CRIMINAL LAW ( PART 2 )

By Law Teacher

2.2.1 Mens Rea – Introduction

Welcome to the second topic in this module guide – Mens Rea! ‘Mens rea’ can be loosely translated as ‘guilty mind’, and it is a vital component when attempting to assess the criminal liability of an individual.

The concept of mens rea was developed when judges began to realise that an act alone could not in fact create criminal liability, unless accompanied with a defendant’s guilty state of mind.

Today, in addition to meeting all of the actus reus elements of an offence, a defendant must be shown to have also have a guilty mind at the same time that they commit the actus reus of an offence.

For the vast majority of offences, the mens rea will be satisfied if the defendant can be shown to have intended their actions or can be considered to have been reckless as to whether a consequence would occur or circumstances would exist, following their conduct. However, in certain circumstances a defendant will satisfy mens rea if they are considered to have acted negligently and, for certain offences, known as offences of strict liability, no mens rea at all is required. Upon committing the actus reus the defendant will be found guilty.

Below are some goals and objectives for you to refer to after learning this section.

Goals for this section:

• To understand the concept of mens rea.

• To be able to identify under what circumstances a defendant will be found to have intention and when it will be found that they were simply recklessness in their conduct.

• To understand the importance of the mens rea to an offence in law.

Objectives for this section:

• To appreciate the difference between indirect/oblique intent and ulterior, basic and specific intent.

• To be able to identify the standard of care a defendant must have failed to reach in order to be found to be requisitely negligent.

• To be able to comprehend the difference between objective recklessness and subjective recklessness.
• To appreciate the reasoning behind strict liability offences and how they differ from negligence.

2.2.3 Mens Rea Lecture – Hand on Example

The following scenario is intended to test your knowledge of the issues that may arise in relation to the mens rea of an offence. The issue in this context is whether the potential defendant is likely to be found to have satisfied the required guilty mind elements of the offence. You should be aware that whilst for these purposes you are not required to consider the actus reus of these offences, it would be extremely unusual for a problem type question to require you to consider mens rea in isolation – you will ordinarily need to consider both elements of any offence collectively.

When addressing mens rea you should attempt to identify what the specific mens rea requirements for a particular offence are and then apply the mental state of the defendant to these requirements in order to see whether they are satisfied. It is often the understanding of how the mens rea elements work that is most important. If these are properly understood, an application of them to the facts is often relatively straightforward.

A similar three step approach to that taken for actus reus considerations should be followed:

• Identify the particular mens rea type from the definition of the offence (intention, recklessness, negligence, for example);
• Understand the nature of each mens rea type in relation to the offence;
• Consider whether the potential defendant’s state of mind satisfies the particular mens rea required for the offence.

1. In order to be found liable for murder a person must intend to kill or cause grievous bodily harm to a victim.

Peter hates Julie and decides that he wants to kill her. Peter’s plan is to plant a bomb on the bus that Julie uses to travel to work each morning. Peter plants the bomb on the bus on Sunday evening and detonates it at 8:15 on Monday morning from a safe distance, because he knows that Julie is always on the bus at this time. On this occasion however, Julie was not on the bus because she was taken ill on Sunday night and decided to take the day off work. When the bomb exploded, the only person on the bus was Graham, the bus driver. Graham was killed instantly by the explosion.

Does Peter satisfy the mens rea requirements for murder?

2. Criminal Damage Act 1971, s 1(1)

A person who, without lawful excuse destroys or damages property belonging to another intending to destroy or damage any such property or being reckless as to whether any such property would be destroyed or damaged shall be guilty of an offence.

When Peter’s bomb exploded, it completely destroyed the bus.

Will Peter be liable for criminal damage?

3. When Peter became aware that his attempt to kill Julie had failed, he decided that he should make a new plan to kill her. On this occasion, because he knew that Julie was a keen swimmer, Peter decided that he would introduce arsenic poisoning to the water in the swimming pool. Peter knew that other people used the swimming pool at the same time as Julie and that the poison in the water might also cause them to die, but he thought that this was a risk worth taking in order to achieve his aim of killing Julie. Peter was also aware that Julie always arrived at the swimming pool early and he hoped that, because she would be first in the pool, her death would cause the pool to be immediately closed, thereby preventing any other swimmers coming to harm. Julie usually travels to the swimming pool by bus, but because of the recent bus explosion, she has decided that it might be safer to avoid buses for a while and now walks to the pool. This means that she arrives later than usual. When she arrives at the pool, it is closed because it appears that Darren died soon after beginning to swim.

