the reason or ground of any
conduct. The reference of motive is to the acts.. Whether a person is responsible
for his motive or not is difficult to ascertain.150 The question to be decided in
criminal law is whether the person has chosen to do something, which is
forbidden. Surely, that cannot be termed as a motive. Motive usually does not
affect liability. If one causes actus reus with mens rea, he is guilty of crime and
it is entirely irrelevant to his guilt that he had good motive151. For example, if a
mother kills here imbecile and suffering child out of motive of compassion, she
is as guilty of murder as is the man who kills for gain.152 No doubt, motive can
be an indicator of intention, but it is not true to say that motive always leads to
intention .The intention is rather to be gathered from the act and consequences.
Sometimes a person may have good motives. However, his intention may be
wrong. For example, X overhears a conspiracy between A and B for killing C.
To save C from danger, X locks A and B in a room. Here in both examples, the
motive behind the act is good but intention is bad and therefore a fit subject for
punishment.
Therefore, from the above discussion we may conclude that the term
‘intention’ has an entirely different meaning from the words such as desire and
motive. One may say an act is intended if the actor has done it with the purpose
of doing so. Thus, the word ‘intention’ leads to object to be achieved. Intention
1,9 Id at p. 495.
150 Hall, Supra, n. 145 at pp.89-90.
151 Smith & Hogan, (1992) Criminal Law, Butter worth & Co. (Publishers) Ltd. 7th Ed., at p.79.
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refers to the consequences, which directly follow the act. However, the word
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intention is used in the wider sense by the court and academicians.

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Before Hyam v. D.P.P, the view of the court was that a person is said to
have intended something if the harm resulted was the natural and the probable
one.155 However, a slight deviation may be noticed from the above stand in
Hyam v. D.P.P156 where the court went to the extent of saying that a person has
done something intentionally if he knew that it was highly probable that serious
bodily harm is the result of his act. Lord Bridge of Harwich however declined
to accept foresight of consequences at par with intention for murder and
pointed out that foresight of consequences can only form evidence from which
intention can be inferred. 157There are several reasons why the standard
approach is preferable to that of Hailsham. First, approach of Hailsham would

eliminate the distinction between intent and recklessness. For many a jurist,
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this distinction |is essential to be retained. If intent to expose a person to a risk
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of death were equivalent to intention to kill, then if at any time an accused
153 R.C.Nigam,(1965) Criminal Law, Asia Publishing House, at p.75

154 For example, see JWC Turner, (1964) Russell on Crime, 12th Ed, Universal Publications Co (Pvt) Ltd
at p.184.
"A person can be taken to intend a consequence that follow under his nose from what he
continues to do', and the law should be the same where he is aware that a consequence in the
future is the certain or practically certain result of what he does".
See also G.Williams, (1987) "Oblique Intention", CU 417.
155 D.P.P. v. Smith [1961] AC 290. Smith tried to evade a police officer whom he feared would
discover stolen goods in his vehicle by driving away, whereupon the officer clung to the outside
of the vehicle. He drove in a "zigzag pattern" to try to shake the officer, and the latter was
thrown from the vehicle and killed. The question was whether knowledge of a high risk of death
or bodily injury Is sufficient for the malice aforethought required for murder. The Lords thought it
was and held that It was sufficient that Smith intended to do something unlawful, aware that the
act was likely to result in death or serious bodily injury
156 [1975] AC 55. Mrs. Hyam had killed the child of her rival by stuffing kerosene-soaked newspaper
through the letterbox and lighting it. She said that her intention was to scare the woman and her
children into leaving town and she did not intend to kill them. The prosecution relied on an
earlier decision [where the Lords had readily accepted that malice aforethought could be satisfied
by awareness of a risk of death or serious bodily injury. They argued that malice aforethought did
not require intent. The defence argued for the more traditional position that the mens rea for
murder is intent. While Lord Hailsham agreed with the defence's view of malice aforethought, he
did not agree that it would exonerate Mrs. Hyam. Mrs. Hyam after all did intend to expose her
victim to a risk of serious bodily harm or death, and Lord Hailsham thought it sufficient to satisfy
malice aforethought under a direct intent standard.
157 R v. Moloney [1985] AC 905; [1985] 1 All ER 1025
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Chapter-Two j Concept ofMens Rea in Criminal Law
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recklessly riskejd the death of another, he would be guilty of murder if death

resulted. Secorjd, it is not clear what would happen to knowledge under
approach of Hailsham. This and the subsequent decision of the House of Lords
in R v. Hancock and Shankland158 considerably narrowed the mental element
required for murder, i.e., intention. The House of Lords tried to reconcile the
view in both Moloney159 and Hancock and Shankland in Nedrick.160 It opined
that due to the act of the accused if it was sure that death or serious bodily harm
was a virtual certainty and the accused appreciated the possibility of such a risk
then he can be taken to have the intention161. This series of decisions on the
meaning of intention culminated in Woollin, 162which adopted the following
guidance in Nedrick as appropriate,
“...if the jury are satisfied that at the material time the defendant
recognised that death or serious harm would be virtually certain
(barring some unforeseen intervention) to result from his
voluntary act, then that is a fact from which they may find it easy
to infer that he intended to kill or do serious bodily harm, even
though he may not have had any desire to achieve that result.”
Thus, Woollin set the conflict regarding the interpretation of intention at rest
accepting virtual certainty as equivalent to intention.
If intention can be considered as the most blameworthy state of mind,

the moral equation of intention with a certain foreseen outcome shows that the
degree of probability of the foreseen risk is also important. It distinguishes the
culpability displayed by someone who appreciated an outcome as virtually
certain from that of one who foresaw that it was a possible outcome. Indeed,
criticism of the pioneering judgment in D.P.P v. Hyam can be attributed to this
158 [1986] AC 453, [1986] 1 All ER 641

159 Supra,n.157 I
160 [1986] 3 All ERICA,
161 This decision hgs been appreciated by many academics and jurists. See,Smith,J C, In his Article in
[1986]Crim.LR742-744,Williams,Glanville,(1989) "The Mens rea for Murder: Leave It
Alone",105LQR387,Ashworth, Andrew,(1995principles of Criminal Law,2nd Ed, Oxford University
Press,p.172
1K R v Woollin [1998] 4 All ER 103.
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principle of subjective liability. Lord Hailsham held that both foresight and the
degree of probability of the forbidden consequences occurring could be
evidence from which we can draw a deduction that there had been intention.
According to subjectivists, if ‘foresight of a probability of serious harm or
death’ is an evidence of intention, then, there is little or no distinction between
the culpability of recklessness and intention.
2.3 Subjectivism, Autonomy and Intention:
Subjectivism relies on the notion that individuals are culpable for harm
only where they were aware of the risk of causing that harm at the material
time and were able to avoid it. This means that it is important that the accused
voluntarily caused the outcome, either by consciously running the risk of that
outcome or by actually intending it. Therefore, one of the most important
principles to subjectivism -is - that of individual autonomy. This principle
requires that every person be treated as an autonomous agent capable of
choosing his own acts and omissions. Thus, he can be held responsible for that
behaviour. Ashworth claims that this requires the law to penalise an individual
only for conduct he has chosen to do.163 Freedom of choice is of utmost
importance to a subjectivist when labelling an individual morally culpable for
his conduct. Someone who has no opportunity to abstain from his actions is not
considered blameworthy for the outcome at all. The autonomy principle tells us
whether an individual can be considered morally culpable for the harm he
causes. However, it does not tell us how culpable he is.164 To resolve this
problem, subjectivism adopts principle of correspondence between an unlawful
act or consequence and the mens rea required for the full offence. Campel and
Ashworth explain the Correspondence Principle in the following words:
163 Ashworth,(2006) Principles of Criminal Law, 5th Ed. Chapter 2.2, Oxford University Press, Oxford,;
Law Com. No. 218, 'Legislating the Criminal Code; Offences against the Person and General
Principles' (1993), Cm. 237 0 para. 14.14
164 Horder,[1995] "A Critique of the Correspondence Principle in Criminal Law",Cr/m.L/?.759 at p.760
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“If the offence is defined in terms of certain consequences and

certain circumstances, the mental element ought to correspond
with that by referring to .those consequences or circumstances.”
The correspondence principle actually provides a measure of the level of

