P2 - CRIMINAL LAW

BUILDING BLOCKS OF
CRIMINAL LIABILITY

Z U FAS H A N
H ASA N



 ACTUS REUS - OMISSIONS

The actus reus of a crime is the bodily requirement/physical element/CONDUCT of the

crime:
(a) Body voluntarily doing something (positive act)
(b) Omitting to do something (negative)

The following are similar questions on Omissions:

Q. Evaluate the law with respect to omissions
Q. Assess the actus reus requirement of o ences
Q. To what extent should inactivity (omissions) be a su cient basis for criminal liability?)

Answer pattern:

The general rule is that under UK law, a person may have a moral/ethical/social
responsibility in order to, for eg, save another person in danger, however there is no legal
responsibility to do so which means that a stranger would not be liable for their failure to act
if they didn’t save the child near the edge of a cli [note to self: think about the seven
exceptions]

To quote Stephen J and Lord Diplock ‘there is no criminal liability in not acting’.

De ne AR and MR
- It is fundamental principle of criminal law that a person may not be convicted of a crime
unless the prosecution has proven beyond reasonable doubt both [a: responsibility is to
be attributed to the defendant for a certain behaviour or the existence of a certain state
of a airs (in a conduct crime) which is forbidden by criminal law and that the defendant
has caused a certain event (result crime)] and [b: that the defendant had a de ned state
of mind in relation to the behaviour, existence of the state of a airs or causing of the
event]
- There are no thought crimes, courts can never dispense with or do away with the actus
reus requirement of a crime, which means that it might be possible for the courts to do
away with the mens rea of an o ence [ for eg, strict liability o ences], but the same
cannot be done with the actus reus of the o ence.
- In some exceptional cases such as that of R v Lipman, it might be argued that the courts
seem to have let go of the actus rest requirement. In this case, the defendant was heavily
intoxicated on a self administered LSD trip and killed his friend while he was hallucinating
that she was a serpent. She died of asphyxia and he appealed against his conviction
arguing that the acts performed on the victim weren’t in his control due to the e ect of
the drug (his appeal was dismissed). Therefore the court may give importance to every
single element of actus reus of an o ence, even in those instances where it might be
relatively minimal such as o ence where the actus reus is a mere agreement (like
conspiracy). (To show the importance AR - action or omission and di erentiate it from
defences such as intoxication).
- There are a few situations where a lack of voluntariness leads to the defence of
automatism [where the defendant’s conduct is involuntary due to an external factor such
as a swarm of bees in front of a driver of the vehicle causing it to crash, or internal factor
such as a sudden epileptic seizure, stroke or convulsion etc]. In these situations the
defendant’s actions are said to be beyond their control and this defence negates the
criminal liability. The problem with this defence is that how the court de nes the limits

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 and judges have spent a fair amount of time narrowing the scope of this defence [Lord
Denning in R v Bratty, Broome v Perkins, R v Charlston and Ryan v R].
- It is also important to note that every aspect of the actus reus must be proved. For
example the actus reus of assault is causing a person to apprehend immediate unlawful
force and if the defendant’s conduct fails to ful l all the requirements there will be no
actus reus of assault [if defendant caused victim to apprehend force but not immediately,
example: if D calls V who is in Manchester and says “I am in London but when I am back
tomorrow, I will hit you”. There is no assault here as the victim didn’t apprehend
immediate unlawful force on their victim].
- Since the actus rest includes all the elements in de nition of crime [as seen above in the
example of assault], it follows that actus reus is not merely an act, it may comprise, in rare
instances, of an omission of a defendant.

Discussion for and against imposing criminal liability for omissions:

- Considerable controversy exists to whether and to what extent the law ought to regard
defendant’s omission as a basis of criminal lability. Strong arguments of principle and
practicality exist against imposing criminal liability for omissions. Victor Tadros, “Criminal
Responsibility”, 2005, presents the strongest argument against imposing criminal liability
for omissions: to make someone’s omission criminally liable could infringe the autonomy
of a citizen. The law criminalises holding someone underwater so that they drown but
does not criminalise a person's refusal to save a stranger since people are autonomous
and entitled to liberty: they can choose to ignore aiding a person [as argued by Glanville
Williams in “Criminal Omissions: the conventional view”]. This conventional view limits the
duty/responsibility to special relationships (parent/child), contracts (doctor/patient),
created or assumed responsibility, (you may go to the exceptions here and explain how
in certain situations a person maybe held liable for their omission to act).
- However, in some instances, there might be liability for omitting to act if the person is not
a stranger but is the defendant’s child or where the defendant had contractual duty to act
or where the defendant created the dangerous situation to begin with (same discussion
as above). Irrespective of these exceptions, the arguments of an individual’s autonomy
has been challenged for their failure to respect moral responsibility, ethical and social
obligations, particularly where a situation/danger could be averted by simply plucking the
child (as argued by Andrew Ashworth - social responsibility).
- Another argument against imposing criminal liability for omissions is that it would infringe
principles of legality: it is uncertain/questionable whether the law can impose liability with
su cient clarity and speci city to respect the principles of fair warning, fair labelling,
coherence with civil law, etc. Again there are counter arguments to these claims. In
addition to these claims, there is a suggestion that omissions cannot be regarded as a
cause of harm so that there should be no liability for them in result crimes.
- Further arguments against imposing criminal liability for omissions include the practical
di culty of de ning the standard duty which the law should impose on the person who is
required to act, and the potential unfairness in singling out for punishment a particular
individual from the population as a whole, or recruit of individuals none of whom acted.
- These are the reasons why omitting to act leads to criminal lability in only certain
exceptional cases (you can even choose to go to the exceptions here).
- In order for someone to be liable for their omission, the crime must be capable of being
committed through an omission. Some examples of crimes that can be committed
through omissions:
• it is long been accepted without debate that murder and manslaughter are capable of
being committed by omission. For example: R v Gibbons and Proctor, R v Stone and
Dobinson.