Will Peter be liable for Darren’s murder?

4. Prevention of Crime Act 1953, s 1(1)

Any person who without lawful authority or reasonable excuse, the proof whereof shall lie on him, has with him in any public place any offensive weapon shall be guilty of an offence.

For these purposes, please be aware that a police truncheon is an offensive weapon.

When Peter discovers that his second attempt at killing Julie has failed he decides that perhaps he will not be able to kill her. However, on his way home from the swimming pool, he notices a police truncheon that has been dropped by one of the police officers who were attending the swimming pool after Darren’s death. Being a generally conscientious and law abiding citizen, Peter decides that he will pick up the truncheon and return it to the nearest police station. However, before being able to reach a police station, Peter is stopped and searched in a local park by police who find the truncheon and charge him under the provisions of s. 1(1) of the Prevention of Crime Act 1953.

1. Does Peter satisfy the mens rea element of this offence?

2. Would your answer differ if Peter had decided that before returning the truncheon to the police station, he would use it to bash Julie’s head in?

1. The first step in assessing Peter’s liability is to consider the mens rea requirement for murder. In this example you are told that murder requires an ‘intention to kill or cause grievous bodily harm’. This means that intention is the only mens rea element for murder – it is a crime of specific intent.

There would be no difficulty in finding Peter liable if he had managed to kill Julie in the explosion, because he intended (or desired) her death. He did not intend to kill Graham however. There are two considerations that must be made in this context. The first is whether the doctrine of transferred malice can apply. On the face of it, it seems that this approach would be effective. However, in A-G’s reference (No 3 of 1994) [1998] AC 245 it was held that transferred malice could not apply to murder. Unfortunately, this is a situation where you would be simply required to know the answer, there being no apparently logical reason why transferred malice should not apply to murder. It seems reasonable to suggest that marks would be obtained by discussing this apparent lack of logic, whilst remembering that for a practical question, a discussion of the validity of the law should take second place to its practical application. The result in this context, is that transferred malice cannot apply for murder and Peter is not liable under this concept.

The second element for consideration is whether indirect intent will be relevant in this context. Peter probably knew the strength of the bomb and that it would cause significant damage to the bus and therefore would have been aware that anybody else on the bus may have been killed. The issue is whether he was aware that it was virtually certain that the bomb on the bus would kill somebody other than Julie. If it was another passenger who had been killed, it might be reasonable to suggest that this death was not virtually certain, because Peter could not have been virtually certain that there would be other passengers on the bus (it is likely, but this may not be enough for indirect intent). The fact that Graham was the driver and a bus would definitely have a driver means that Peter must have been virtually certain that the bus driver would have been killed or seriously injured and therefore, it is open to the jury to find that Peter intended (through indirect intent) Graham’s death. If the jury makes this finding, which seems likely on these facts, Peter will be liable for Graham’s murder.

2. The mens rea of criminal damage is intention or recklessness as to the damage. Peter did not intend the damage, and transferred malice cannot apply here because Peter’s intention related to murder, which is a completely different type of offence to criminal damage. It could be suggested that the damage to the bus was a virtually certain consequence of the explosion. Here however, such a consideration is unnecessary because of the recklessness element of the mens rea for criminal damage.

The issue here is whether Peter was reckless to the damage. Peter was undoubtedly aware of the risk of damage to the bus, yet he went on to take that risk in order to kill Julie. It is extremely unlikely that the running of this risk would be considered reasonable in these circumstances and therefore, it seems very likely that Peter would be considered reckless as to the criminal damage caused to the bus.

When answering this type of question in isolation, it is important that you discuss the approach to recklessness set out above. It would not be sufficient to simply go through the two-part test and reach the conclusion, even if the conclusion reached is the correct one.

3. The issue here, because the question refers specifically to murder is once again related to indirect intent. Here, it seems that the balance is more finely drawn than in question 1, because whilst it is possible that somebody other than Julie might swallow the poisoned water and it could even be considered probable that this would occur, it might be difficult for a jury to find, on the basis that Peter believed that Julie would certainly be the first person in the pool, that he was virtually certain that somebody else would swallow the water and die. On this basis, it seems less clear that Peter would be liable for Darren’s murder.

4. The statute here appears to be silent as to mens rea and therefore a person who has an offensive weapon with them in a public place is liable for the offence. In other words, the offence is one of strict liability. There is however a second element to the offence, in that the defendant will not be liable if they have a reasonable excuse for having the offensive weapon with them. This concept of reasonableness, whilst not directly referring to negligence suggests that a standard must be satisfied in order to make the possession of the weapon reasonable. In other words, would a reasonable person have the weapon with them in these circumstances.