blameworthiness.166The greater the harm contemplated or intended by the
wrongdoer, the more morally culpable he can be. Hence, most of the criminal
charges are justified.
Here, it is useful to note the two contexts in which the term ‘intention’ is
used. The first is where an individual acts intentionally in that his actions are
voluntary. If person voluntarily throws a brick, irrespective of any argument as
to what he thinks would happen because of him throwing it, we can say he
intends to do so.167 This form of intention, i.e., ‘ action-intention’, causes no
definitional problems because it can be very easily inferred from the actions of
the accused. However, it is not relevant to the subjective hierarchy and
therefore is not pertinent here. The second meaning of intention demonstrates
the reason a subjectivist considers intention more wicked than recklessness.
Here, intention is used legally and linguistically in a similar way to
recklessness, as a way of tying our actions to the consequences. It describes the
purpose of our actions. For example, if a person throws a brick in order to hit
another person, then we would say that he intends to hit that person with the
brick. This is ‘consequence-intention’. If defined strictly, consequence-
intention would bear a meaning very similar to ‘purpose’, as can be observed in
the case of R v. Steane}^The accused assisted the enemy during wartime, but
165 Campbell and Ashworth, (1991) "Recklessness in assault and in general?" 107 L.Q.R. 187 at p.192
166 Horder,Supra,n.l64
167 Section 1(a) of The Sexual Offences Act 2003 is an example of this use of intention. It refers to
intentional penetration, as in the action itself must be intended.
168 [1947] 1 KB 997. The appellant was a British radio announcer who was living in Germany during
World War II. With his family under threat, he was forced to broadcast on the radio for the Nazis.
After the war, when he returned to Britain, he was charged with "doing acts likely to help the
enemy with the intent to assist the enemy." He was convicted at trial, which he appealed. The
court held that this Is a very clear decision. The specific form of intention that is required for
conviction is explained in the crime itself, and this must be respected. Normally, merely the
intent to broadcast would have sufficed this crime, however the wording requires there to be
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successfully claimed that his intentions were not to assist the enemy, but rather
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to protect his family from persecution. The state of mind identified by this
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definition of intention is clearly blameworthy though it is not very easy to
relate it to the reasons for blaming a reckless person. However, since long the
law has recognised that this definition is far too narrow. It excludes a mind that
can be considered to have displayed an equally high degree of moral
blameworthiness as in the case of a man who blows up an aeroplane mid-flight
in order to claim insurance.169 Subjectivist principles consider moral culpability
as very closely related to foresight of the consequences of actions. The degree
of culpability an individual displayed is determined according to what he
foresaw and how likely he foresaw it as being. As the degree of probability of
foreseen risk is more, it amounts to knowledge.
2.4 Knowledge170
Knowledge is the mental cognition of a thing or state of affair. A person

who has no knowledge cannot intend something. In the same way, if a person
knows something and goes on to take it, the only inference that can be gathered
is that, he had intention or he is reckless. In most of the cases, knowledge and
reason to believe are treated as equivalent to intention. Every man is supposed
to intend the natural consequence of his act. Sometimes it may be certain and
sometimes it may be probable. When it is certain we may call it as knowledge.
When it is, only a probability we call it as belief. When degree of probability is
more it is equivalent to knowledge. It is very difficult to distinguish between
intention and knowledge. In most of the cases, knowledge indicates intention.
intent to assist the enemy for a conviction. There was obviously no intent to assist the enemy
here. He was forced and threatened into doing it. Therefore, the crime is not proven and the
accused must be acquitted. There can be no presumption that merely doing the action implied
his intent to help the enemy.
G. Williams, supra, n.154 at p.423.Wllliams gives the example of a person blowing an aeroplane
to get the insurance amount. It is not his direct intention to kill the passengers and crew, but
rather his 'intention' is to gain the insurance money. However, he knew that, he would almost
certainly cause the deaths of the passengers and crew by destroying the plane and accepted the
inevitability of this outcome. Therefore, he is just as morally blameworthy as one who blew up
the plane with the intent to cause death.
See, Ssl67,177,182,183,197,199,201,202,203,212,216A, 235, etc, of the Indian Penal Code.
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There may be cases where a man is having knowledge of risk but he may not
be intending it but may be reckless. Lord Devlin observes that there can be
three degrees of knowledge, which are known to criminal law,
(1) The actual knowledge, which may be inferred from the conduct of the
accused,
(2) Where the person realises the risk that a surrounding circumstance may
exist and deliberately refrain from making inquiries, i.e. wilful
blindness, which can be treated as a specious of subjective recklessness,
(3) Where a person did not know the surrounding circumstances but ought
to have known that a surrounding circumstance exists171.
No doubt, the first case can be equated with intention. However, in the
second and third case there is no actual knowledge. Therefore, to understand
what amounts to a culpable mental state we should know the concept of
recklessness and negligence. Thus, we come to the discussion of recklessness
and negligence.
2.5 Recklessness:
Roper v. Taylors Central Garages (Exeter) Ltd (1951) 2TLR284 at p.288. per Lord Devlin,
'There are, I think, three degrees of knowledge which it may be relevant to consider in cases of
this kind. The first is actual knowledge, which the justices may find because they infer it from the
nature of the act done, for no man can prove the state of another man's mind; and they may find
it even if the accused gives evidence to the contrary. They may say, 'We do not believe him; we
think that that was his state of mind.' They may feel that the evidence falls short of that, and if
they do they have then to consider what might be described as knowledge of the second degree;
whether the accused was, as it has been called, shutting his eyes to an obvious means of
knowledge. Various expressions have been used to describe that state of mind. I do not think it
necessary to look further, certainly not in cases of this type, than the phrase which Lord Hewart,
C.J., used in a case under this section, Evans v. Dell (1937) 53 The Times L.R. 310, where he said
(at p. 313);'... the respondent deliberately refrained from making inquiries the results of which
he might not care to have.'
The third kind of knowledge is what is generally known in the law as constructive knowledge: it is
what is compassed by the words 'ought to have known 'in the phrase 'knew or ought to have
known.' It does not mean actual knowledge at all; it means that the accused had in effect the
means of knowledge. When, therefore, the case of the prosecution is that the accused fails to
make what they think were reasonable inquiries it is, I think, incumbent on them to make it plain
which of the two things they are saying. There is a vast distinction between a state of mind which
consists of deliberately refraining from making Inquiries, the result of which the person does not
care to have, and a state of mind which is merely neglecting to make such inquiries as a
reasonable and prudent person would make."
See also. Green v. Burnett [1955] 1 Q.B. 78, Gray's Haulage Co. Ltd. v. Arnold [1966] 1 W.L.R. 536.
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As per the positive view of understanding mens rea, the second state of
mind, which is relevant in criminal law, is ‘recklessness’. It is now settled in
English Criminal Law, that for fixing criminal responsibility either ‘intention’
or ‘recklessness’ is sufficient It seems at one stage even the judges were
confused with the terms ‘intention’ and ‘recklessness’.172
As Glanville Williams put it, the concept of recklessness was developed

as a via media between intention and negligence in fixing criminal
responsibility. He views that the concepts of intention created responsibility of
a wide nature and that of inadvertent negligence to a narrower extent.
Therefore, the need for an intermediate concept has arisen and ‘recklessness’ is
the offshoot of such a need.173
The term recklessness means a form of indifference to the realised

possible risk and consequences of one’s action. Recklessness is the frame of
mind in which we behave or are likely to behave.174To be clear, to become
reckless some kind of positive attitude of mind is necessary. A man who is in a
blank state of mind cannot be said to be reckless. As Alan R White points put
recklessness is that which can be felt.175 Therefore, a man, while aiming at an
end, which he desires to attain, consciously takes the risk of bringing about
some other results also.176 Now, the English courts have recognised two types
of recklessness for fixing criminal responsibility. The first one is the subjective
recklessness, propounded in Cunningham,177fixing criminal responsibility on
an accused who has foreseen that the particular kind of harm might be done and
yet has gone on to take the risk of it. The other one is objective recklessness or
Caldwell -Lawrence form of recklessness, which imposes responsibility on
172 JWC Turner, Supra,n.154

173 G. Williams, (1962) "Carelessness, Indifference and Recklessness: Two Replies", 25 Mod. LRev 55.
174 Alan R. White, (1961) "Carelessness, Indifference and Recklessness", 24 Mod. LRev. 592.
175 Ibid
176 G.Williams, Supra, n.140, Chapter 2, p.42.
177 (1957) 2 QB 396; In this case, Cunningham tore gas meter from the wall of the Cellar of an
unoccupied house to steal the money in it. He left the gas gushing out. It seeped into another
house where a person inhaled it and died subsequently.
178 [1982] UKHL1,[1982] AC 341
64
a person who has not contemplated that there was a danger. R v Caldwellm
was a case of self-induced intoxication. The accused, having a grievance
against the owner of the hotel where he worked, got very drunk and set fire to
the hotel where guests were living at the time. He was indicted upon two
counts of arson. The first and more serious count was laid under section 1(2) of
the Criminal Damage Act 1971, the second count under section 1(1). He
pleaded guilty to the second count but contested the first on the ground that he
had been so drunk at the time that the thought there might be people in the
hotel had never crossed his mind. The Court of Appeal set his conviction on
count 1 aside. However, it certified a question for the consideration of House of
Lords, thus,
“Whether evidence of self-induced intoxication can be relevant to

the following questions - (a) Whether the defendant intended to
endanger the life of another; and (b) Whether the defendant was
reckless as to whether the life of another would be endangered,
within the meaning of section l(2)(b) of the Criminal Damage
Act 1971.”
In House of Lords, Lord Diplock discounted Professor Kenny’s