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 • Assault and Battery can also be committed through omissions. E.g., R v Santana
Bermudez + examples from book

- Argument against imposing liability for omissions: it will be really burdensome on

taxpayers, as the general public, if they are held responsible for their omissions to act
since they already pay taxes to the state and these taxes are used to nance rescue
services such as lifeguards, cost guards, re brigade, ambulance services, paramedics
(the point over here is the if the state provides these professionals to deal with
emergencies, a regular citizen should not be held liable for not acting/not reaching
somebody in danger, since they are already doing enough).
- Argument against imposing liability for omissions: is not always easy to distinguish
between an act or an omission. Some of the most di cult examples of this distinction
arise in the context of stopping of withdrawing medical treatment: If a doctor is keeping a
patient alive by putting them on a ventilator, and one day they stop the machine, this
clearly looks like a case of omission. It also is an omission if the machine switches it self
o through an electrical error and the doctor deliberately restart it. The question then
becomes, how are these two situations di erent from a doctor switching a machine o ,
[which is an act]. In theory it might be possible to somehow distinguish between these
cases but in practice, it is a bit more complicated especially in light of Article 2 of the
ECHR [right to life], Article 8 of ECHR [privacy rights of patients]
Airedale NHS Trust v Bland; Re A: conjoined twins.

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 ACTUS REUS - CAUSATION

Q. Assess whether the law relating to the chain of causation being broken by medical
treatment provides justice. (25)

Q. Evaluate the law with respect to causation. (25)

Answer pattern:

1. In every result crime, causation becomes an issue (for example in homicide, rape) -
speci cally in strict liability o ences, where there is an absence of mens rea, disputes
over causation become extremely critical (for example, o ences relating to the
environment).
2. Having said that, in majority of cases, causation is not at issue BUT when it is disputed
then the prosecution must prove that the defendant, by their conduct (act/omission),
caused the unlawful result.
3. There have been numerous critiques of causation, as to whether it is properly seen as
an element of actus reus or whether it can be seen as an element of the defendant’s
consideration of fault (mens rea) — Victor Tadros argues that the issue of causation
(causal inquiry) is sensitive to both MORAL FACTORS and STATE OF MIND of the
defendant. He gives an example: D stabbing V in the leg. In the rst scenario: D is
UNAWARE that there is a bomb nearby. It explodes killing V. D would not be liable for
murder even though he stabbed V with an intent to kill. In the second scenario, D stabs
V and leaves him, being AWARE that there is a bomb nearby. Tadros concludes that in
the second example, the bomb would not break the chain of causation because D was
aware of it.

Is causation a matter of law or fact?

1. A common approach, traditionally, of the courts has been to take causation as a matter
of FACT to be answered using common sense: what D did or what happened are
questions of fact
2. However, the question of whether D’s act CAUSED what happened to V are
complicated (may not remain only questions of fact)
3. This means that questions of LAW are de nitely involved because the court has to
consider whether D was IN LAW capable of being the cause
4. Whether D’s conduct caused the result is a question of fact which is decided by the
JURY and in doing so they must apply the LEGAL RULES where it is the judge’s duty to
explain to them these legal rules (R v Pagett). In R v Blaue, Lawton LJ said that where
there is NO con ict of evidence and all the jury has to do is apply the law to the facts
then a judge can tell the jury what the result of the application of the law would be.
However, in other cases (R v Cheshire), show that the jury may have a massive role in
evaluating the primary facts and this carries with it problems since juries will use and
exercise their own moral judgments.

But for test

1. The law takes a pragmatic approach, not a philosophical one: there could be MANY acts
or omissions which might be the but for cause of a result and the law CANNOT go
backwards into history and make someone/something liable (for example, if D was
NEVER BORN and their ancestors were NEVER born, there would be no crime)
2. The but for test is merely a starting point (explain the test - with cases) = factual cause

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 Connection between fault and result

1. D would not be liable if their culpable conduct in no way contributed to the result
2. This is a di cult idea and is often misunderstood
3. Example, in R v Dalloway, D was driving a cart on a highway with reins NOT in his hands
but loose on the horse’s back. A 3 year old child ran onto the road a few yards in front
of the horse and was killed. Erle J directed the jury that, if D had reins and by using the
reins COULD have saved the child then he was guilty of manslaughter BUT IF they
thought that D could not have saved the child by using the reins and stopping the horse
then he is not liable and they should acquit him. Another way of looking at it is that D is
liable because if he was not there with the cart to begin with then there would be no
accident - the issue with this is that FAULT is not shown and some courts/juries may
conclude that it is important to show that death was DUE TO the blameworthy element
in D’s conduct: in his mere NEGLIGENCE in not using the reins to stop the horse (R v
Clarke).

