1

LECTURE NOTES – MENS REA

(THE WEEK OF NOVEMBER 24 , 2015)
________________________________________________________________________
INTRODUCTION

As discussed in last week’s lecture, all crimes, save and except strict liability offences
requires the defendant to have the requisite mental element to make what may have
otherwise be a simple mistake or an unfortunate event a crime. For example: For one to
be guilty of theft, one must have intended to permanently deprive the owner of his/her
goods; if one is to be found guilty of murder one must have intended to kill.

The term mens rea, simply put and in the strictest sense means “guilty mind”. But when
one speaks of mens rea in criminal law, to state in absolute terms that it refers to a guilty
mind is far too simplistic a view. For in many crimes, persons may be deemed to have the
requisite mens rea but had no intention to commit the particular crime. For example, the
man who drives down the road with reckless abandon, may not in the truest sense of the
word, intend to kill anyone, if he does so however he may still be deemed to have the
necessary “mens rea” or mental element for murder or manslaughter , depending on the
particular facts of the case.

That being said, the question arises as to what exactly does mens rea mean and what
does it cover.

Mens rea really refers to the mental state of mind which must be proven existed and
coincided at a point in time with the actus reus to constitute a crime. It is also directly
linked to whether a person should be criminally culpable for his acts as the majority of
serious crimes require, in addition to the actus reus, a specific state of mind on the part of
the accused which is usually referred to as the mens rea. That is, they require proof of a
blameworthy state of mind, for example that the D intended or foresaw a particular result,
for him to be found guilty. If the prosecution fails to prove that an accused had the
requisite mens rea of a crime, it would have failed to prove its case, and the accused must
walk free.

As alluded to above, the importance of proving the existence of mens rea can be summed
up in the famous maxim coined by Lord Coke; i.e. :

“Actus non facit reum nisis mens sit rea” – An act does not make a man guilty unless his
mind be guilty.

As it relates to criminal offences, a man may be said to have a guilty mind in the
following scenarios:-

(i) Where he intended a certain result; i,e, he had the requisite intention;
(ii) Where he was reckless as to the likelihood of his actions causing a certain
result; i.e he was reckless;
(iii) Where he owed a duty of care to someone, breached it and such breach
resulted in harm or death to someone else; i.e. where he was negligent.

Each of these mental elements will now be examined.

Compiled and prepared by Kaysha A.C. Franklin and Ayisha R. Robb

 2

INTENTION
 
The word intention in its plain and ordinary meaning does not warrant much discussion.
In its simplest terms it means actively working to bring about a particular result. So when
one hears that a person “intended” to do something, one automatically thinks that the end
result was desired by that person.

And this is actually the case as it relates to “direct intention” in criminal law. Direct
intention occurs where the defendant embarks on a course  of conduct to bring about
a result which in fact occurs. The majority of cases will be quite straight forward
and involve direct intent.

For example - D intends to kill his wife. To achieve that result he gets a knife from the
kitchen, sharpens it and then stabs her. This results in her death. The conduct achieves the
desired result. That is, he acts with the purpose of causing the particular result. He is said
to have directly intended to kill his wife.

The problem arises in terms of definition where one looks as the other kind of intention
recognised in law; i.,e oblique intention.
 
The definition of oblique intent is more complex than the definition of direct intent and
its definition has evolved over the years from the case of DPP v Smith 1961 to the case of
R v Woolin 1998.

As it stands today, oblique intention can be said to exist where the defendant
embarks on a course of conduct to bring about a desired result, knowing that it is a
virtual certainty (barring the intervention of any unforeseen event) that the
consequence of his actions will also bring about another result. The second result
however is not his purpose for acting.

For Example - D intends to kill his wife. He knows she is going to be on a particular
aeroplane and places a bomb on that aeroplane. He knows that it is a virtual certainty that
bombing the plane will result in the death of the other passengers and crew of the
aeroplane even though killing them is not his intention in the strictest sense of the word.
In this situation D is no less culpable in killing the passengers and crew than in killing his
wife as he knows that by virtue of his actions their death would be a virtual certainty. He
would be said to obliquely intended to kill the passengers and crew.
 
While the definition of oblique intention now seems settled, the courts struggled over the
years 1961 (Smith) to 1998 (Woolin) to find an appropriate test to apply in cases of
oblique intent.

In particular one of the questions which troubled the court was whether the test should be
subjective or objective?

Subjective or objective test

 
A subjective test is concerned with the defendant's perspective. In relation to oblique
intent it would be concerned only with whether the defendant personally foresaw the
degree of probability of the result occurring from his actions.

An objective test looks at the perspective of a reasonable person. That is, would a
reasonable person have foreseen the degree of probability of the result occurring from
the defendant's actions.
 