statement of the law approved in R v Cunningham about the meaning of
“maliciously” in the 1861 Act as having no bearing on the meaning of
“reckless” in the 1971 Act.183He declared that a man whose mind was affected
[1982] AC510
Supra, n.178
J. W. C. Turner(1952) on Kenny's Outlines of Criminal Law, 16th Ed,P.186, stated,
"In any statutory definition of a crime, malice must be taken not in the old vague sense of
wickedness in general but as requiring either (1) An actual intention to do the particular kind
of harm that in fact was done; or (2) recklessness as to whether such harm should occur or
not (i.e., the accused has foreseen that the particular kind of harm might be done and yet has
gone on to take the risk of it). It is neither limited to nor does it indeed require any ill will
towards 'the person injured"
The same words cannot be found in the first edition of the work.See,Kenny, Outlines of
Criminal Law, 1st Ed,The MacMillan Company,London,P.159{ as Revised and Adapted for
American Scholars by James H. Webbm 1907).
Supra,n.177
Supro,n.l78 at p. 351 Lord Keith of Kinkel and Lord Roskiil agreed, but Lord Wilberforce and Lord
Edmund-Davies dissented
65
by rage, excitement or drink and fail to give his mind to the risk is equally
blameworthy with a man whose mind was similarly affected but who had
appreciated that there was a risk but did not appreciate the seriousness of the
risk or trust that good luck would prevent the risk occurring.184
To decide whether a person had been reckless as to a harmful

consequence of a particular kind that would result from his act it was necessary
to consider the mind of “the ordinary prudent individual”.185Lord Diplock also
added -
“In my opinion, a person charged with an offence under section

1(1) of the Criminal Damage Act 1971 is ‘reckless as to whether
any such property would be destroyed or damaged’ if (1) he does
an act which in fact creates an obvious risk that property will be
destroyed or damaged and (2) when he does the act he either has
not given any thought to the possibility of there being any such
risk or has recognised that there was some risk involved and has
nonetheless gone on to do it. That would be a proper direction to
the jury; cases in the Court of Appeal which held otherwise
should be regarded as overruled.”186
Their Lordship concluded that the unawareness of the risk of

endangering the lives of hotel residents owing to seif-induced intoxication, was
no defence if that risk would have been obvious to him had he been sober. The
evidence of self-induced intoxication was relevant to a charge based on
intention but not to a charge based on recklessness. However, Lord Edmund-
Davies expressed a strong and profound disagreement with dismissal of
Kenny’s statement by Lord Diplock. According to his lordship it was accurate
not only in respect of the law as it stood in 1902 but also as it has been applied
in a number of cases thereafter, both in the United Kingdom and in other
countries where the common law prevails. He observed:
“In the absence of exculpatory factors, the defendant’s state of

mind is therefore all-important where recklessness is an element
Id at p.354
185
Ibid
186
Ibid
66
in the offence charged, and section 8 of the Criminal Justice Act

1967, has laid down that:
“A court or jury, in determining whether a person has committed
an offence? (a) shall not be bound in law to infer that he intended
or foresaw a result of his actions by reason only of its being a
natural and probable consequence of those actions; but (b) shall
decide whether he did intend or foresee that result by reference to
all the evidence, drawing such inferences from the evidence as
appear proper in the circumstances.”187
In R v Lawrence (Stephen),m the accused was riding a motor cycle

along an urban street after nightfall. He collided with and killed a pedestrian.
He was convicted under sectionl of the Road Traffic Act 1972, which made it
an offence to cause the death of another person by driving a motor vehicle on a
road recklessly. His appeal had succeeded on the ground of an inadequate
direction to the jury. The issue on appeal was concerning the mental element in
a charge of reckless driving. Lord Hailsham agreeing with Lord Diplock and
the majority in Caldwellm held that recklessness as a state of mind stops short
of deliberate intention and goes beyond mere inadvertence. Lord Diplock
applied essentially the same test of “ordinary prudent individual” as laid down
in Caldwell190and formulated an appropriate jury direction to the same effect191
However, he added:
“It is for the jury to decide whether the risk created by the manner
in which the vehicle was being driven was both obvious and
serious and, in deciding this, they may apply the standard of the
ordinary prudent motorist as represented by themselves.
If satisfied that an obvious and serious risk was created by the
manner of the defendant’s driving, the jury are entitled to infer
that he was in one or other of the states of mind required to
constitute the offence and will probably do so; but regard must be
Id at p. 358
Supra,n.179 (The decision came on the same day as R v Caldwell [1982] AC 341, though only two
members, Lord Diplock and Lord Roskill, were party to both decisions.)
Supra, n.178
Supra, n.178, Lord Fraser of Tullybelton, Lord Roskill and Lord Bridge of Harwich agreed with Lord
Hailsham and Lord Diplock.
67
Chapter—Two Concept ofMem Rea in Criminal Law
given to any explanation he gives as to his state of mind which

may displace the inference.”192
However, one of the difficulties with regard to these tests is that if one
accused has thought of the risk and decided there was none or the risk was
negligible how die responsibility can be fixed. Here we cannot say that the man
is either reckless in subjective view or objective view. He is proceeding on a
bona fide thinking that the risk will not occur. In such a case, we cannot say
that he has the intention to bring about the risk also. Therefore, such type of
cases remains as a lacuna in the formulation of the concept of recklessness
giving ample discretion to judges to decide according to their conscience. A
sizable number of the decisions of English and other courts illustrate this fact.
The decisions in Caldwell193 and Lawrence 194were applied in R v Miller195,
subject to a qualification relevant to the facts of that case. In Elliott v C196 the
accused was a 14-year old girl of low intelligence who had entered a shed in
the early morning, poured white spirit on the floor and set it alight. The
resulting fire had flared up and destroyed the shed. She was charged under
section 1(1) of the Criminal Damage Act of 1971 and at her trial before
justices, the prosecution made plain that the charge was based not on intention
but on recklessness. The justices sought to apply the test laid down in Caldwell
but inferred that in his reference to “an obvious risk” Lord Diplock had meant a
risk, which was obvious to the particular accused. The justices acquitted the
accused because they found that the accused had given no thought, at the time,
to the possibility of there being a risk that the shed and contents would be
destroyed and this risk would not have been obvious to her or appreciated by
192
Ibid
193
Supra, n.178
194
Supra, n.179
195
[1983] 2 AC 161
196
[1983] 1WLR 939
68
her if she had thought about the matter197. On appeal, the House of Lords held
that:
“if the risk is one which would have been obvious to a reasonably
prudent person, once it has also been proved that the particular
defendant gave no thought to the possibility of there being such a
risk, it is not a defence that because of limited intelligence or
exhaustion she would not have appreciated the risk even if she
had thought about it.”198
In this case, Justice Glidewell seems to be more pragmatic. He suggests

that where no thought is given to the- risk any further inquiry necessary for
establishing guilt should prana facie be directed to the question why such
thought was not given, rather than to the purely hypothetical question of what
the particular person would have appreciated had he directed his mind to the
matter. However, Lord Justice Robert Goff felt embarrassed by the decisions in
R v Caldwell,199 R v Lawrence (Stephen)200 and R v Miller,201 expressed his
unhappiness in doing so and plainly did not consider the outcome just. In R v
n/\n
Stephen Malcolm R, the accused threw petrol bombs at the outside wall of
the bedroom of a girl who he believed had informed on him in relation to a
series of .burglaries. He admitted throwing the bombs but claimed that he had
done it to frighten the girl and without realising that if a bomb had gone
through the window, it might have killed her. He was charged with arson under
section 1(2) of the 1971 Act, based on recklessness. At trial, on behalf of the
accused it was submitted that when considering recklessness the jury could
only convict him if he did an act, which created a risk to life obvious to
someone of his age and with such of his characteristics as would, affect his
appreciation of the risk. The trial judge rejected plea. On appeal, the court held
Id at p. 945
Id at pp. 945-947
Supra, n.178
Supra, n.179
Supra, n.195
(1984) 79 Cr App R 334
69
that, if the House had wished to modify the Caldwell203pjmdp\e to take

account of the age of the accused, etc the opportunity had existed in Elliott v
C204 and it had not been taken. Although concerned at the principle it was
required to apply, the court had little doubt that on the facts of the case the
answer would have been the same even if the jury had been able to draw a
comparison with what a boy of the same age of accused would have
appreciated. In R v Reid205 the accused, convicted of causing death by reckless
driving contrary to section 1 of the Road Traffic Act 1972, asked the House to
reconsider its decision in Lawrence 206 on which the jury direction had been
based. The House unanimously affirmed its earlier decision as correct in
principle for essentially the reasons, which Lord Diplock had given.
Nevertheless, Lord Keith accepted that suggested jury direction of Lord
Diplock might call for modification or addition. He observed,
“where the driver acted under some understandable and

excusable mistake or where his capacity to appreciate risks was
adversely affected by some condition not involving fault on his
part. There may also be cases where the driver acted as he did in
a sudden dilemma created by the actions of others.”207
Lord Ackner viewed that the observation of Lord Diplock that “regard
must be given to any explanation [the accused] gives as to his state of mind
which may displace the inference” is no more than a caution. To quote,
“I read this as no more than a cautionary instruction to the jury

