General Principles

Lecture Notes
Mens Rea

Carol Withey – October 2023

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The mens rea of an offence
** These are basic notes – you will have to add the case facts because case facts
are required to illustrate the law you discuss. The case facts are in the full reading.

All serious crimes and most minor offences require a particular state of mind from
the defendant in relation to the elements in the actus reus. This is the mens rea of
the crime. The literal interpretation is guilty (rea) mind (mens).
The guilty states of mind:

1) In relation to the conduct element of the actus reus - this must be

‘voluntary’, meaning ‘willed’. (For some theft/fraud related offences the
conduct must also be ‘dishonest’).

2) In relation to the result element of the actus reus - intention or recklessness

to causing the result (occasionally ‘belief’ the result might occur is sufficient).

3) In relation to any surrounding circumstances in the actus reus of the

offence, recklessness, knowledge or belief.

(1) In relation to the conduct - this must be ‘voluntary’

Where the defendant’s actions are involuntary, he cannot be found guilty. Where the
defendant lacks total control and is not at fault he is referred to as an ‘automaton’
and will argue the ‘defence’ of automatism.

Hill v Baxter [1958] 1 QB 277

Kay v Butterworth [1945] 173LT 191.

(2) In relation to the surrounding circumstances, recklessness,

knowledge or belief is required

(2A) Knowledge

Knowledge means that the surrounding circumstances were in existence, and that
D’s believed this to be the case, Montila [2004] 1 WLR 3141.

(2B) Belief

Here D believes that a circumstance exists, where it is foreseen as highly likely, but
unlike ‘knowledge’, it does not have to actually exist. For some offences a lack of
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belief must be proven – so for rape it must be shown that D lacked a reasonable
belief in consent.

(2C) Recklessness

Was D aware if the risk that the SC were in existence?

(3) In relation to the ‘result’ in the AR - intention or recklessness

may be relevant guilty states of mind

(3A) Intention

Offences that can only be committed intentionally are referred to as ‘specific intent’
crimes. Offences that can be committed intentionally or recklessly are referred to as
‘basic intent’ crimes.

When trying to establish whether D had the mens rea of the offence in question, if it
is an offence that can be committed intentionally try and establish intention first. This
is because this is the most blameworthy state of mind. There are two types of
intention, ‘direct’ and ‘oblique’ which are explained below. If either type cannot be
proven, D will have to be acquitted unless the offence is a basic intent crime that
can also be committed recklessly. It is only necessary to establish one form of mens
rea. For example, if intention is proven, there is no need to consider recklessness.

How to establish intention

Try to establish direct intention first, if you cannot, try and establish oblique intention.
Please ignore the Essentials of Criminal Law textbook here, which advises you to
establish the lowest form of MR. Students who do this will not demonstrate their
knowledge of why the other types of MR cannot be established.

Pyramid – intention
Direct intention
DI It was D’s purpose to
bring about the result

Oblique intention
Barring all
unforeseen
circumstances
OI the result was
virtually certain
and D was
aware of t

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(i) Direct intention

Mohan [1976] QB 1 - Direct intention is a purpose to bring about the result required
by the actus reus of the offence.

Intention is not concerned with bad motive. D commits a crime if they intend the
result, whether or not they have a good or bad motive; motive is only relevant to
sentencing.

A (Children) (Conjoined Twins: Medical Treatment) (no.1) [2000] 2 WLR 480

There have been a few cases where D’s good motive was considered when
establishing guilt.

Steane [1947] KB 997

Gillick v West Norfolk and Wisbech AHA [1986] AC

(ii) Oblique / indirect intention.

In most cases, there will be evidence of direct (purpose) intention. However, where
there is not, if the result does occur, the court can sometimes infer that the
defendant did nevertheless intend the result. Where intention is inferred in this way,
it is referred to as ‘oblique’ or ‘indirect intention’. The usual example given is where
D detonates a bomb on a plane in order to claim on the insurance for his cargo in
the hold. The death of the crew and passengers is not the primary purpose, but it is
a subsidiary consequence of realising the primary purpose.