Originally an objective test was applied to decide oblique intent:

DPP v Smith [1961] AC 290 (House of Lords)

Compiled and prepared by Kaysha A.C. Franklin and Ayisha R. Robb

 3

A policeman tried to stop the defendant from driving off with stolen goods by
jumping on to the bonnet of the car. The defendant drove off at speed and
zigzagged in order to get the police office off the car. The defendant argued he did
not intend to harm the policeman. The policeman was knocked onto the path of an
oncoming car and killed. The defendant was convicted of murder. The trial judge
directed the jury as follows:

‘If you are satisfied that ... he must as a reasonable man have contemplated that
grievous bodily harm was likely to result to that officer ... and that such harm did
happen and the officer died in consequence, then the accused is guilty of capital
murder. ... On the other hand, if you are not satisfied that he intended to inflict
grievous bodily harm upon the officer - in other words, if you think he could not
as a reasonable man have contemplated that grievous bodily harm would result
to the officer in consequence of his actions - well, then, the verdict would be
guilty of manslaughter.’

The jury convicted of murder and the defendant appealed on the grounds that this
was a mis-direction and that a subjective test should apply.

The Court of Appeal quashed his conviction for murder and substituted
manslaughter conviction applying a subjective test.

The prosecution appealed to the House of Lords who re-instated the murder
conviction and held that there was no mis-direction thereby holding an objective
test was applicable.

A shift to a subjective approach was seen in Hyam v DPP where in this case the House
accepted that foresight of consequences being highly probable (lesser threshold than
virtual certainty) was sufficient to establish intent.

Hyam [1975] AC 55 (House of Lords)

The appellant had been having a relationship with Mr. Jones. Mr. Jones then took up with
another woman Mrs. Booth and they were soon to be married. On hearing this news, the
appellant drove to Mrs. Booth house in the early hours of the morning and poured petrol
through the letter box and ignited it. She then drove home and did not alert anyone of the
incident. The house caught afire. Mrs. Booth and her young son managed to escape the
fire but her two daughters were killed. The trial judge directed the jury:

"The prosecution must prove, beyond all reasonable doubt, that the accused
intended to (kill or) do some serious bodily harm to Mrs. Booth the mother of
the deceased girls. If you are satisfied that when the accused set fire to the house
she knew that it was highly probable that this would cause (death or) serious
bodily harm then the prosecution will have established the necessary intent."

The jury convicted of murder. The conviction was upheld by the Court of Appeal. The
appellant appealed to the House of Lords on the grounds that knowledge that a certain
consequence was a highly probable consequence does not establish an intent to produce
that result, but is only evidence from which a jury may infer intent. Held: 3/2 decision.
The appellant's conviction for murder was upheld as there was no misdirection.

Compiled and prepared by Kaysha A.C. Franklin and Ayisha R. Robb

 4

Lord Hailsham's dissent: “I do not believe that knowledge or any degree of foresight is
enough. Knowledge or foresight is at the best material which entitles or compels a jury
to draw the necessary inference as to intention.”

The test was further modified in R v Moloney where there was a shift from foresight of
the consequence being a highly probable result of one’s actions to foresight of it being a
natural consequence of one’s actions.

R v Moloney [1985] AC 905  

The Defendant and the Victim (D’s stepfather of whom D was very fond) had a contest as
to loading and firing a shotgun. D a serving soldier shot V without aiming. V taunted D
to fire the gun. Incident occurred during a late night of drinking. The Court held that the
Defendant was not guilty of murder.  

Note Lord Bridge's test on oblique intent:

“First, was death or really serious injury in a murder case (or whatever relevant
consequence must be proved to have been intended in any other case) a natural
consequence of the defendant's voluntary act?

Secondly, did the defendant foresee that consequence as being a natural

consequence of his act?” The jury should then be told that if they answer yes to both
questions it is a proper inference for them to draw that he intended that
consequence."

However, Moloney left a problem with regards to the degree of probability required.

This was considered in Hancock and Shankland [1985] 3 WLR 1014

The appellants were convicted of murder for the death of a taxi driver. The appellants
were miners on strike. They wanted to block the road to the mine to prevent workers
breaking the picket line. In order to do so, they dropped lumps of concrete from a bridge
on to the carriageway below as the convoy of workers approached. The taxi was struck
by two lumps of concrete resulting in death of the driver. The prosecution contended that
the appellants conduct meant that they intended nothing less than serious bodily harm.
The appellants argued that they only intended to block the road and no harm was
intended to result from the actions. The jury were directed in accordance with the
Moloney guidelines and convicted of murder.

The Court of Appeal quashed the conviction and certified a point of law to the House of
Lords as to whether the Moloney direction was misleading.