The issue of intervening acts

1. An intervening act may break the chain of causation and D, as the ‘but for’ cause, may
not be held liable.
2. D will remain liable if, despite intervening events, he remains the substantial and
operative cause of the result. D will not be liable if the intervening cause is not
reasonably foreseeable, or if there is a medical intervention that is so independent and
so potent that it removes D’s liability, and if the V’s own act breaks the chain of
causation if it is not within the range of responses that could be expected of V in that
situation. D will not be liable if a third party acted in a fully voluntary manner (there was
a free, deliberate, and informed intervention) but D will be liable if there is an instinctive
act by the third party (R v Pagett).
3. A major problem in the law on causation is what is meant by ‘intervening act must be
both su ciently independent of the defendant’s conduct and su ciently serious’?
Whatever words are used, it is to de ne and explain to a jury. It can be argued that
juries apply di erent standards in di erent cases.
4. The problem of intervening causes is sometimes put on the basis of substantial cause:
D’s conduct must be a SUBSTANTIAL cause in order for D to be liable, but the use of
this word can be misleading and may seem to mean ONLY that D’s contribution must be
more than negligible or not be so tiny/small (for example: D and V are roped
mountaineers. V has fallen over a 1000 foot precipice and is dragging D slowly after
him, D cuts the rope and V falls to his death 5 seconds before both D and V would have
fallen - ANY acceleration of death is killing but very trivial accelerations, like in this
example, can be ignored = D is NOT the su cient cause of V’s death). However, if D
assists V in dying by administering a drug (morphine) to accelerate death, D will be held
liable even though V was going to die anyway since they were terminally ill or losing
blood due to being shot. Why are these two scenarios coming to di erent conclusions?
5. We can see that, in homicide cases, causation raises controversial questions of law,
science, morality (ethics) to the DEGREE of acceleration that needs to be established in
order to discover the CAUSE of death
6. There are numerous high pro le cases involving doctors who has eased the su ering of
terminally ill patients: R v Cox, R v Adams, the case of Dr. David Moor
7. It may therefore be misleading to direct a jury that D is NOT liable unless his conduct
was a substantial cause (R v Hennigan, R v Kimsey, R v Fitzgerald)

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 8. Controversial area: cases of drug administration. The idea, that D is NOT responsible if
there is a fully voluntary intervening act by a third party, was ignored in drug
administration cases: here, courts have produced various results in di erent cases.
Before R v Kennedy (No.2), courts held that D will remain liable in cases where they, at
V’s request, bought heroin, prepared it, lled a syringe and handed it to V, who then
self-injected and overdosed, leading to death (D assisted and encouraged the
administration). But, in Kennedy No.2, courts held that D cannot be responsible for V’s
voluntary actions of self-injecting themselves with life-threatening drugs (where V is a
fully informed adult, making a voluntary decision to self-inject). House of Lords
emphasised the idea of free-will (please see R v Rogers)
9. Courts have struggled to produce a clear approach in this complex area: every case of
intervening causes is di erent and decisions are heavily in uenced by policy
considerations (medical interventions will rarely break the chain of causation - the courts
rarely nd doctors liable for the result since they are not on trial and fear of prosecution
may lead to defensive medical practices and lack of innovation). The best that the law
can o er is guidance on these principles

10. Another area of controversy is one concerned with cases of medical interventions:
- it is important to keep in mind that the medical professional is NOT on trial and the
question at D’s trial is whether the medical professional has broken the chain of
causation to be solely responsible for the result (V’s death) - R v Malcherek, R v Cheshire,
R v Jordan and R v Smith.
- Courts take into consideration policy reasons which maybe used to relieve the medical
professional from liability (impact on medical insurance; fear of criminal liability leading to
defensive medical practices, lack of medical innovation or experiments).
- In R v Malcherek, D in icted upon V injuries that resulted in brain damage. She was put
on a life-support machine and some days later, after carrying out 5 out of 6 tests for
brain-stem death, doctors DISCONNECTED the machine and a half and hour later
pronounced V dead. In this case, the judge withdrew the question of causation from the
jury, ruling that there was no evidence on which they could decide the cause of death.
On appeal, it was argued by the defence that there WAS evidence on which the jury
COULD have found that the doctors CAUSED death by switching the machine o . The
appeal was dismissed. This is unfair for D because there was no doubt that the doctor
had a role to play BUT the court stated that D’s initial act of in icting injuries onto the V
was an OPERATIVE and SUBSTANTIAL cause of death and that whether the doctor’s act
of putting the machine o was IMMATERIAL (since the doctor is NOT the one on trial).
- In R v Cheshire, (mention the facts brie y) the courts created the independency/potency
test: the D will ESCAPE liability IF the negligent medical treatment or intervention is so
independent of D’s conduct AND is in itself so potent in causing V’s death that D’s
contribution becomes insigni cant and the medical intervention becomes the MAIN
cause by breaking the chain of causation.
- This test is extremely di cult to apply and it is also UNCLEAR what ‘potency’ and
‘independency’ mean.
- It is clear that in most cases, Ds will be liable however outlandish and independent the
medical treatment is. (Unfair, unjust to D).
- Problems with this test can also be about unsanitary hospital conditions: D’s wounding
maybe an operative cause BUT what about cases where victims contract serious,
unrelated conditions or diseases while at hospital, such as COVID-19. Some justice can
be seen to be done in cases like R v Jordan where V had been stabbed in the stomach,
he was treated in hospital and the wounds were healing well. He was given an antibiotic
but su ered an allergic reaction to it. One doctor stopped the use of the antibiotic, but