that, while it would be open to them at first sight to find that the
defendant was driving recklessly from the mere manner of his
driving, if it shows a clear disregard for the lives or safety of
others without any explanation for this conduct, yet before
reaching any firm conclusions they must have regard to any
Supra, n. 178
Supra, n.196
[1992] 1WLR 793
Supra, n.179
Id at p 796
70
explanation which accounts for his conduct. In short, they must

have regard to all the available evidence.”208
All the judges agreed that their observations were directed to

recklessness in the context of driving and not to recklessness in the context of
section 1 of the Criminal Damage Act 1971 or any other context. In R
v. Coles,209a 15-year-old accused was convicted under section 1(2) of the
Criminal Damage Act 1971 based on recklessness. On appeal a challenge that,
since recklessness was to be judged by the standard of the reasonable prudent
man, it followed that expert evidence of the capacity of accused to foresee the
risks, which would arise from his setting fire to hay in a bam, had been
rejected. Now, it has been a question of choice between subjective and
objective criteria to determine responsibility.
2.6 Objectivism:
Objective standards are defined by reference to likely or obvious risk

that would have been to an ordinary person, or what ordinary person would
have done in the similar situation. There are different degrees of objective
liability. Negligence can be described as a failure to foresee what an ordinary
person would have foreseen or as any deviation from the normal standard.
Gross negligence can be considered as a greater degree of objective liability in
that, the risk must have been obvious to a reasonable person or that the accused
fell far below the reasonable standard. However, in both standards, the doorsill
for criminal culpability according to subjectivism has not necessarily been
passed. Thus, the general subjectivist standpoint can be observed to be that
neither of these objective standards can show the accused to be sufficiently
morally culpable for a serious criminal offence. For example, unlike the
reckless accused, the negligent accused cannot be said to have placed his own
interests above those of his victims. Rather he is considered to have displayed a
degree of stupidity that constitutes a lesser degree of moral culpability.
208 Id at p 804
209 [1995] ICrAppR 157
71
Subjectivism is too narrow because it ignores any otiier states of mind that may
be considered to display a high degree of moral culpability. Objectivism is too
broad because, by labelling all who fall below the reasonable standard as
culpable, it takes no account of those individuals who lack the capacity to
foresee what the reasonable person would have foreseen.
2.7 Revival of Subjectivism:

7 7/3
The House of Lords reviewed these inconsistencies in Rv.G. In this
case, the appellants, aged 11 and 12 respectively, went camping without their
parents’ permission. In the early hours, they entered the back yard of the Co-op
shop in Newport Pagnell. They found bundles of newspapers, which they
opened up to read. The boys then lit some of the newspapers with a lighter they
had with them. Each of them threw some lit newspaper under a large plastic
wheelie-bin, between which and the wall of the Co-op there was another
similar wheelie-bin. The boys left the yard without putting out the burning
papers. The newspapers set fire to the first wheelie-bin and the fire spread from
it to the wheelie-bin next to the shop wall. From the second bin the fire spread
up under the overhanging eave, to the guttering and the fascia and then up into
the roof space of the shop until eventually the roof of the shop and the
adjoining buildings caught fire. The roof collapsed. Approximately million
worth of damage was caused. The appellants’ case at trial was that they
expected the newspaper fires to extinguish themselves on the concrete floor of
the yard. It is accepted that neither of them appreciated that there was any risk
whatsoever of the fire spreading in the way that it eventually did. In this case
their Lordship reconsidered the dictum laid down in Caldwell211 and
Lawrence and overruled it in the following grounds,
First, it is a salutary principle that conviction of serious crime should

depend not simply on the proof that the accused caused by act or omission, an
Supra, n.96
Supra, n.178
Supra, n.179
72
injurious result to another but that his state of mind when so acting was
culpable. According to the Court this is the meaning of the familiar rule actus
non facit reum nisi mens sit rea. The most obvious culpable state of mind is an
intention to cause the injurious result. However, knowing disregard of an
appreciated and unacceptable risk of causing an injurious result or a deliberate
closing of the mind to such risk would be readily accepted as culpable also. It is
clearly blameworthy to take an obvious and significant risk of causing injury to
another. However, it is not clearly blameworthy to do something involving a
risk of injury to another if one genuinely does not perceive the risk. Such a
person may fairly be accused of stupidity or lack of imagination. Nevertheless,
those failings should expose him neither to conviction of serious crime nor to
the risk of punishment. Secondly, this case shows, more clearly than any other
reported case after Caldwell213, that the model direction formulated by Lord
Diplock is capable of leading to obvious unfairness. Perusing the feeling of
trial judge and jury as offending sense of fairness, the court observed that the
sense of fairness of representative citizens sitting as a jury or of a smaller group
of lay justices sitting as a bench of magistrates is the bedrock on which the
administration of criminal justice is built. A law, which runs counter to that
sense, must cause concern. Thus, the court found it is neither moral nor just to
convict an accused on the strength of what someone else would have
apprehended if the accused himself had no such apprehension. Thirdly, a
plethora reasoned and outspoken criticisms of Caldwell214 expressed by
academics, judges and practitioners215 should not be ignored though a decision
Supra, n.178
Ibid
J. CSmith, [1981] "Commentary on Caldwell" Crim LR 392,at pp.393-396. Smith believes that an
objective test does not require any enquiry into the state of mind of accused and so could not be
properly described as mens rea. G.Williams observed,
"failing to think can be called a state of mind only in the sense that
unconsciousness is a state of mind; that is to say, it is an absence of a
relevant state of mind."
See, Glanville Williams,supra,n.99. Lord Edmund-Davies and Lord Wilberforce in R v Caldwell,
Robert Goff U in Elliott v C [1983] 1WLR 939 and Ackner, D in R v Stephen Malcolm R (1984) 79
Cr App R 334. S.G.Mitchel and P J Richardson (1982) The editors' commentary in the 41st Edition
of Archbold, para. 17-25, pp. 1009-1010.
73
need not be overruled or departed from simply because it meets with disfavour
in the learned journals. Nevertheless, a decision that attracts reasoned and
outspoken criticism by the leading scholars of the day, respected as authorities
in the field, must command attention. Fourthly, the majority’s interpretation of
recklessly in section 1 of the Criminal Damage Act 1971 was a
misinterpretation. If it were a misinterpretation, which offended ‘no principle’
and gave rise to ‘no injustice’, there would be strong grounds for adhering to
the misinterpretation and leaving Parliament to correct it if it chose. However,
* -
this misinterpretation is offensive to principle and is apt to cause injustice.

Therefore, the need to correct the misinterpretation is compelling. However,
Mr Newman advanced the contention that the law as declared in Caldwell was
incompatible with article 6 of the European Convention on Human Rights, the
court refused to comment as no legal argument was put forward. However, in
reality a definition of recklessness that is too subjective can allow those who
are blameworthy to avoid criminal liability and a test that is too objective can
lead to injustice without being capacity based. Therefore, a synthesis of the two
approaches is required. This could be achieved by openly developing a
capacity-based test or by introducing a form of practical indifference test.216
It is true that the introduction of recklessness has reduced the gulf

between intention and negligence to a considerable extent. However, the
subjective and objective forms of recklessness created considerable confusion
in the minds of everybody. Therefore, the search for an acceptable doctrine is
still on. This brings us to a stage where we have to analyse what negligence is
and how far it can be made the basis for fixing criminal responsibility.
2.8 Negligence217
Negligence means an inadvertent risk-taking i.e., the respondent was

completely unaware of the dangerousness of his behaviour although actually it
Crosby, C. (2008), "Recklessness - the continuing search for a definition", 72 J C L313-334.