It was held by the House that the Moloney direction was misleading as it did not refer to
the degree of probability required. The appropriate direction should include a reference to
the degree of probability and in particular an explanation that:
Probability- Consequences- intention.
- the greater the probability of a consequence the more likely it is that the
consequence was foreseen and (G.P consequence= foreseen)

- that if that consequence was foreseen the greater the probability is that that
consequence was also intended. (Consequences foreseen=consequence
intended)

The degree of probability was still causing problems and the cases of Moloney and
Hancock and Shankland were reviewed by the Court of Appeal in Nedrick which
reformulated the test.

Nedrick [1986] 1 WLR 1025 CA

Compiled and prepared by Kaysha A.C. Franklin and Ayisha R. Robb

 5

The appellant held a grudge against V. He went to her house in the middle of the night
poured paraffin through her letter box and set light to it. A child died in the fire. The trial
was held before the judgment was delivered in Moloney. The judge directed the jury as
follows:

"If when the accused performed the act of setting fire to the house, he knew that
it was highly probable that the act would result in serious bodily injury to
somebody inside the house, even though he did not desire it – that is, desire to
bring that result about - he is guilty of murder."

The jury convicted of murder and the defendant appealed on the grounds of a mis-
direction. Held: There was a clear misdirection.

The Court of Appeal reviewed the cases of Moloney and Hancock & Shankland and
formulated a new direction from the two decisions.

Note:

Firstly they stated that a person may intend a to achieve a certain result without
desiring it

And secondly Lord Lane CJ stated that:

"the jury should be directed that they are not entitled to infer the necessary
intention, unless

- they feel sure that death or serious bodily harm was a virtual certainty (barring
some unforeseen intervention) as a result of the defendant's actions and,

- that the defendant appreciated that such was the case."

Lord Lane CJ went on to state that:

“Where a man realizes that it is for all practical purposes inevitable that his actions will
result in death or serious harm, the inference may be irresistible that he intended that
result, however little he may have desired or wished it to happen. The decision is one for
the jury to reach on consideration of the evidence.”

The House of Lords approved of and applied the test with some minor modifications in
the case of Woollin [1999] AC 82.

In that case, the appellant threw his 3 month old baby son on to a hard surface. The baby
suffered a fractured skull and died. The defendant was charged with murder.

The trial judge directed the jury that if they were satisfied the defendant "must have
realised and appreciated when he threw that child that there was a substantial risk that
he would cause serious injury to it, then it would be open to you to find that he
intended to cause injury to the child and you should convict him of murder."

The jury convicted of murder and also rejected the defence of provocation.

The defendant appealed on the grounds that in referring to 'substantial risk' the judge
had widened the definition of murder and should have referred to virtual certainty in
accordance with Nedrick guidance.

Compiled and prepared by Kaysha A.C. Franklin and Ayisha R. Robb

 6

The Court of Appeal rejected the appeal holding that there was no absolute obligation to
refer to virtual certainty.

House of Lords held that was in fact not so as they substantially agreed with the Nedrick
guidelines with a minor modification being a replacement of the word “infer” with
“find”, thus seeking to simplify the language of the direction

The murder conviction was therefore quashed and substituted with a manslaughter
conviction as there was found to be a material misdirection which expanded the
mens rea of murder and therefore the murder conviction was unsafe. This case
made it absolutely clear that “substantial risk” was not enough.

CHART SHOWING PROGRESS OF LAW FROM SMITH TO WOOLLIN

 
CASE GUILTY ACT PURPOSE/WHY UNDESIRED DECISION ON
LEADING TO DID THE CONSEQUENCE HOW
UNDESIRED DEFENDANT INTENTION IS
CONSEQUENCE DO TO BE
THE ACT? ESTABLISHED
DPP v Driving off with To get away from
Policeman fell off Person intends
Smith policeman holding the policeman
car and killed by the natural &
(1961 on to car oncoming vehicle probable
consequences of
his
acts (HL).
Hyam v D put burning To frighten the Death of lady’s Enough that D
DPP newspaper through woman who lived two foresaw that his
(1975) letterbox in Children actions were
the house highly probrable
to cause death or
gbh (HL).
R v Firing live bullet Shooting contest Death of stepfather Jury to ask
Moloney themselves:
(1985) (1) Was death or
gbh the natural
consequence of
D’s act? And
(2) Did the D
foresee this?
If yes to both
questions, then
can
infer intention
(HL).
R v D threw concrete Intended to block Death of taxi The greater the
Hancock block on to the road used by driver probability of a
and motorway non-striking consequence
Shankland miners occurring, the
(1986) more likely it
was foreseen,
and the more
likely it was
foreseen the
more likely it
was intended.
Foresight of
consequences is
only evidence of
intention (HL).