The case law in this area has been concerned with how likely the result must be
before intention can be inferred,. Most of the cases are murder cases, and therefore
you should be aware that the mens rea for this offence is an intention to kill or cause
grievous bodily harm.

In Hyam v DPP [1975] AC 55 - oblique intention can be established where the

result was “highly probable”, where D was aware of this.

Moloney [1985] AC 905 - oblique intention can be established where the result was
a “natural consequence” of D’s conduct. (Criticised for being more like a test of
causation)

Hancock & Shankland [1986] AC 455 - “high probability” test ( similar to Hyam v
DPP).

Nedrick [1986] 1 WLR 1025 - oblique intention can be established where barring all
unforeseen circumstances, death or grievous bodily harm was a “virtually certain”
result where D also appreciated this. The establishment of this test would allow the
jury to infer intention.

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The current test for oblique intention is the HL judgment Woollin [1998] 4 All ER
103.

The House of Lords approved Nedrick but held that the jury was entitled to find
intention rather than simply infer intention. This meant that the jury had no discretion
not to find intention.

So, the current test from Woollin has two parts and both must be established.

1) Was the result virtually certain?

Look for evidence that the result factually was virtually certain (would almost
definitely have occurred).

If the result was not virtually certain, then there is no point in discussing the second
part of the test. However, if it was virtually certain then the second test must also be
established....

2) Was D aware that the result was virtually certain?

This aspect of the test supplies the moral blameworthiness and does look at D’s
state of mind. It is not enough that D considered the risk, D must ultimately
conclude their conduct would almost certainly bring about the result.

If you can say yes to both these tests then you have established oblique intention.

Cases since Woollin

Matthews and Alleyne [2003] 2 CR App R 461 – interpreted Woollin to mean that
the jury had a discretion to infer intention (no need have to find intention).

Stringer [2008] EWCA Crim 1222

Royle [2013] EWCA Crime 1461.
Philpott, Philpott and Mosley Nottingham Crown Court, 2 April 2013.

When addressing oblique intention in a problem question (one where you are given
a set of facts and asked to discuss criminal liability), apply the test from Woollin, but
make the observation that regarding subsequent CA cases, a different approach has
been followed in practice, so when applying the law, state that the jury have the
ultimate decision of whether, if the result was virtually certain and D foresaw this,
whether this means D intended the result.

In a problem question it is only necessary to consider the current test from the case
of Woollin. In an essay question on intention the case law development would have
to be explained.

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(3B) Subjective Recklessness

If intention cannot be made out, the prosecution will try to prove that D was reckless
in relation to the result (providing of course that the offence stipulates this to be an
alternative form of mens rea – i.e. a basic intent crime).

Cunningham [1957] 2 QB 396 – the test of subjective recklessness:

(1) D took an unreasonable risk of causing the particular result

(2) D was aware that he was taking such a risk.

Other phrases indicating awareness are: ‘knew’ ‘realised, ‘appreciated’ and

‘foresaw’.

Pyramid- intention and subjective recklessness (only applies for basic intent
offences)

Direct intention
DI It was D’s purpose to
bring about the result

Oblique intention
OI Barring all
unforeseen
circumstances
the result was
virtually certain
and D was
aware of this

SR Subjective
Recklessness
D took an
unreasonable
risk of causing
the result and D
was aware of the
risk of causing
the result

Brady [2006] EWCA Crim 2413

Parker [1977] 1 WLR 600

For criminal damage (which under s.1(1) of the Criminal Damage Act 1971, can
be committed intentionally or recklessly) there used to be a different interpretation of
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‘recklessness’. This was decided by the HL in Caldwell [1981] AC 341. The HL held
that there were two types of recklessness for the offences under the Criminal
Damage Act 1971.