See Ss279, 280,283,284,285,286,287,288,289,304A, 336,337,338 of the Indian Penal Code
74
was increasing the risk218. The question whether it is a state of mind is a

debatable one. For writers like Salmond, negligence is culpable carelessness
that can be brought under mens rea219. However, many academicians are of the
view that there cannot be any criminal responsibility for negligence. Hart
argues in favour of imposing responsibility for negligence. He argues that what
makes the harm caused by negligence is not the fact that the individual who
brings it about does so without realising what he was doing. It is not his mere
inadvertence or blank state of mind with regard to the consequence of his
conduct that makes him a fit subject to punishment, rather it is his failure to
examine the situation he is in before acting and to its risks while acting and so
getting into this blank state of mind. To him the important question raised by
mens rea requirement in Anglo American Law is not whether individual knew
what he was doing at the time he acted, but whether he could have by use of his
faculties avoided causing such harm.220In other words, Professor Hart wants
liability to be fastened based on the failure of the accused to use his capacity.
This argument came to be critically analysed. The antagonists of Hart’s view
argue that it is not the person’s failufe to use his faculties, which is material for
fixing criminal responsibility. It is always his choice to do something wrong
which makes him criminally responsible and in case of negligence, the person
makes no choice at all221. Learned Jurist Jerome Hall suggests that ‘negligence’
has to be excluded from the required mens rea for a crime.222
However, the present trend ofjudiciary is to accept ‘gross negligence’ as

sufficient to constitute mens rea for a crime.223 Nevertheless, that raises another
problem as to how there can be various degrees of negligence when negligence
Hall,Supra, n.145 at p.114

See footnote(c) on P.366, PJFitzgerald,{1966) Salmond on Jurisprudence, 12th Ed., Sweet
&Maxwell, London.
HLA Hart,(1968) "Negligence, mens rea and Criminal Responsibility" in HLA Hart and John
Gardner(Ed) Punishment and Responsibility: Essays in the Philosophy of Law, Clarendon Press,
Oxford,p.136
Anonymous (1972)"Negligence and the General Problem of Criminal Responsibility" 81 Yale U
949 at p.974.
Hall,Supra, n.145 at pp. 132-142.
R v. Adomako, 1994 NL J LR 936 (HL).
75
means no application of mind. JWC Turner rejects the idea that there can be
different levels of negligence. He opines that negligence cannot be the basis for
any common law offence.224 Alan R. White tries to distinguish between
recklessness and negligence by an analysis of indifference, recklessness and
negligence. He says that recklessness is a form of indifference. Where
indifference is an attitude, which may be shown towards anything, recklessness
is indifference to the realised possible risks and consequence of one’s action. A
man in such a frame of mind may be negligent or careless in his action, but
recklessness is the cause of his negligence and not a form of it. We can feel
recklessness but not negligence.225 So he favours including recklessness as a
form of mens rea but not negligence. In recklessness, the choice of a person to
do a wrong that makes him punishable. Where as in negligence there is no
choice at all. It is to be. admitted that there is an over lapping between
Caldwell226 form of recklessness and negligence. In both the cases, a person
who takes the risk of which he ought to have been aware without realising that
it exists. However, the difference is that negligence includes the case where a
person 1ms adverted to the possibility of a risk in question but unreasonably
concludes that it does not exist but not Caldwell recklessness.227Another
problem with regard to both recklessness as well as negligence is that it is
based on ‘reasonable man standard’, which is an elusive concept without any
precise meaning. A significant objection against imposing criminal
responsibility for negligence has been spelt out by Glanville Williams thus;
“Although negligence has occasionally been treated as a form of

mens rea, there seems to be every argument against this view. (1)
Negligence is not by definition a state of mind, except on the
negative feature of absence of intention, and except in so far as
negligence may involve the intentional or reckless breach of
subsidiary jury rules. It should be linguistically objectionable to
describe something that is ndt a mental state as mens rea. (2)
224 JWCTurner,(1966) Kenny's Outlines of Criminal Law, 19th Ed,Universal Publishing House, New
Delhi(lndian Reprint,2006) at p.38
225 Alan R White, supra,n 174 at p.594
226 Supra,n.178
227 Cross, Jones and Card,(1995) Criminal Law, Butter worth,London,p.85
76
Mens rea is a general requirement for crime at common law; but

negligence is not sufficient In other words negligence is not the
kind of mens rea that characterise the ordinary run of crimes.
This is because the justification for punishing thoughtlessness is
not so strong as the justification for punishing foresight...”228
Therefore, he argues that crimes of negligence shall not be created

except after full consideration of the issue of policy and justice. Negligence
is not the kind of mens rea that characterise the ordinary run of crimes. This is
because the justification for punishing thoughtlessness is not as strong as the
justification for punishing foresight A standard objection to negligence
liability is that the wrongdoer who does not foresee a risk of harm and lake
sufficient steps to avoid it, when they could and should have done so, does not
realize at the time of the wrongdoing that they are violating the standard, i.e.
that they are doing anything wrong 230 It would be unfair to punish them for
their oversight. Nevertheless, it is not the lack of awareness as such makes
negligence objectionable as a basis for liability. The problem lies instead in the
way that negligence is characterized as failing to do what one could and should
have done. This overlooks the question of why the wrongdoer made this
omission. The failure may be due to a wide range of reasons such as
miscalculation, momentary inattentiveness or clumsiness and these
shortcomings do not necessarily show disrespect for the values damaged by the
negligence. However, negligence does not necessarily show disrespect for the
value damaged does not mean that it cannot do so. The failure to attend to a
risk may be due to an indifference to the value put at risk and this is a form of
disrespect. Then, the problem with negligence is not that it dispenses with the
need for advertence to the wrongdoing but its characterization in terms of
whether the wrongdoer could and should have foreseen the risk of their actions
and taken adequate precautions. The reason why the inadvertence occurred is
not considered and thus cases that do not manifest any disrespect are included
228 Williams, Supra, n.140 at p. 103

229 Ibid
230 Grand Lamond, (2007), "What is a Crime?",27 Oxford J. of Legal Studies 609 at p.624
77
are those where the wrongdoer was merely tired or distracted from seeing the
risk. The characterization of negligence in terms of capacity and opportunity
and the corresponding characterization for inadvertent recklessness do not draw
the right distinction between the failures to see a risk or take adequate
precautions due to an error or other shortcomings and those that are due to a
failure to respect the value.231
Duff provides the deepest account as to precisely why an attitude of

indifference is morally culpable even if the accused did not foresee the risks.232
His view is that, even in the traditional definition of subjective recklessness, the
foresight of the consequences alone is not that make him morally culpable but
rather his attitude of conscious risk-taking displayed towards the victim. The
actions of accused showed a willingness to cause injury, not because he desired
it, but because he did not care about the outcome. Duff claims that the ideal
attitude that the accused ought to display, in the context of offences against the
person, is a proper kind and degree of practical concern for the physical well
being and security of others. He need not attach supreme importance to this, as
other factors may justify his actions:
“but he will, as far as is possible and reasonable, try both to

prevent others suffering injury and to avoid causing them injury
by his own hands.”233
If indifference can be considered as the true reason why a subjectively

reckless individual can be considered blameworthy, then it is easy to see why
an individual who does not foresee a risk because he does not care can be
labelled as equally morally culpable. Duff recognises that, when the accused
genuinely did not notice an outcome, the risk of which was integral to his
actions, he expressed a certain attitude towards that outcome. Additionally, the
231
Ibid
232
Duff, [1980]" Recklessness" Crim. LR. 282
233
Ibid
78
accused can still be regarded as having been in full control of the consequences
of his actions even though he did not realise the risk of harm occurring.
Contrary to the subjectivist position, Duff thus argues that someone who did
not care about the risk could still be said to have voluntarily brought about the
harm.234The question of what constitutes sufficient mens rea for crime remains
to be solved.
The general attitude of the courts is also to exclude simple forms of

negligence from the purview of criminal responsibility. In R v. Adamako,235 an
anaesthetist during an operation failed to notice the disconnection of tube
supplying oxygen for about six minutes. Consequently, the patient died of
cardiac arrest While prosecuting him for manslaughter by criminal negligence,
the House of Lords observed that in such offences it is a sufficient direction to
die jury to adopt the ‘gross negligence, test. The court pointed but that it is
perfectiy open to the trial judge to use the word recklessness in its ordinary
meaning as part of his exposition of law if he deems it appropriate in the
circumstances of a particular case.
In India, the court generally follows the dictum laid down by the Madras
High Court in Nidamarti Nagabhushanam236, in which Justice Holloway stated:
“Culpable rashness is acting with the consciousness that the

mischievous and illegal consequences may follow, but with the
hope that they will not, and often with the belief that the actor has
Supra, n.22B
236 (1872)7Mad.HCR119.ln Nidamarti Nagabhushanam v. The Queen, the prisoner killed his mother
by beating and kicking her. The Sessions Judge found that the death resulted from a brutal
beating and kicking; but acquitting the prisoner of culpable homicide on the ground that the
violence was not such as the prisoner must have known to be likely to cause death, he convicted
the prisoner under the new Section 304 of causing death by a rash act. The High Court; did not
think the Judge's reason any ground for acquitting the prisoner of culpable homicide not
amounting to murder, because the question was, whether the act was done with the knowledge
of causing bodily injury likely to cause death. In the case in question, the brutal beating and
kicking and dragging by the hair of an old woman of 60 was by a powerful man who had acted
without the smallest provocation. The High Court pointed out that culpable rashness is acting
with the consciousness that the mischievous and illegal consequences may follow, but with the
hope they may not, and often with the belief that the actor has taken precautions to prevent
them happening, and that the imputabihty arises from acting despite the consciousness.
See also. Urn Hong Eng v Public Prosecutor [2009JGHC 92
79
taken sufficient precaution to prevent their happening. The

imputability arises from acting despite the consciousness
(luxuria). Culpable negligence is acting without the
consciousness that the illegal and mischievous effect will follow,
but in circumstances, which show that the actor has not exercised
the caution incumbent upon him, and that if he had he would
have had the consciousness. The imputability arises from the
neglect of the civic duty of circumspection.”237
Justice Straight further clarified the position of law in Empress of India

v. Idu Beg238 in the following words,
“Criminal rashness is hazarding a dangerous or wanton act with

the knowledge that it is so, and that it may cause injury, but
without intention to cause injury, or knowledge that it will
probably be caused. The criminality lies in running the risk of
doing such an act with recklessness or indifference as to the
consequences. Criminal negligence is the gross and culpable
neglect or failure to exercise that reasonable and proper care and
precaution to guard against injury either to the public generally or
to an individual in particular, which, having regard to all the
circumstances out of which the charge has arisen, it was the
imperative duty of the defendant person to have adopted.”239
The Supreme Court of India following these cases declared that.
“There is a distinction between a rash act and a negligent act. ...