Compiled and prepared by Kaysha A.C. Franklin and Ayisha R. Robb

 7

R v D put petrol bomb D wanted to Child burned to If jury satisfied

Nedrick through letterbox frighten the owner Death that D recognised
(1986) of the house that death or sbh
would be a
virtually
certain result of
his act, (barring
some unforeseen
circumstance)
then they may
infer that D
intended to cause
that result, but
not
obliged to do so
(CA).
R v D set fire to a To destroy flat Death of child Judge failed to
Scalley house explain that if
(1995) jury
satisfied that D
did
see death or
serious
injury as
virtually
certain, then
could
infer intention
but
did not have to
(CA).
R v Lost temper and Frustration at Death of baby Jury should be
Woollin threw baby onto baby directed
(1998) hard surface crying according
to the Nedrick
“virtual
certainty”
test to find
intention.
Substantial risk
is not enough
(HL).

In a decision called R v. Scalley (1995), a case with facts very similar to Nedrick, the
jury convicted the defendant of murder (having been given the Nedrick directions) but
this was quashed by the Court of Appeal because the jury should have been directed that
they could, but did not have to, convict the defendant of murder if they believed that he
had the necessary foresight.

The recent case of R v. Matthews and Alleyne (2003), appears to contradict the decision
in Scalley.  The Court of Appeal upheld convictions for murder despite the direction
given by the trial judge equating foresight of consequences with intent.  The defendants
had pushed a man off a bridge into a river and he drowned. The defendants knew that he
could not swim but none the less claimed in court that they had not intended to kill him. 
The judge directed the jury that if “drowning was a virtual certainty and they [the
defendants] appreciated that then they must have had the intention of killing him.” 

Note that the dicta in Nedrick/ Woolin remain the law when determining oblique
intent.

Compiled and prepared by Kaysha A.C. Franklin and Ayisha R. Robb

 8

It is clear that the law with regard to foresight of consequences and intent is likely to be
developed further as relevant cases reach the highest courts of appeal.  The question of
whether the jury may find, or are bound to find intent, from evidence of consequences
being virtually certain, appears still to be undecided. 

What does appear to be clear in this area of the criminal law is that foresight of
consequences does not necessarily equate to intent, and that foresight of consequences is
merely evidence from which the jury may find intent (Woollin 1999) and intent can only
be found if the consequences were a “virtual certainty” of the defendant’s actions and
the defendant realized this (Nedrick 1986 and Woollin 1999). 

RECKLESSNESS

In general terms being reckless refers to the taking of an unjustified risk.

The term in law however has given rise to much difficulty, and the issue of whether the risk
taken was justified or unjustified is seemingly irrelevant.

Much like the definition of oblique intention, what has plagued the courts as it relates to
recklessness, is whether a subjective or an objective test should apply.
 
In the context of criminal damage, originally the leading case in this area of R v Cunningham
held that a subjective test applied:

R v Cunningham [1957] 2 QB 396 (Court of Appeal)-

The appellant ripped a gas metre from the wall in order to steal the money in the meter. This
caused gas to escape. The gas seeped through small cracks in the wall to the neighbouring
property where his future mother-in-law was sleeping and was poisoned by the gas. He was
charged under s 23 of the Offences against the Person Act 1861 which provides 'Whosoever
shall unlawfully and maliciously administer to or cause to be administered to or taken by any
other person any poison or other destructive or noxious thing, so as thereby to endanger the life
of such person, or so as thereby to inflict upon such person any grievous bodily harm, shall be
guilty of felony ...' The trial judge directed the jury that malicious meant wicked.

The jury convicted the defendant and he appealed.

Held:

Malicious means 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 forsees 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.

 This was followed in Briggs [1976] 63 CAE 215 where it was stated that “A man is reckless in
the sense required when he carries out a deliberate act knowing that there is some risk of damage
resulting from the act but nevertheless continues in the performance of the act.”

However, the subsequent case of Parker (1976) 63 CAS 211 added an objective element to

Compiled and prepared by Kaysha A.C. Franklin and Ayisha R. Robb

 9

actual knowledge of the accused the test to include closing one's eyes to an obvious risk. These
cases were reviewed by the Court of Appeal in Stephenson where it was held a subjective test
applied: 
 
 
Stephenson [1979] QB 695   CA-

The appellant was homeless and schizophrenic. He found refuge in a haystack where he made a
hollow and tried to go to sleep. He was cold so he lit a fire inside the hollow to keep himself
warm. Inevitably the whole haystack caught fire and he ran off and was picked up by the police.
The defendant contended that he never thought of the possibility of the whole stack catching
fire. At his trial a consultant psychiatrist gave evidence that he had a long history of
schizophrenia and this would mean that the defendant was quite capable of lighting a fire in a
haystack without ever thinking of the danger involved. The trial judge directed the jury:

"(1)First you perhaps want to ask yourselves whether in lighting the fire the accused
carried out a deliberate act, and the answer to that one thinks must be yes, because he
has said that he lit the fire.