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 the next day another doctor ordered that a large dose of it be given. The victim died from
the allergic reaction to the drug. Here, the actions of the doctor were held to be an
intervening act which caused the death.
- R v Jordan was distinguished by the court in R v Smith (explain the facts of R v Smith
brie y). Courts were quick and anxious to declare Jordan as NOT setting precedent in
favour of defendants (remember that this goes against the rules of precedent: no court
can disallow a later court from considering a decision and making it the main rule).
- In R v Malcherek, the court thought that if there was a choice to be made between Smith
and Jordan, Smith should be preferred (D remains liable as the operative cause of death
since those stab wounds were a substantial cause).
- A better test would be whether the treatment, or the way in which it was administered,
was so extraordinary that it was totally UNFORESEEABLE (gross negligence by medical
sta ) - this would break the chain of causation (doctors would be responsible - not the
defendant). An example of gross negligence by medical sta can be found in the US
case of Bush v Commonwealth where, after D harmed V, the medical o cer attending to
V accidentally (without intention) infected him with scarlet fever and V died of that (this
was not expected to occur in the ordinary course of events and D was freed from
liability).
- Having suggested a possible change in the law, it is important that the CURRENT law
(Cheshire) is elaborated upon: based mostly on policy reasons, courts have adopted a
STRICT approach in cases where there is medical intervention involving the conduct of
medical professionals. Their conduct is usually insu cient to break the chain of causation
(D remains liable).
- Today it is easier to gure out cause of death due to advances in forensic pathology, as
compared to earlier 19th century cases where causes of death were di cult to nd. The
courts do not seem to want the question of causation to become a medical one - it must
remain a legal question. In medical intervention cases, a judge may direct a jury that they
must acquit D if there is no evidence that D caused the result. However, it is NOT so clear
whether judges may tell them that they may nd that D did cause the result even where
that is the only reasonable conclusion, and if this is NOT for judges to decide, then it
should not be something for expert witnesses to decide either: the function of expert
witnesses in court is to give their opinion on medical issues and then it is for the jury to
FIND the facts and APPLY the legal rules to those facts as per the JUDGE’S DIRECTION
on causation. And so, cases such as R v Jordan have been criticised because medical
experts were allowed to say that cause of V’s death was certain medical treatment and
NOT the wounds in icted by D (in R v Cato, medical experts said that it was NOT for them
to state the cause of death - it was a question for the jury). In Jordan, whether the wound
was capable of being ‘a cause’ was a question of law, NOT of medicine (it is obviously
important to know about whether medical treatment played a role in causing the result
but it is not for the experts to say whether it was an e ective cause of death).

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 The egg-shell skull rule and V’s own acts/omissions

1. As per R v Blaue, D must take V as they nd them: mind and body.
2. If this rule is restricted to taking V as D nds them in physical terms only, little di culty
arises. But, controversially, the court in Blaue held that the rule includes taking V’s mind
as well as their body as found. This can be extremely harsh for Ds since it can be
argued that the emphasis of the law is on the result (death) instead of the
blameworthiness of D’s conduct (the stabbing).
3. Where the victim has a medical condition which makes an injury more serious, should
the defendant be liable for the more serious injury or even death? It can be seen as
being unjust where the defendant does not know about the medical condition. Similarly,
if a person has COVID-19 but has no symptoms and is untested, it seems they can
transmit the virus to another person. Is this enough for causation in law?
4. If the defendant causes the victim to react in a foreseeable way, then any injury to the
victim will have been caused by the defendant. This occurred in R v Roberts.
5. However, if the victim’s reaction is unreasonable (V’s reaction was so daft and
unforeseeable by D), then this may break the chain of causation, as in R v Williams, and
D will not be responsible.
6. Controversy arises in cases where, following D’s actions, V commits suicide. If the
victim of a rape were to be so outraged as to commit suicide by shooting herself it
might be argued that it was the bullet that caused the death and not the rape. Certainly
the rape is not an operating and substantial cause in the same sense as the wound in R
v Blaue; but according to that case the rapist must take his victim as he nds her (egg-
shell skull rule) : his act caused the act that caused her death. This may be the e ect of
R v Dear (1996) where D's conviction for murder was upheld, even though V may have
intentionally caused his own death by aggravating the wounds in icted on him by D. If V
would not have killed himself but for those injuries, D caused his death. It would have
been di erent if V had so acted only for some reason unconnected with D's attack on
him - for example, shame at his own disgraceful conduct (paedophilia) which had led D
to attack him. The decision is, perhaps, not quite conclusive of the rape victim/suicide
case: the wounds as well as V's acts may have been the physical cause of death,
whereas in the rape case the bullet is the sole physical cause of death. In R v Dear it
was immaterial that V's conduct was unforeseeable, and in this way the decision is not
easily reconcilable with the rule that V's ‘daft’ conduct will break the chain of causation.
7. In R v D (2006), D had struck his partner a minor blow on the forehead and she had
then committed suicide. This was against a lengthy background of domestic abuse
amounting to psychological injury by D. The charge of manslaughter was dismissed
since the prosecution relied on the history of abuse as founding an unlawful and
dangerous act.