Criminal negligence is the gross and culpable neglect or failure to
exercise that reasonable and proper care and precaution to guard
against injury either to the public generally or to an individual in
particular, which having regard to all the circumstances out of
which Ihe charge has arisen it was the imperative duty of the
accused person to have adopted. Negligence is an omission to do
something which a reasonable man, guided upon those
considerations which ordinarily regulate the conduct of human
affairs, would do, or doing something which a prudent and
reasonable man would not do. ... A culpable rashness is acting
with the consciousness that the mischievous and illegal
consequences may follow, but with the hope that they will not,
and often with the belief that the actor has taken sufficient
Id at,p,120
(1881) 1LR 3 All 776
Id at pp. 779-780
80
precaution to prevent their happening. The imputability arises

from acting despite the consciousness. Culpable negligence is
acting without the consciousness, that the illegal and mischievous
effect will follow, but in circumstances which show that the actor
has not exercised the caution incumbent upon him and if he had
he would have had the consciousness. The imputability arises
from the neglect of the civic duty of circumspection.”240
State of Gujarat v. Hyderali Kalubhai2*1 is another important case in

which the Supreme Court had occasion to discuss rash and negligent act in
section 304A of Indian Penal Code. Here, the deceased was sitting on a cot
near a Hotel by the side of the highway. The accused came in a tractor and
stopped the same on the highway. The accused used the key of his tractor to
start a truck parked opposite to the hotel and drove the same by the open field
in front of the hotel with the head lights on in full speed straight on the steel cot
on which the deceased was resting. The truck dashed against the cot and threw
away the deceased to a distance of about ten feet. The prosecution case was
that since there was enmity between the accused and the deceased because of
Panchayat elections, the accused wilfully and deliberately drove the vehicle
towards the cot with the intention of causing death. The accused was convicted
by trial court under section 304 Part I read with sections 323 and326 of IPC.
On appeal to High Court, it was converted to one under section304A.The State
filed an appeal by special leave against the judgment of the High Court. The
Supreme Court held,
“Section 304A carves out a specific offence where death is

caused by doing a rash or negligent act and that act does not
amount to culpable homicide under section 299 IPC or murder
under section 300 IPC. If a person wilfully drives a motor vehicle
into the midst of a crowd and thereby causes death to some
person, it will not be a case of mere rash and negligent driving
and the act will amount to culpable homicide. Each case will,
therefore, depend upon the particular facts established against the
accused.”
Bhalchandra Woman Pathe v. The State of Maharashtra (1969)71Bom. LR634 (SC) at p.637,1968
Mah.LJ. 423
AIR1976SC1012,1976 (l)SCC 889
81
The Supreme Court of India in Dr.Suresh Gupta v. Govt.of NCT of

Delhi has made a similar exposition of law as that of House of Lords in
Adamako242 The three-judge bench of the Supreme Court reconsidered this
decision of the division bench in Jacob Mathew v. State of Punjab 243 since
another division bench of the Court expressed doubt over the correctness of the
decision in Suresh Gupta’s Case244. In the present case, one Jewanlal Sharma
was admitted as a patient in CMC Hospital, Ludhiana. As he felt difficulty in
breathing, the relatives of the patient contacted the duty nurse, who in turn
called some doctors to attend the patient. The patient was not attended by
anybody for about 20 to 25 minutes. Afterwards appellant along with another
doctor came to the room of patient and connected an oxygen cylinder to the
mouth of the patient but the breathing problems increased further. On
examination, the oxygen cylinder was found empty. Though another cylinder
was brought, there was no arrangement to make it functional. Because of which
5 to 7 minutes were lost. By this time, another doctor arrived there and declared
the patient dead. The appellants placed reliance on Suresh Gupta case.245 The
division bench hearing the appeal doubted the correctness of the dictum laid
down in Suresh Gupta case and referred the matter for the consideration of the
larger bench along with reasons for their disagreement.246 The referring bench
assigned two reasons for their disagreement and formulated them as follows,
“(l)Negligence or recklessness being “gross” is not a requirement

of sections 04-A IPC and if the view taken in Suresh Gupta case
is to be followed then the word “gross” shall have to be read into
Section 304-A IPC for fixing criminal liability on a doctor. Such
an approach cannot be countenanced.
242 (2004) 6SCC422, In this case, Dr.Suresh Gupta operated a young man with no history of any heart
problem Dr Suresh Gupta for nasal deformity. Though it was not a complicated or serious
operation, it resulted in the death of the patient. The investigation revealed that the death was
due to introduction of a cuffed endo-tracheal tube of Improper size to prevent aspiration of
blood from the wound In the respiratory passage.
243 (2005) 6SCC1
244 Supra,n.242
245 Ibid
246 Supra,n.243
82
(2) Different standards cannot be applied to doctors and others.

In all cases it is to be seen whether die impugned act was rash or
negligent. By carrying out a separate treatment for doctors by
introducing degrees of rashness or negligence, violence would be
done to the plain and unambiguous language of Section 304-A.If
by adducing evidence it is proved that there was no rash or
negligence involved, the trial court dealing with the matter shall
decide appropriately. But the doctor cannot be placed at a
different pedestal for finding out whether rashness or negligence
is involved,”247
Thus, the Supreme Court of India got a wonderful occasion to consider

the concept of mens rea and negligence in the Indian contest. However,
surprisingly the case exposes the shallow nature of criminal jurisprudence in
India. It is even more embarrassing to see the observation of the court while
saying about negligence with mens rea248 and incidentally coming to the same
conclusion as that of Suresh Gupta Case. In Prabhakaran v. State of
Kerala249following the dictum laid in Andrews250 and Nidamorti
Nagabhusanam251 the Supreme Court declared that Section 304A speaks of
causing death by negligence. This section applies to rash and negligence acts
and does not apply to cases where death has been voluntarily caused. This
section obviously does not apply to cases where there is an intention to cause
death or knowledge that the act will in all probability cause death. It only
applies to cases in which without any such intention or knowledge death is
caused by what is described as a rash and negligent act. A negligent act is an
act done without doing something which a reasonable man guided upon those
considerations which ordinarily regulate the conduct of human affairs would do
or act which a prudent or reasonable man would not do in the circumstances
attending it. A rash act is a negligent act done precipitately. Negligence is the
Supra, n.243
Supra n,243 at pp.16,17 and 33
AIR 2007 SC 2376, The same was reiterated by the Supreme Court in State of Karnataka v.
Muralidhar, AIR 2009 SC 1621
(1937) AC 576 at p.583, 2 All E.R. 552
Sopra,n.236
83
genus, of which rashness is the species. It has sometimes been observed that in
rashness the action is done precipitately that the mischievous or illegal
consequences may fall, but with a hope that they will not. Section 304-A
applies to cases where there is no intention to cause death and no knowledge
that the act done in all probability will cause death. The provision is directed at
offences outside the range of sections 299 and 300 IPC. The provision applies
only to such acts, which are rash and negligent and are directly cause of death
of another person. Negligence and rashness are essential elements under
section 304-A. Culpable negligence lies in the failure to exercise reasonable
and proper care and the extent of its reasonableness will always depend upon
the circumstances of each case. Rashness means doing an act with the
consciousness of a risk that evil consequences will follow but with the hope
that it will not. Negligence is a breach of duty imposed by law. In criminal
cases, the amount and degree of negligence are determining factors. A question
whether the conduct of accused amounted to culpable rashness or negligence
depends directly on the question as to what is the amount of care and
circumspection, which a prudent and reasonable man would consider sufficient,
considering all the circumstances of the case. Criminal rashness means
hazarding a dangerous or wanton act with the knowledge that it is dangerous or
wanton. He may have knowledge that it may cause injury but done without any
intention to cause injury or knowledge that it would probably cause injury.
Rashness consists in hazarding a dangerous or wanton act with the knowledge
that it is so, and that it may cause injury. The criminality lies in running the risk
of doing an act with recklessness or indifference as to the consequences.
Criminal negligence is the gross and culpable neglect or failure to exercise the
imperative duty of the accused person to take the reasonable and proper care
and precaution to guard against injury to the public generally or to an
individual in particular.
84
In Naresh Giri v. State of M.P,252 the Supreme Court elaborately