(2) Secondly, you may want to ask yourselves whether you regard it or not as an
obvious fact that there was some risk of damage, and when the act is the act of lighting
a fire inside a straw stack, you may have little difficulty in dealing with the question
whether it is an obvious fact that there is some risk of damage.

(3) Did he then do that (i)knowing or (ii)closing his mind to the obvious fact, in the case
from which these words are taken...... there are all kinds of reasons which make a man
close his mind to the obvious fact — among them may be schizophrenia, that he is a
schizophrenic."

The jury convicted the defendant.

On appeal, the defendant’s conviction was quashed. The Court of Appeal held that there was a
mis-direction. The test should be entirely subjective, if the defendant did not foresee a risk
of damage he should not be liable.

However, the objective test was followed in:

MPC v Caldwell [1982] AC 341 House of Lords –

The appellant had been working at a hotel and had a grudge against his employer. One night
after consuming a large quantity of alcohol he went to the hotel and started a fire. The hotel had
10 guests sleeping in the hotel at the time. Fortunately the fire was discovered and extinguished
early and no person were actually harmed. The appellant was convicted of aggravated criminal
damage under s.1(2) Criminal Damage Act 1971 and appealed in relation to the required level of
recklessness. The defendant argued that he had given no thought as to the possible
endangerment of life due to his intoxicated state. The House of Lords upheld his conviction and
formulated what has become known as Caldwell recklessness, which is that :

A person is reckless as to whether property is destroyed or damaged where:

(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 he 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.

Compiled and prepared by Kaysha A.C. Franklin and Ayisha R. Robb

 10

 
 
Caldwell recklessness radically altered the law and received widespread criticism. The tension
between subjective and reckless tests continued. Each test being problematic.

- The difficulty with a subjective test was that it is based entirely on the defendant's state
of mind and it is for the prosecution to prove that the defendant did foresee a risk of
harm. It is difficult to prove a state of mind. It allows too many defendants to escape
liability by simply claiming they did not foresee a risk.

- However, Caldwell recklessness is capable of causing injustice as it criminalizes those

who genuinely did not foresee a risk of harm including those who are incapable of
foreseeing a risk as the following case illustrates:
 
Elliott v C [1983] 1 WLR 939

The defendant was a 14-year old girl of low intelligence who had started a fire in a shed. She
had poured white spirit on the floor and set it alight. The magistrates applied the test laid down
in R v Caldwell but inferred that in his reference to "an obvious risk" Lord Diplock had meant a
risk which was obvious to the particular defendant. They acquitted the defendant because they
found that the defendant 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 her if she had thought about the matter. The prosecution appealed by way of
case stated.

Held: Appeal allowed.

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.
 
In addition to causing injustice other criticisms of Caldwell reckless were that:
 
 The test was difficult for juries to understand and that,
 Having an objective test blurs the distinction between negligence and recklessness 

There was however a return to the subjective test in the case of R v G & R.

R v G & R [2003] 3 WLR House of Lords –

Two boys, aged 11 and 12 years, were camping without their parents' permission when they
entered the back yard of a shop in the early hours of the morning. Lighting some newspapers
they found in the yard, they left, with the papers still burning assuming they would naturally
burn out. In fact the burning newspapers set light to the wheelie bin and the fire spread to the
Co-op shop and caused over £1m of damage. They were convicted under Section 1 of the
Criminal Damage Act.

On appeal, the defendants' convictions were quashed.

The House of Lords overruled MPC v Caldwell [1982] AC 341 and held that the appropriate
test of recklessness for criminal damage is:

"A person acts recklessly within the meaning of section 1 of the Criminal Damage Act 1971
with respect to -

Compiled and prepared by Kaysha A.C. Franklin and Ayisha R. Robb

 11

(i) a circumstance when he is aware of a risk that it exists or will exist;

(ii) a result when he is aware of a risk that it will occur;

and it is, in the circumstances known to him, unreasonable to take the risk."

N.B. After the case of R v G, the question of what extent Caldwell recklessness has in criminal
law remains unanswered. What is sure however is that while the Cunningham test is the test
applied in most offences, the hybrid test laid out in Caldwell is still applicable to motor
manslaughter cases in the Commonwealth Caribbean. See case of Uriah Brown below.