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 MENS REA - INTENTION

Q. Evaluate the role of intention in the criminal law.

Q. Discuss the e ectiveness of the law with respect to the nding of oblique (indirect)
intention.

For the answer pattern, please see your note on intention.

(I have copy pasted the note here for your convenience)

Intention is the most serious level of mens rea, where the accused desired a particular
result, for e.g., murder.
Irrespective of the crime charged, the meaning of intention remains the same.

One view is that in law ‘intention’ should be limited to the narrow de nition of direct intent,
however, the courts have frequently given the word a wider meaning to include indirect or
oblique intention where it is su cient that the accused has foreseen the consequence
(killing, theft, etc) as a virtually certain result of their conduct.

Direct intent Indirect (oblique) intent

Where D desires to bring about a particular D does not desire the outcome.
outcome: it is their primary aim and objective (or
desire).
R v Mohan.

Intention is not the same as motive: D realizes that the outcome will occur as a result of
D is a hired assassin, it is his aim and objective to their actions. (INEVITABLE - VIRTUAL CERTAINTY)
kill. Motive of him being a professional killer is
irrelevant (R v Calhaem).

D is a serial killer and enjoys killing people. His
motive is irrelevant. Relevance is that D desired to
kill, it was his primary aim to kill V (R v Byrne).
R v Inglis - motive = mercy killing
Courts expanded the meaning of intent to include
indirect intent in order to cover scenarios such as:
D wants to destroy his cargo on the plane in order
to claim insurance. He intends to do this by putting
a bomb timed to explode mid-flight.
He knows that the passengers will die/drown, it is
not his aim and purpose or even his intention to kill
them. He wishes that they survive, it is not his direct
intent to kill them. But it s virtually certainty that the
passengers will die. D is said to have intended their
deaths (fulfilling the mens rea of murder).

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 Since numerous o ences have intention as their mens rea, it might be expected that the
meaning of such a fundamental term would have been settled long ago, but this is not so.
The literature on this topic is extensive and mostly philosophical:
• ‘The mens rea for murder - leave it alone’ by Glanville Williams
• ‘Intention in criminal law’ by JC Smith
• ‘In(de)terminable Intentions’ by Nicola Lacey
• ‘Criminal Responsibility ‘ by Victor Tadros
• Law Commission Report No. 304 ‘Murder, Manslaughter and Infanticide’

The cases are inconsistent, judicial opinion has recently changed and there is still some
measure of uncertainty.

We may begin, however, with one well-settled proposition: everyone agrees that a person
intends to cause a result if he acts with the purpose of doing so. If D has resolved to kill V
and he res a loaded gun at him with the object of doing so, he intends to kill. It is
immaterial that he is aware that he is a poor shot, that V is nearly out of range, and that his
chances of success are small. It is su cient that killing is his object or purpose, that he
wants to kill, that he acts in order to kill.

Note also that the de nition of intention is wider than ‘premeditation’ (pre-planning) where
that term is used to denote planning or calculated acts. ‘Intention’ in English law extends
beyond those cases to include spontaneous conduct (it goes beyond pre-planning to
include situations where the defendant made it their aim/objective to achieve a result even
where it is formed in the heat of the moment).

1. In murder intention is often referred to as ‘malice aforethought’ (as de ned by Lord

Coke). The House of Lords, in R v Moloney, clari ed that ‘malice aforethought’ in murder
means the defendant’s intention to kill or cause grievous bodily harm. In 1960, in the
case of DPP v Smith, the House of Lords laid down an objective test of liability in murder:
the test was NOT what the defendant personally foresaw or intended, instead the test
was what the ordinary reasonable person in the defendant’s position would foresee as a
consequence of their conduct (the objective test creates certainty in the law - the same
test is applied to all defendants and the law is not tailored to their subjective/personal
view or belief).
2. In Hyam v DPP, the court decided to overrule DPP v Smith, holding that its e ect had
been modi ed by S8 of the Criminal Justice Act, 1967, which created a subjective test for
intention which said foresight of consequences was only part of the evidence from which
intention could be inferred. The HOL de ned intention as Mrs. Hyam’s knowledge that
death or serious injury is likely to occur as a result of her action of throwing a petrol
bomb through Mrs. Booth’s letterbox. (today, this case has been overruled, but at that
time in 1975, the court blurred the line between the defendant intending a consequence
as opposed to being reckless as to it).
3. In 1985 and 1986, in R v Moloney and R v Hancock and Shankland, the HOL revisited the
meaning of intention.
4. Overruling Hyam, the HOL stated that intention is not de ned as when the defendant
foresees a consequence as probable and carries on regardless (this is being reckless as
to the consequences). Having said that, the jury may be directed that the defendant
acting with this foresight could be used as evidence that they intended the outcome.
5. With the cases of R v Nedrick and R v Woollin, the HOL further clari ed what intention
means, especially the grey area of what we call indirect intention (oblique intention). In
Nedrick, the court clari ed further the jury direction to be given by a judge for

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 determining the defendant’s intention to bring about a consequence: the jury may infer
intention if the evidence in a particular case shows that the defendant foresaw the
consequences as virtually certain (the example of how a person who intends to kill
another person on a plane straps a bomb underneath his seat. In this scenario, the
person who puts a bomb does foresee, as a virtual certainty, that everybody else on the
plane will die as well, even though it was not his primary aim to kill them. Therefore, the
defendant MAY be taken to have indirectly intended the death of everyone on that
plane).
6. In Woollin, Nedrick was approved with one minor change, whereby the court modi ed
the jury direction on intention and its meaning: the jury may nd intention if the
consequence is a virtually certain result of the defendant’s conduct (this has been
approved in R v Matthews & Alleyne whereby juries may nd intention on the
defendant’s behalf where the consequence is a virtually certain result of their actions, but
only based on evidence).