discussed what negligence in the contest of section304A of IPC is. A train hit
the bus driven by the appellant at a railway crossing. In the accident the bus
was badly damaged, several passengers were injured and two persons died.
Charges were framed for fences punishable under section 302 and alternatively
under section 304, 325 and 323 of the Indian Penal Code. Questioning the
correctness of the charges framed, the revision petition was filed. The High
Court did not accept the plea that section 302 IPC has no application to the
facts of the case. It found no substance in the stand taken by the appellant that
he had no intention to kill the passengers. High Court was of the view that
based on material available, charges were framed and the intention of the
appellant can be gathered at the time of evidence. On appeal Supreme Court
held section 304-A IPC applies to cases where there is neither intention to
cause death nor knowledge that the act done, in all probabilities, will cause
death. This provision is directed at offences outside the range of sections 299
and 300 IPC. Section 304-A applies only to such acts which are rash and
negligent and are directly the cause of death. The Supreme Court further
observed,
“Section 304-A carves out a specific offence where death is

caused by doing a rash or negligent act and that act does not
amount to culpable homicide under Section 299 or murder under
Section 300. If a person wilfully drives a motor vehicle into the
midst of a crowd and thereby causes death to some person, it will
not be a case of mere rash and negligent driving and the act will
amount to culpable homicide. Doing an act with the intent to kill
a person or knowledge that doing an act was likely to cause a
person’s death is culpable homicide. When the intent or
knowledge is the direct motivating force of the act, section 304-A
has to make room for the graver and more serious charge of
culpable homicide. The provision of this section is not limited to
rash or negligent driving. Any rash or negligent act whereby
death of any person is caused becomes punishable. Two elements
either of which or both of which may be proved to establish the
guilt of an accused are rashness/negligence, a person may cause
death by a rash or negligent act which may have nothing to do
252 (2008)1SCC791
85 '
with driving at all. Negligence and rashness to be punishable in

terms of section 304-A must be attributable to a state of mind
wherein the criminality arises because of no error in judgment but
of a deliberation in the mind risking the crime as well as the life
of the person who may lose his life because of the crime. Section
304-A discloses that criminality may be that apart from any mens
rea, there may be no motive or intention still a person may
venture or practice such rashness or negligence which may cause
the death of other. The death so caused is not the determining
factor.”253
A perusal of negligence manslaughter cases reveals that the Indian

courts are trying to substitute recklessness in place of negligence. While
discussing about criminal responsibility for negligence it is to be always bom
in mind that ‘negligence’ is made punishable wherever the society want to
impose a duty to take care in spite of significant objections against such
punishment. Law is punishing such act not because of the mental culpability
but on the ground of a necessity. Therefore, to classify such offences on the
ground of degree is all the more difficult. Thus, the classification of negligence
into gross and other is illogical. Even if the degree is to be estimated, it can
only be based on the gravity of the consequence involved. It is evident when
we observe the development of recklessness as a via media. As far as the
criminal responsibility is concerned recklessness and negligence stands on a
different footing. It is true that the border between the concept of recklessness
and negligence is very thin so that it is used interchangingly in the ordinary
language. However, in the technical sense both the concepts are having
different meanings. Recklessness in the technical language involves a
deliberation of mind whereas negligence is the failure to comply a duty where
no deliberation is necessary.254 In short, recklessness requires a positive state of
mind but in negligence there is absence of mind. Therefore, culpability in cases
of recklessness is more. Recklessness requires a deliberation of mind to be
punishable where as negligence is inadvertence to a risk. Certainly, what law
253
Ibid
254
Wiiliams,Supro,n.l7B
86
needs is not recklessness here. What is required by the court in Adamanko is

not the recklessness in the legal sense but what is under stood in the ordinary
meaning i.e. the negligence must be so proximate to recklessness which is a
matter for the jury (trial court in India) to determine, Adomako discusses the
Objective recklessness256 {Caldwell257-Lawrence™ Recklessness) which is so
close to negligence as no deliberation of mind is necessary. However, it is to be
kept in mind that the Caldwell-Lawrence recklessness has been rejected by the
English court.259Recently, in R vMisra and SrivastavO160, the Court of Appeal
vehemently ruled out the possibility of substituting gross negligence with
recklessness while interpreting the principle in Adomako,261 Therefore drawing
parallels to require deliberation of mind as part of negligence and incorporating
recklessness, as required mens rea under Section 304 A is highly unwarranted.
In India Negligence has been made punishable under the Indian Penal
Code where negligence affects safety of public. If a crime of negligence is to
be established it is necessary to prove that the negligent owed a duty to another
person or public at large. However, it is to be noted that there is a wide gap
between intention and negligence. The law in India does not properly address a
state of mind where the accused had a deliberation of mind in which he
concludes that there if no risk or that the risk will not happen.
2.9 Negligence and Unlawful Acte:
Supra, n.223
In subjective test of recklessness, the accused recognises a risk of the consequence occurring but
unjustifiably takes that risk. This is Cunningham recklessness]/? v Cunningham [1957] 2 QB 396).
The Caldwell test of recklessness required an objective assessment of risk. Thus, a child who did
not recognise a risk that would have been obvious to the reasonable man would be deemed
reckless.
Supra, n. 178
Sopra,n.l79
Supra, n.96
Supra,n.97.The court of appeal interpreted Adomako as follows "Although the word "reckless"
might be deployed in summing up to the jury, its use simply reflected one way of describing the
ingredients of the offence....The result of the appeal was that the continuing existence of the
offence of manslaughter by gross negligence was confirmed. The attempt to replace
manslaughter by gross negligence with manslaughter by recklessness was rejected."
Supra, n.223
87
An interesting question as to the relevance of the nature the act in

determining the guilt came to be examined by the court in State of Kerala v.
Ashraf62 where the respondent caused the death by electrocution of a 14-year-
old boy, by placing a live wire under water for catching fish. While convicting
him for culpable homicide, the High Court of Kerala declared that in case of
unlawful act nothing more is required to make it culpable. The Court observed
that negligence or rashness is a concept that appertains only to the doing of a
lawful act. A lawful act becomes unlawful by the manner of doing it. An
unlawful act is not made any worse by doing rashly or negligently. The
apparent inconsistency in treatment can be seen if one compares the decision
with that of the Supreme Court in Cherubin Gregory v. State.2*3In this case, the
deceased was residing near the house of the accused. The wall of the latrine of
the house of the deceased had fallen down about a week prior to the day of
occurrence mid so the deceased along with others started using the latrine of the
accused. The accused protested against their coming there. The oral wafnings
however, proved ineffective and so he fixed up a naked copper wire across the
passage leading up to his latrine and that wire carried current from the
electrical wiring of his home to which it was connected. On the day of the
occurrence, the deceased went to the latrine of the appellant and there she
touched the fixed wire because of which she died soon after. The trial and the
appellate court convicted and sentenced the appellant under section 304A of
the Indian Penal Code. On appeal, the Supreme Court confirmed the conviction
under section 304A of the Indian Penal Code. It was a deliberate act on the part
of the accused with full knowledge of the risk directed against a person where
as in Ashraf though it was an unlawful act under the Electricity Act, it was
never against a person or the accused deliberated on such a risk.
Nevertheless, the law of negligence never did conform in full to the

requisites of the “moral” system of personal responsibility invoked in its
behalf. In particular, the standard of the reasonable man, developed in order to
262 1993 (l)KLT 501

263 (1964) 1 Cri. LJ. 138, (1964 AIR 205)
88
Chapter—Two Concept ofMens Rea in Criminal Law
insure injured plaintiffs a fair measure of protection against their fellow

citizens, could require a given person to make recompense even where no
amount of effort could have enabled him to act in accordance with the standard
of conduct imposed by the law.
2.10 General Concept of Mens rea and IPC:
At common law, courts enjoyed wide latitude to define the conditions

under which conduct was innocent and thus not eligible for the criminal
sanction. However, as criminal law became codified, courts had less discretion
to define these circumstances. Their authority was limited to the determination
of whether the statute had been violated or not. It is the case with Indian Penal
Code also. It is a general belief that since all the offences under the Indian
Penal Code are defined in such a way as to include the necessary mens rea as
part of the offence, the traditional concept of mens rea is not applicable for the
offences under the Code.264 In India, the law is codified and the offences are
carefully defined to include mens rea in the definition itself. The code also
contains an exhaustive list of general exceptions. These two together is
sufficient to exclude all cases to which mens rea can be attributed.265 Jurists
like MC Setelwad opines that when mens rea element is not mentioned
expressly or by necessary implication it is to be presumed that the omission is
deliberate and no mens rea is necessary to constitute such offence.266 However,
it is a vein thing to assume that the code is defect less. The code lacks clarity in
defining certain offences at least in making distinction between offences
against human body. Therefore, it is wrong to assume that the application of
264 Ratan lal Dhirajlai, Indian Penal Code, 24th Ed.