RETURN TO THE HYBRID TEST (Cases of Motor Manslaughter)

One of the latest application of the recklessness principles was seen in the Jamaican motor
manslaughter case of Uriah Brown v R (2005) (PC) which seemed to have taken a similar
position to Caldwell with respect to recklessness minus the “giving any thought to it element”

The facts here was that on March 4, 2000 a serious traffic accident involving several vehicles
occurred on the road between Montego Bay and St Ann’s Bay, Jamaica. A police car being
driven by the appellant, a police officer, with another officer Sergeant Christie as passenger,
came into collision with a Nissan car travelling in the opposite direction. The collision also
involved a Ford Ranger pick-up truck driven by Michael McKennon, which was travelling in
the same direction as the appellant’s car. Both the Nissan and the police car, which was in close
contact with it after the collision, caught afire. The two occupants of the Nissan, Mark Williams
and Gregory Vassell, were killed, the appellant was seriously injured and his passenger Sergeant
Christie also sustained injuries.

The appellant was indicted on two counts of motor manslaughter. He was found guilty on both
counts and was sentenced to two years’ imprisonment with hard labour on each count, the
sentences to run concurrently.

He applied for leave to appeal to the Court of Appeal against conviction and sentence, but the
court dismissed the application. The Court of Appeal granted leave to appeal to the Privy
Council, certifying that the matter involved a point of law of exceptional public importance.

Arising of that judgment the court stated that :

“A trial judge in Jamaica should give a jury a direction in a motor manslaughter case along the
following lines, which should be tailored or adapted to meet the requirements of the particular
case:

(a) Manslaughter in this context requires, first, proof of recklessness in the driving of
a motor vehicle, plus an extra element of turpitude. That extra element is that the
risk of death being caused by the manner of the defendant’s driving must in fact
be very high.

(b) The jury should be told specifically that it is open to them to convict the
defendant of causing death by reckless driving if they are not satisfied that the
risk of death being caused was sufficiently high.

(c) Proof of reckless driving requires the jury to be satisfied:

(i) that the defendant was in fact driving the vehicle in such a manner as to create
an obvious and serious risk of causing physical injury to some other person
who might happen to be using the road or of doing substantial damage to
property;

(ii) that in driving in that manner the defendant had recognised that there was

Compiled and prepared by Kaysha A.C. Franklin and Ayisha R. Robb

 12

some risk of causing such injury or damage and had nevertheless gone on to
take the risk.

(d)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 which from their experience and observation
would be observed by the ordinary and prudent motorist.

(e)If satisfied that an obvious and serious risk was created by the manner of the
defendant’s driving, the jury must, in order to reach a finding of recklessness,
find that he appreciated the existence of the risk; but they are entitled to infer
that he was in that state of mind, though regard must be given to any explanation he
gives as to his state of mind which displaces the inference.

The court in the final analysis quashed the conviction for manslaughter and substituted one of
causing death by dangerous driving an offence which had been left to the jury as an alternative
offence under Section 30(2) of the Road Traffic Act.
As noted above, notwithstanding the decision in Uriah Brown which deals specifically with
recklessness with respect to motor manslaughter, as it relates to recklessness the test is generally
the Cunningham test, which is a subjective one.

CRIMINAL NEGLIGENCE

Negligence compares the actions of the Accused with those of a hypothetical “reasonable
person” as a negligent act is one which falls below the standards expected of a reasonably
prudent person. The state of mind of the Accused that is what he/she intended or foresaw
is irrelevant.

Negligence though very important in the civil law of tort does not feature very much in criminal
law. The majority of cases in which it features will be in statutory crimes and the most serious
offence for which it forms part of the mens rea or fault element is the common law offence of
manslaughter. In this case the negligence that is required has to be very great or gross.

One of the leading statements to describe “criminal negligence” at common law for the purposes
of establishing a test for manslaughter, may be found in the statement by Lord Hewart CJ in the
case of R v Bateman (1925) 28 Cox’s Crim Case 33:

“In explaining to jurors the test which they should apply to determine whether the negligence in
the particular case, amounted to or did not amount to a crime, judges have used many epithets,
such as “culpable”, “criminal”, “gross”, “wicked”, “clear”, “complete”. But, whatever epithet be
used or not, in order to establish criminal liability the facts must be such that, in the opinion of
the jury, the negligence of the accused went beyond a mere matter of compensation between
subjects and showed such disregard for the life and safety of others as to amount to a crime
against the State and conduct deserving punishment.”

In R v Bateman 1925 Cr. App R. 8 the Court of Criminal Appeal held that gross negligence
manslaughter involved the following elements:

1. The defendant owed a duty to the deceased to take care;

2. The defendant breached this duty;
3. The breach caused the death of the deceased; and
4. The defendant’s negligence as gross, that is, it showed such a disregard for the life and
safety of others as to amount to a crime and deserve punishment.