Analysis and evaluation:

1. Intention is an indicator of blame which helps with sentencing. It often leads to a higher
sentence which is important to re ect blameworthiness (culpability) – for example,
robbery.
2. It can help to distinguish between o ences which is vital for fair labelling and
sentencing practicalities – for example, intention is the main distinguishing factor
between the o ences of murder and manslaughter).
3. The development of the law shows complexity as statutory and common law de nitions
are not the same (as per the discussion above on how the meaning of intention
developed - you basically were evaluating the law on intention through the discussion
on the caselaw in the description of the intention above).
4. Although vital in relatively few o ences, it is hard for juries to know what is in a
defendant’s mind. As intention indicates a higher level of blame, it often leads to higher
sentences and so juries need to be very sure before they convict; this is not always the
case so they may only convict of lesser o ences even if this is not the most likely
conclusion based on the evidence.
5. The above point then means that the current de nition of intention (especially the
distinction between direct and indirect intent) blurs the line between evidence law and
substantive law (content of the law). The fact that the result was a virtually certain
consequence of D's act is very good evidence that he knew that it was a virtually certain
consequence; but it is di cult to see why it should be regarded as a necessary
condition for nding the meaning of intention: if D thinks that the result is virtually
inevitable, but is making a mistake, why should he be held not to have intended the
result because it was not, in fact, inevitable? If D res a gun pointed at V's heart, his
intention can hardly be a ected by the fact, unknown to D, that V is wearing a bullet-
proof vest. D's state of mind is still blameworthy and it should not matter whether V is
wearing the vest or not: the di erence is in the external circumstances. This point may
not be of great practical importance because the best evidence that D knew that the
consequence was virtually certain will be the fact that it was virtually certain; but this is
not invariably so.
6. In murder, a conviction using intention leads to a mandatory life sentence and a
signi cant stigma for the defendant which might make juries less willing to convict.
7. As the test for oblique/indirect intent can be hard for a jury to apply, this can lead to
uncertainty and inconsistency. Many juries decide using their common sense rather than
the tests which raises questions about justice, fairness and e ectiveness. The Woollin
direction is confusing in the sense that the jury MAY FIND intention on the defendant’s

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 part if they think that the consequence was a virtually certain result of the defendant’s
actions: is D's foresight of a virtually certain result conclusive proof that he intended that
result? Or is foresight of a virtually certain result merely evidence from which the jury
may go on to nd that he intended that result, if they wish so to categorise his state of
mind? In Nedrick, the Court of Appeal had stated that foresight of virtual certainty is
merely evidence from which intention may be inferred. On that approach, a jury may
conclude that D foresaw V's death as virtually certain and yet choose not to treat that as
intention. The House of Lords in Woollin clari ed this much-criticised proposition and at
one point Lord Steyn said that, “The e ect of the critical direction is that a result
foreseen as virtually certain is an intended result”. That was welcomed by many
commentators since it seemed to be an clear statement from the House of Lords that
there was no room for any nding of intention by the jury. On a literal reading it ought to
follow that a court or jury, when satis ed that D had such foresight, must (not 'may') nd
that the result was intended by D. This creates certainty and consistency in application
of the law on intention (equating foresight of virtual certainty with intention) and is
clearly an advantageous approach. An alternative view was that Woollin did leave a
degree of exibility for the jury; the decision of the House of Lords was that the jury
‘may nd’ intention. This suggests there is something further for the jury to decide once
they have concluded that D foresaw the result as virtually certain. It has been suggested
by Professor Norrie that a test in which foresight of virtual certainty was intention, rather
than something from which intention may be found, would be over-inclusive and would
not re ect the degree of ‘moral malevolence’ in D's act. The argument is that the jury,
having decided that D did foresee some prohibited consequence as certain, should go
on to consider whether, in all the circumstances, he was so wicked that an intention to
cause the evil should be attributed to him. Although this might enhance the prospects of
achieving justice in the individual case, it does little to secure certainty and consistency
in general application. The Court of Appeal remains  unwilling  to interpret Woollin as
laying down a clear rule that foresight of virtually certain consequences  is  intention
(preferring the exible approach where juries can also NOT nd intention on D's part
even where the consequence was a virtually certain and inevitable result of D's actions):
this can be seen in R v Matthews and Alleyne, where M and A were convicted of
robbery, kidnapping and murder. V was attacked on leaving a club in the early hours of
the morning, and ultimately thrown o a bridge 25 feet high into a river 64 feet wide. V,
being unable to swim, drowned. A co-accused gave evidence that V had said he could
not swim. One ground of appeal against convictions for murder was that the judge had
directed the jury that foresight of virtual certainty of consequences was intention. The
Court of Appeal held that Woollin did not reach or lay down such a rule: Woollin was
concerned with the law of evidence. The judge had gone further than permitted. It
seems then, that following Woollin, the jury retain their ‘moral elbow room’: a person
who admits to having seen the result as virtually certain will not necessarily be found to
have intended the result; the jury will have the discretion to nd that he did. This is, it is
submitted, an unsatisfactory position, leaving unde ned a key term of fault applicable in
the most serious crimes. The potential for inconsistent decisions on identical facts is
stark.
8. In summary, aside from the complexity and lack of de nition, the present law may be
seen by some as too wide in treating as intention those cases in which D has foreseen
as a very high probability that a particular consequence will arise, but asserts that that
result was not his purpose. The Law Commission proposed a codi cation of the present
law, having considered and rejected various forms of exhaustive de nitions of intention.