1) D was subjectively reckless (as above)

Or....if not,

(2) D was objectively reckless:

(a) D created an obvious (and serious) risk of damage (in other words, one a
reasonable person would have appreciated)

(b) D completely failed to consider the risk ( it did not even cross his mind).

The problem with this objective type of recklessness was that D had to be judged
against a reasonable person, but the reasonable person did not share the particular
characteristics of the defendant, which affected the ability to appreciate the risk. This
led to unfair results:

Elliott v C [1983] 2 All ER 100

This objective Caldwell type of recklessness was finally held not to be a form of
recklessness in:

G and another [2003] UKHL 50 - HL - Caldwell was wrongly decided. As is the

case with offences against the person, criminal damage and related offences require
the prosecution to establish that the defendant was aware of the risk of causing the
result. ( Cunningham subjective recklessness)

(3C) Negligence
Gross negligence manslaughter is the one crime on this syllabus that can be
committed negligently. Negligence is not usually seen as a form of mens rea as it is
concerned with how the defendant acted as opposed to what went through his mind.
Negligence regarding the result will be looked at during the topic of manslaughter.

Other aspects of mens rea

 Specific intent crimes

A crime where intention only intention to the result will suffice. ‘Recklessness’ is not
an alternative. will not suffice. E.g – murder.

 Basic intent crimes

Intention or recklessness will suffice. E.g - manslaughter, rape, s.20 OAPA 1861-
maliciously wounding or inflicting grievous bodily harm; s.47 OAPA 1861 - assault

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 accessioning actual bodily harm; assault and battery and criminal damage where
intention or recklessness is charged.

(ii) Transferred malice

This is a principle that can sometimes be relied upon when it appears that the mens
rea of the offence cannot be established. Most commonly, cases where D’s mens
rea for a crime is directed at one subject or object (A) but D actually causes the
result to a different subject or object (B). Transferred malice operates by transferring
D’s mens rea towards (A) to (B), provided the crime that results is the one that was
intended.

D A B
intended subject /object affected subject / object

Latimer [1886] LR 17 QBD 359 - Where the offence intended does result albeit to a
different person or object – D’s MR towards ‘A’ was transferred to V.

Mitchell [1983] QB 741

This principle of “transferred malice”, should be referred to as “transferred mens

rea”, given that malice is not actually required.

Pembliton [1874] LR 2 CCR 119It cannot be relied upon where the resulting
offence is not the one intended.

Transferred malice also operates in cases where the defendant intends to commit
an offence in relation to a specific object or subject, but due to a mistake of identity,
commits the offence in relation to a different subject or object. For example, where
the defendant believes that the person he shoots is Mr Brown, when in fact he
shoots Mr White.

A-G Reference (no 3 of 1994) [1996] QB 581 - The House of Lords held that the
principle of transferred malice could not be relied upon where there was a double
transfer of intention.
D stabbed woman feotus child

Strict Liability
Some offences can be proven without proving mens rea to one or more of the
elements of the actus reus. In Callow v Tillstone [1900] 83 LT 411

It is presumed that common law offences require mens rea, Lemon v Gay News
[1979] AC 617
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 For statutory offences follow the following set of questions :

Look for express words pointing to strict liability or MR. If there are none ….

Look for MR words , for example , “knowingly” and “permitting” If present, the
offence requires MR , if no...

Presume MR is required ;Sweet v Parsley [1970] AC 132, but ask whether this
presumption can be rebutted ….

Establish whether the presumption of MR can be rebutted by examining other

sections in the statute. If the presumption is not rebutted ….

Consider whether the presumption of MR be rebutted by applying the ‘Gammon’

tests Gammon v A-G of Hong Kong [1985] AC 1. The test here is that ‘truly
criminal’ offences require MR but ‘quasi criminal’ offences do not. The latter are
those that are regulatory in nature, governing the conduct of certain sections of
society (e.g. road users). Imposing strict liability is likely to deter breaches of the
law, penalties are likely to be lower, and such offences are usually concerned with
protecting the public from danger.