The House of Lords in Seymour (1983) 2 AC 493 sought to identify the mens rea for “motor
manslaughter” (negligently causing death when driving a motor vehicle). Reference was made to
Caldwell 1982 AC 341 and Lawrence 1982 AC 510 which held that a person was reckless if:

1. He did an act which in fact created an obvious and serious risk of injury to the person or
substantial damage to property; and

2. When he did the act he either had not given any thought to the possibility of there being

Compiled and prepared by Kaysha A.C. Franklin and Ayisha R. Robb

 13

any such risk or had recognized that there was some risk involved and had none the less
gone on to do it.

The conclusion was that for motor manslaughter (and, by implication, for all cases of
gross negligence), it was more appropriate to adopt this definition of recklessness.

Consequently, if the defendant created an obvious and serious risk of causing physical injury to
someone, there could be liability whether there was simple inadvertence or conscious risk
taking. It was no longer a defence to argue that the negligence had not been gross. This seemed
to blur the lines between gross negligence and recklessness.

This view was however overruled in the case of Adamako:

In Adamako 1995 1 AC 171 an anaesthesist failed to notice that a tube had become disconnected
from the ventilator and the patient died. Lord Mackay disproved Seymour and held that the
Bateman test of gross negligence was the appropriate test in manslaughter cases involving
a breach of duty, allowing the jury to consider the accused’s conduct in all the surrounding
circumstances, and to convict only if the negligence was very serious. In that case, Lord
McKay stated: The Court of Appeal had adopted the gross negligence test, without
reference to that of recklessness, as sufficient for all cases of involuntary manslaughter,
except those of motor manslaughter.

In cases of manslaughter by criminal negligence involving a breach of duty, it is a sufficient

direction to the jury to adopt the gross negligence test set out by the Court of Appeal in the
present case following R v Bateman and Andrews v DPP and it is not necessary to refer to the
definition of recklessness in R v Lawrence although it is perfectly open to the trial judge to use
the word “reckless” in its ordinary meaning as part of his exposition of the law if he deems it
appropriate in the circumstances of the particular case.

In Attorney-General’s Reference (No 2 of 1999) 2000 3AER 182, a case on corporate

manslaughter that arose out of the Southall rail crash, the Court of Appeal decided the
defendant’s subjective state of mind (i.e. whether there was conscious risk-taking) is irrelevant
and, therefore, so is the question of recklessness, leaving the objective test as the only test for
liability. Rose LJ said:

“Although there may be cases where the defendant’s state of mind is relevant to the jury’s
consideration when assessing the grossness and criminality of his conduct, evidence of his state
of mind is not a pre-requisite to a conviction for manslaughter by gross negligence.

TRANSFERRED MALICE OR TRANSFERRED MENS REA OR INTENT

Transferred mens rea, intention or transferred malice is a doctrine used in criminal law when the
intention to harm one individual inadvertently causes a second person to be hurt instead. Under
the law, the individual causing the harm will be seen as having "intended" the act by means of
the "transferred intent" doctrine.

It applies when the second “crime” is of the same basic nature as the first. Thus, if a bullet fired
at an intended, strikes an unintended victim, both offences represent personal violence and the
intent would be said to be transferred. However, if the bullet misses and breaks a valuable vase,
damage to property is a different class and the intent does not transfer as was seen in the case of:

R v Pembliton (1874) – The defendant threw a large stone at some people, he missed and broke
a window instead. He was found guilty of criminal damage but on appeal his conviction was
quashed. The Appeal Court held that since there was no mens rea for criminal damage, and the
actual mens rea was for a completely different offence, it could not be transferred to make him
liable.

See also R v Latimer (1886) where it was successfully applied. In Latimer the Defendant aimed
a blow at someone with his belt. The belt recoiled off that person and hit the victim who was
severely injured. The court held that the Defendant was liable for maliciously wounding the
unintended victim.

Compiled and prepared by Kaysha A.C. Franklin and Ayisha R. Robb

 14

This doctrine is not without controversy as seen in The House of Lords case of AG’s Reference
(No. 3 of 1994) (1997) 3 AER 936 which reversed the Court of Appeal, holding that the
doctrine of transferred malice could not apply to convict an accused of murder of a child born
prematurely to a mother who the defendant had stabbed whilst pregnant repeatedly and that died
4 months after due to its premature birth not directly from the injuries sustained during stabbing.

It was argued by the prosecution that it was possible to convict the accused on the basis of
transferred malice: that is that the accused intended to kill or cause GBH to mother and that this
could be transferred to the fetus.