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9. There have been proposals for change in relation to murder and manslaughter o ences
but these have not happened which might suggest that the law is good enough; critics
argue there is still a problem but no political will to resolve it.

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 MENS REA - RECKLESSNESS

Q. Evaluate the role of recklessness in the criminal law.

Answer pattern:

1. Recklessness as mens rea requires the defendant to be aware of the risks of their
conduct.
2. Awareness of risk: the defendant’s awareness of risk is assessed subjectively: this means
that the defendant personally has foreseen that the particular kind of harm may occur
(foresight of harm) and yet the defendant goes on to take the unjusti ed risk anyway.
3. At the time that the court was deciding Hyam v DPP, it blurred the line between what
intention is as compared to recklessness. If Hyam was decided today, it would actually
be a case for a reckless state of mind.
4. Professor Kenny, in his textbook called the Outlines of Criminal Law, has been quoted by
the COA while determining the meaning of recklessness. He talks about the defendant
foreseeing the risk of harm and suggests that a better phrase to describe foreseeing the
‘risk of harm’ is being aware of it since it is possible to be aware of things which might
happen without explicitly thinking about them (foreseeing them) at the time of acting. Use
R v Parker and R v Brady here - in Parker the defendant, after a bad day at the o ce,
slammed down the receiver on the cradle of a defective public telephone in frustration,
which broke the telephone. He was ned for the damage caused and he appealed. The
CoA upheld the ne saying that if D did not think about the risk of damage before he
slammed down the telephone then ‘he was, in e ect, deliberately closing his mind to the
obvious – the obvious being that damage in these circumstances was inevitable’.
5. In 1982, in the case of R v Caldwell, recklessness was decided to be judged objectively
(as per Lord Diplock). This meant that it was no longer necessary to prove that the
defendant personally (subjectively) foresaw the risk of harm that may be attached to their
actions: it was enough that the defendant ought to have foreseen it. 
1. In Caldwell, the court decided that even in those cases where the defendant gave no
thought to the risk of damage (even where the D could not personally foresee the
damage or harm) they would not be said to be reckless as to the consequences as long
as the risk of harm was obvious (as long as reasonable person in the D’s situation would
have recognised the risk or been aware of it). This became the standard objective test. 
2. This objective de nition of recklessness was used for all those crimes where
recklessness is the required mens rea, except for crimes of violence which continued to
require actual subjective awareness of the risk of harm by the defendant (R v Spratt).
3. In 2003, with the case of R v R & G, the HOL was faced with another case involving
recklessness. The HOL acknowledged that Lord Diplock’s objective test of recklessness
in Caldwell was unfairly decided and in the current case it would be unfair to judge the 11
and 12 year old boys as per the standard of foresight of harm of a reasonable adult.
4. Their lordships in this case had 3 choices:
(c) to keep the law as it was, approving Caldwell,
(d) to modify the Caldwell test of recklessness (keeping it  objective but taking into
account the defendant’s age, experience and mental capacity),
(e) overrule Caldwell and reinstate the subjective test of recklessness as per R v
Cunningham,
The court decided to go with the third option, overruling Caldwell and taking the law
back to Cunningham.

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Analysis and evaluation:

1. The decision in R v R & G is important in reasserting the importance and primacy of the
subjective test of recklessness (con rming other court decisions such as DPP v B, R v K,
R v (Morgan) Smith). Lord Rodger acknowledged that there are academic arguments in
favour of the objective approach to recklessness (as per R v Caldwell) and the choice is
not between simply between the strict subjective and objective approaches.
2. Recklessness is a subjective test. This makes it clear that the defendant is at fault. It
makes people take responsibility where they are aware there is a risk of the
consequence occurring. This is fair on the defendant, as they are only guilty if they
personally realise the risk.
3. However, it can be argued that the law is not so fair on innocent victims and their
families. Someone may have been seriously injured or even killed, yet the attacker may
be not guilty if they were not subjectively reckless. So, it can be argued that the law does
not give su cient protection to innocent members of the public.
4. There is con ict between public policy and legal principles. Public policy is based on
public protection and the encouragement of good behaviour. Legal principles impose
liability where there is fault. It is often not possible to balance public protection with
fairness to the defendant.
5. It can also be argued that having a subjective test for recklessness means that a
defendant can too easily avoid liability. The prosecution has to prove that the defendant
was aware of the risk. It can be di cult to prove what was in their mind and it allows their
characteristics to be taken into account in deciding whether they realised the risk. Many
commentators have put forward versions of a midway approach in which the harshness
of a pure objective approach are are avoided. These approaches seek to re ect the level
of D’s blameworthiness (culpability) in failing to prevent a risk that is obvious to them and
ones that are within their capacity to recognise and address.

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 MENS REA - TRANSFERRED MALICE

Example: D, intending to shoot V dead, misses V and kills A, innocent bystander. Is D guilty
of killing V?