265 Huda,Shamsul,7/?e Principle of Law of Crimes In British India, Butterworth and
Company(india)Ltd,Caicutta,p.l78
266 MC Seteiwad,(1960) Common Law In India, Stevens and Sons Ltd,London. See also observation in
Cherubin Gregory, where the supreme Court observed,
"In the first place, where we have a Code like the Indian Penal Code which defines with
particularity the ingredients of a crime and the defenses open to an accused charged with any
of the offences there set out we consider that it would not be proper or justifiable to permit
the invocation of some Common Law principle outside that Code for the purpose of treating-
what on the words of the statute is a crime into a permissible or other than unlawful act"
Supra, n.263
89
doctrine can be totally excluded while interpreting the offences under the
Indian Penal Code. Nevertheless, where there is ambiguity necessarily the
common law requirement should revive. As observed by Shamsul Huda, even
where the law is codified, the application of the doctrine may sometimes be
found useful in remedying defective and incomplete definitions or at any rate in
interpreting them.267
We can summarise the discussion to say that whenever Parliament or a

legislature creates an offence, there is a presumption that the common law
*
doctrine of mens rea applies. In other words, it is assumed, that liability

depends not only on breach of the statute but also on the intentionallty,
recklessness, wilful blindness or negligence of the accused. In fact, the
presumption of mens rea in a penal statute reflects the common law view that
punishment of an individual is consonant with his liberty only if the accused
himself is the implicit author of his punishment. This recognises the principle
of autonomy. Unless the accused chose to expose him to penal sanctions, the
punishment amounts to the forcible use of an innocent individual as a tool of
state policy. This rule is considered to be of cardinal importance in the
protection of the personal liberty of the subject,268an integral part of the rule of
law. The principle of rule of law is a notion, which is of vital importance in a
sound legal system. The principle of legality is often considered as the key part
of the rule of law. This requires that criminal offences should be clearly
defined. Uncertainty in law will create chaos and confusion in the society.
Nobody will be sure whether his or her act is in conformity with law or not. An
element of unpredictability may creep in so that nobody can live their life with
the confidence that they are law abiding. In such circumstance, attribution of
culpability will be arbitrary or impossible. Yet another aspect of rule of law is
that the punishment should reflect the relative seriousness of the wrongdoing
and should not fail to reflect proper assessments of the culpability involved in
the act. Therefore, to make a person fit for punishment a culpable mental state
267 Supra,n.265
268 Supra, n.112.
90
must be present and the punishment must be proportionate to the culpability. It

also suggests that such punishment is to be inflicted after affording the
minimum protection guaranteed by the Constitution and Human Rights
Documents. The mental state of the actor assumes importance in this respect.
Being this, it is a general belief that the whole difficulty arose from an
over-statement of a true principle by the commentators of the seventeenth and
eighteenth centuries, followed by a reaction, which swung too much the other
way. Thus, Sir Mathew Hale says that,
“man is naturally endowed with these two great faculties,

understanding and liberty of will, and therefore is a subject
properly capable of a law properly so called and consequently
obnoxious to guilt and punishment for the violation of that law,
which in respect of these two great faculties he hath a capacity to
obey. The consent of the will is that which renders human actions
either commendable or culpable. .. Where there is no will to
commit an offence, there can be no transgression or just reason to
incur the penalty or sanction of that law inflicted for the
punishment of crimes or offences. And because the liberty of
choice of the will presupposeth an act of the understanding to
know the thing or action chosen by the will, it follows that, where
there is a total defect of the understanding, there is no free act of
the will in the choice of things or actions.”269
We can find support for this theory in the words of Sir William
Blackstone, when he said that all the several excuses, which protect the
committer of a forbidden act from the punishment, which is otherwise annexed
thereto, may be reduced to this single consideration, the want or defect of will.
To make a. complete crime cognizable by human laws, there must be both a
will and an act. Thus, another possible explanation of the doctrine of mens rea
has come up. Accordingly, wilfulness or its moral equivalent is an essential
element of penal liability because it represents the degree of blameworthiness
necessary to support the severe costs to the accused of a criminal conviction.
George Wiison,et al, Sir Mathew Hale's The History of the Pleas of the Crown, Ch. II, T Payne et al,
pp.14,15 retrieved from http://archive.org/details/hlstoriaplacltoOOwllsgoog at 10.54 pm on
8/8/2013
91
Whereas, the first theory sees mens rea as essential to the legitimating of
punishment, the second regards it as necessary to ensure the deservedness of
severe kinds of adverse consequences, including not only the loss of liberty but
also the suffering of social censure.270
The origin of statutory offences marked an era in which offences are

created without having the necessity to prove mens rea as part of the offence.
Here we can find two kinds of offences, one where there is a specific exclusion
of mens rea or some element of it and other where the law is simply silent
about mens rea. In the second category of cases, the attitude of ihe court is to
read mens rea into the offence.271 As a rule of statutory interpretation, the
presumption of mens rea could be ousted by a contrary legislative design.
Since the legislature seldom expressly excluded a fault requirement, the courts
developed an independent jurisprudence for determining when the presumption
of mens rea in a penal statute might unobjectionably be displaced.272
This creates a variety of offence having variable requirement of mens

rea. This creates uncertainty in the definition of the offence and
*
disproportionality in punishment, which strike at the bottom of a human right

oriented jurisprudence.
Though a part of well-known history, the reasons offered for excluding a

mens rea requirement from regulatory offences bear recitation, for they must be
faced anew in any constitutional challenge of an offence carrying
imprisonment. Therefore, it is time to discuss meaning, scope and rationale of
imposing strict liability in criminal law.
270 Alan Brudner, (1990) "Imprisonment and Strict Liability", 40L/TL/738

271 Sherras v.D'Rutzen,supra,n.31; State of Maharashtra v M H.GeorgeiAIR 1965 SC722); Nathulal v.
State (AIR1966SC43), State of Gujarat vAcharya D Pande (AIR1971SC866)
272
E.g., In Sherras v. De Rutzen, Supra, n.31. it was said that the doctrine of mens rea was excluded
from statutes prohibiting acts that are not criminal actually, but which in the public interest are
prohibited under a penalty. See for discussion. See also,Brudner,5upra,n.270
92

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CONCEPT OF MENS REA IN CRIMINAL LAW

2.1 History and Development

2.3 Subjectivism, Autonomy and Intention

2.7 Revival of Subjectivism

2.9 Negligence and Unlawful Acts

2.10 General Concept of Mens rea and IRC

2.1 History and Development:

“It is of the utmost importance for the protection of the liberty of

At first, the act alone was considered necessary to fix criminal

141 Chisholm v. Doulton (1889), 22 QBD 736.

Once adopted as a basic principle of criminal law, the legal meaning of

The meaning of ‘motive’ slowly was transformed from general moral

This development of mens rea comes now to a stage where it is very

recognises threb states of mind viz., intention, recklessness and negligence.

On an analysis of the element intention embedded in the meaning of

intention is used in the wider sense by the court and academicians.

approach is preferable to that of Hailsham. First, approach of Hailsham would

153 R.C.Nigam,(1965) Criminal Law, Asia Publishing House, at p.75

recklessly riskejd the death of another, he would be guilty of murder if death

If intention can be considered as the most blameworthy state of mind,

158 [1986] AC 453, [1986] 1 All ER 641

2.3 Subjectivism, Autonomy and Intention:

“If the offence is defined in terms of certain consequences and

The correspondence principle actually provides a measure of the level of

Knowledge is the mental cognition of a thing or state of affair. A person

As Glanville Williams put it, the concept of recklessness was developed

The term recklessness means a form of indifference to the realised

172 JWC Turner, Supra,n.154

“Whether evidence of self-induced intoxication can be relevant to

In House of Lords, Lord Diplock discounted Professor Kenny’s

To decide whether a person had been reckless as to a harmful

“In my opinion, a person charged with an offence under section

Their Lordship concluded that the unawareness of the risk of

“In the absence of exculpatory factors, the defendant’s state of

in the offence charged, and section 8 of the Criminal Justice Act

In R v Lawrence (Stephen),m the accused was riding a motor cycle

given to any explanation he gives as to his state of mind which

In this case, Justice Glidewell seems to be more pragmatic. He suggests

that, if the House had wished to modify the Caldwell203pjmdp\e to take

“where the driver acted under some understandable and

“I read this as no more than a cautionary instruction to the jury

explanation which accounts for his conduct. In short, they must

All the judges agreed that their observations were directed to

Objective standards are defined by reference to likely or obvious risk

2.7 Revival of Subjectivism:

First, it is a salutary principle that conviction of serious crime should

this misinterpretation is offensive to principle and is apt to cause injustice.

It is true that the introduction of recklessness has reduced the gulf

Negligence means an inadvertent risk-taking i.e., the respondent was

Crosby, C. (2008), "Recklessness - the continuing search for a definition", 72 J C L313-334.

was increasing the risk218. The question whether it is a state of mind is a

However, the present trend ofjudiciary is to accept ‘gross negligence’ as

Hall,Supra, n.145 at p.114

“Although negligence has occasionally been treated as a form of

Mens rea is a general requirement for crime at common law; but

Therefore, he argues that crimes of negligence shall not be created

228 Williams, Supra, n.140 at p. 103

Duff provides the deepest account as to precisely why an attitude of

“but he will, as far as is possible and reasonable, try both to

If indifference can be considered as the true reason why a subjectively

The general attitude of the courts is also to exclude simple forms of