The House held that at the time of stabbing the fetus was not a person in the eyes of the law and
so the present case was not a simple “transfer” but would be a double transfer that is, first from
the mother to the fetus, and then from the fetus to the child when it was born. This they felt
would be to stretch the doctrine too far.

This decision was heavily criticized on the basis that the fetus was part of the mother so that any
intention to cause grievous bodily harm (GBH) to the mother was also an intent aimed at the
fetus and therefore he should not be allowed to escape liability by arguing that he only intended
to injure the mother not the fetus.

The value of this doctrine however lies in the ability of courts to convict a person in instances
where he/she intended harm to someone inadvertently harms someone else in a similar way.
Such persons cannot escape liability simply by pleading that he did not have the necessary mens
rea to harm or kill the affected party.

COINCIDENCE OF ACTUS REUS AND MENS REA

The general rule is that, to be guilty of a criminal offence requiring mens rea, an accused must
possess that mens rea when performing the act or omission in question, and it must relate to that
particular act or omission.

However, the courts are prepared to hold that actus reus and mens rea do not always have
to coincide simultaneously, but rather that they must coincide at some point in time.

“Continuous Act principle"

It is not necessary that mens rea should be present at the inception of the actus reus; it can be
superimposed on an existing act.

See R v Miller which concerned the statutory offence of Criminal Damage, where a tramp
allowed a house to burn after his cigarette had set fire to a mattress.
 
The House of Lords found that the whole course of conduct of the accused was a continuous act
and if at any stage he had the state of mind required by the statute he was guilty.

The principle had been applied earlier in :

Fagan v MPC (1969)

The concept of a continuing act was used in this case to allow what seemed to be an omission, to
be treated as a positive act.

D was told by a police officer to bring his car closer to the curb. He obeyed the order, but in
doing so he accidentally drove his car onto the constable’s foot. But after the constable shouted
at him thereafter he allowed it to remain there.

He was convicted of assaulting the police officer in the execution of his duty and appealed on
the grounds that at the time the D committed the act of driving onto the officers foot, he lacked
the mens rea, and although he had the mens rea when he refused to remove the car, this was an
omission and the actus reus required was a positive act.

Compiled and prepared by Kaysha A.C. Franklin and Ayisha R. Robb

 15

His appeal was dismissed and the court held that driving on to the officers foot and staying there
was one continuous act, rather than an act followed by an omission - so long as the D had the
mens rea at some point during the continuing act, he was liable.

R v Kaitamaki (1985)

The same principle as in Fagan was held to apply in this case. The D was charged with rape. His
defence was that at the time he penetrated the woman, he had thought she was consenting.
However, when he realised she was not consenting he did not withdraw. The court held that the
actus reus of rape was a continuing act, and so when D realised his V did not consent (thus
forming the necessary mens rea) the actus reus was still in progress.

R v Thabo Meli (1954)

Here the courts interpreted a series of acts as one transaction. The D had attempted to kill V by
beating him over the head, then threw what he assumed to be a dead body over a cliff. V did die,
but from the fall and the exposure, and not form the beating.

There was therefore an argument that at the time of the actus reus, the D no longer had the mens
rea.

The Privy Council held that throwing V over the cliff was part of a series of acts following a
preconceived plan of action, and therefore couldn’t be seen as separate acts at all, but as a single
transaction.

The D had the required mens rea when the transaction began and therefore mens rea and actus
reus had coincided for the purposes of law.

See also R v Church (1966)

D had taken a woman V out in his van, a fight ensured and V was knocked out. D, wrongly
believing that he had killed V, threw what he thought was a dead body into the river in a panic
and it was then that V drowned.

The Court applied the Thabo Meli principle of a series of acts leading to V’s death to convict
him of manslaughter. The test here was – “ whether the jury regarded the Appellant’s behavior
from the moment when he struck her to the moment he threw into the river as a series of acts
designed to cause death or GBH.”

The difficulty arises in deciding what exactly constitutes ‘a series of acts” as it is clear that if
there was a plan as was in the case of Thabo Meli and the D is mistaken as to when during the
plan they kill the victim they are still guilty however it would as though the law extended the
doctrine to where there is no preconceived plan as in R v Church above.

See also the R v Lebrun (1992)

D argued with his wife in the street in the early hours of the morning and struck her unlawfully,
although not intending to do her really serious harm. V fell unconscious and D, in an attempt to
conceal the assault, tried to move her. V slipped from D’s grasp and struck her head on the
pavement from which she died.

D was convicted of manslaughter on the basis that the assault and the eventual act causing death
were part of the same transaction.
****END OF UNIT FOUR – PART TWO**

Compiled and prepared by Kaysha A.C. Franklin and Ayisha R. Robb