• In this example, D is guilty of murdering A since they have the mens rea for murder
and they have also committed the actus reus. 
• The criminal law of UK permits the defendant’s mens rea in relation to V to be joined
the actus reus committed against A. This is the doctrine of Transferred Malice. 
• As per Lord Mustill in AG’s Reference (no.3 of 1994), transferred malice is the doctrine
whereby the intended victim (V) and the actual victim (A) are treated as if they are
one so that what was intended to happen to V (but did not happen) is transferred on
to or added to what actually happened to A (but was not intended to happen).
• The result is that what was intended and what happened are married to actually
consummate the crime. 
 
R v Latimer (1886)
The defendant aimed a blow with a belt at a man in a pub after that man had attacked him.
The belt bounced o the man and struck a woman
in the face. Latimer was guilty of an assault against the woman, although he had not meant
to hit her. There was, however, transferred malice so he could be found guilty of hitting
the woman.

R v Mitchell (1983)
The defendant tried to jump the queue at a Post O ce. An elderly man took issue with his
behaviour and challenged him. The defendant hit the old man and pushed him. The man fell
back onto others in the queue including an elderly lady who fell and broke her leg. She later
died. Here, the mens rea directed towards the old man was transferred to the o ence
against the old woman.

R v Grant
This case stands for the principle that the doctrine of transferred malice applies even where
the harm su ered by the unintended victim di ers from the harm that the defendant
intended their victim to su er. 
Defendant red shots into a shop intending to kill X. The shots missed and hit Y and Z who
were bystanders. 

Transferred malice only applies with respect to crimes of the same family:
R v Pembilton: in this case, the defendant threw a stone at X (intended victim). The stone
misses X and breaks a window. The court held that defendants intention to harm X does not
transfer on to breaking a window since they are not the same family of crimes. However, the
defendant could be guilty of criminal damage separately since that o ence can be
committed recklessly (the defendant might be guilty of that o ence if they subjectively
foresaw that their action of throwing the stone may break the window).

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 COINCIDENCE OF ACTUS REUS & MENS REA

The actus reus of an o ence must coincide with its mens rea. The prosecution must prove
that the defendant had the mens rea for the o ence at the time he carried out the actus
reus of the o ence (R v Jakeman).
Example of a scenario where the actus reus and mens rea do not occur simultaneously:
(For this example, please remember that the actus reus for murder is to ‘unlawfully kill a
human being’ and the mens rea for murder is ‘intention to kill or cause grievous bodily
harm’).
B drives to A’s house intending to kill A (no actus reus for murder here, mens rea for murder
is present). Before B gets there, a drunken pedestrian staggers out in front of his car and B
can’t stop: the pedestrian dies and when B gets out of his car, he discovers that it was
actually A (no mens rea for murder here: only actus reus is present).
In order to deal with the situations where the actus reus and mens rea are not reconciling,
courts have created the following exceptions, through which they determine guilt:
1) Situations where the actus reus of an o ence precedes its mens rea
Courts have developed two di erent approaches to this:
(a) in circumstances where the actus reus of an o ence is a continuing act, liability
can be established (Fagan v MPC: the defendant was charged with battery which
requires the application of unlawful force. The defendant intended and continued
to not remove the car o of the o cer’s foot and so he committed the actus reus
for battery by continuing to keep the car on the foot).
(b) where the defendant has created a dangerous situation, he is under a duty to act
in order to avert liability according to the Miller principle (R v Miller: The
defendant fell asleep and the cigarette in his hand led to the house he was
squatting in to be burnt down by re. He left the premises without taking any
action to stop the re. The D was liable for criminal damage. The actus reus was
satis ed because the defendant created the danger and then omitted to rectify
it).
2) Situations where the mens rea of an o ence precedes its actus reus
(a) R v Thabo Meli: The defendants attacked the victim, beating him savagely.
Thinking that the victim is dead, they threw him o a cli . The victim was alive and
did not die from the fall but died later because of exposure to the cold. When the
defendants threw the victim over the cli they possessed the mens rea for
murder (intention to kill or cause grievous bodily harm) but had not committed the
actus reus (unlawful killing of a human being) since the victim was still alive. The
mens rea took place before the actus reus. In nding the defendants guilty of
murder, the court decided that where the defendants conduct is carried out as a
series of incidents/transactions designed to cause GBH or death, provided that
the actus reus and mens rea occur somewhere along the timeline, the D will be
liable (the court treated the entire sequence of events as a ONE continuing act).

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 (b) R v Church: if the jury regards the defendant’s behaviour, from the moment he
rst attacks the victim to the moment he threw her into the river, as a series of
acts designed to cause death or GBH, they would convict. There was no
coincidence of actus reus and mens rea (D believed the V to be dead when the
actus reus occurred). A premeditative plan is not necessary as long as the
defendant’s conduct constituted a series of acts which culminated in V’s death.
(c) R v Le Brun: The defendant and victim fought, and the defendant punched the
victim who fell unconscious. The defendant sought to drag her body away (she
was alive, but she hit her head during the fall while he was dragging her away).
Mens rea for murder took place when he struck her with an intention to kill or
cause GBH and the actus reus of murder is happening much later when she
actually dies). Where the subsequent actions which caused death, after the initial
unlawful blow, are designed to conceal his commission of the original unlawful
assault, the defendant will not escape liability even when an interval of time has
passed between the mens rea and actus reus.

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