1. In the first scenario, it seems that Peter’s actions and intentions could be considered to provide him with a reasonable excuse. A reasonable person is likely to consider that an intention to return the truncheon to the police would be a good reason for having it in a public place. Under this scenario, it seems likely that Peter will not be liable.
2. The second scenario differs, in that whilst Peter’s ultimate intention may be the same (to return the truncheon), he initially intends to use it to kill Julie. It seems unlikely that this would allow Peter to assert that he had a reasonable excuse for having the truncheon with him and therefore it is likely that he would be considered liable for this offence.

2.2.3 Mens Rea Lecture – Hand on Example

The following scenario is intended to test your knowledge of the issues that may arise in relation to the mens rea of an offence. The issue in this context is whether the potential defendant is likely to be found to have satisfied the required guilty mind elements of the offence. You should be aware that whilst for these purposes you are not required to consider the actus reus of these offences, it would be extremely unusual for a problem type question to require you to consider mens rea in isolation – you will ordinarily need to consider both elements of any offence collectively.

When addressing mens rea you should attempt to identify what the specific mens rea requirements for a particular offence are and then apply the mental state of the defendant to these requirements in order to see whether they are satisfied. It is often the understanding of how the mens rea elements work that is most important. If these are properly understood, an application of them to the facts is often relatively straightforward.

A similar three step approach to that taken for actus reus considerations should be followed:

• Identify the particular mens rea type from the definition of the offence (intention, recklessness, negligence, for example);
• Understand the nature of each mens rea type in relation to the offence;
• Consider whether the potential defendant’s state of mind satisfies the particular mens rea required for the offence.

1. In order to be found liable for murder a person must intend to kill or cause grievous bodily harm to a victim.

Peter hates Julie and decides that he wants to kill her. Peter’s plan is to plant a bomb on the bus that Julie uses to travel to work each morning. Peter plants the bomb on the bus on Sunday evening and detonates it at 8:15 on Monday morning from a safe distance, because he knows that Julie is always on the bus at this time. On this occasion however, Julie was not on the bus because she was taken ill on Sunday night and decided to take the day off work. When the bomb exploded, the only person on the bus was Graham, the bus driver. Graham was killed instantly by the explosion.

Does Peter satisfy the mens rea requirements for murder?

2. Criminal Damage Act 1971, s 1(1)

A person who, without lawful excuse destroys or damages property belonging to another intending to destroy or damage any such property or being reckless as to whether any such property would be destroyed or damaged shall be guilty of an offence.

When Peter’s bomb exploded, it completely destroyed the bus.

Will Peter be liable for criminal damage?

3. When Peter became aware that his attempt to kill Julie had failed, he decided that he should make a new plan to kill her. On this occasion, because he knew that Julie was a keen swimmer, Peter decided that he would introduce arsenic poisoning to the water in the swimming pool. Peter knew that other people used the swimming pool at the same time as Julie and that the poison in the water might also cause them to die, but he thought that this was a risk worth taking in order to achieve his aim of killing Julie. Peter was also aware that Julie always arrived at the swimming pool early and he hoped that, because she would be first in the pool, her death would cause the pool to be immediately closed, thereby preventing any other swimmers coming to harm. Julie usually travels to the swimming pool by bus, but because of the recent bus explosion, she has decided that it might be safer to avoid buses for a while and now walks to the pool. This means that she arrives later than usual. When she arrives at the pool, it is closed because it appears that Darren died soon after beginning to swim.

Will Peter be liable for Darren’s murder?

4. Prevention of Crime Act 1953, s 1(1)

Any person who without lawful authority or reasonable excuse, the proof whereof shall lie on him, has with him in any public place any offensive weapon shall be guilty of an offence.

For these purposes, please be aware that a police truncheon is an offensive weapon.

When Peter discovers that his second attempt at killing Julie has failed he decides that perhaps he will not be able to kill her. However, on his way home from the swimming pool, he notices a police truncheon that has been dropped by one of the police officers who were attending the swimming pool after Darren’s death. Being a generally conscientious and law abiding citizen, Peter decides that he will pick up the truncheon and return it to the nearest police station. However, before being able to reach a police station, Peter is stopped and searched in a local park by police who find the truncheon and charge him under the provisions of s. 1(1) of the Prevention of Crime Act 1953.

1. Does Peter satisfy the mens rea element of this offence?

2. Would your answer differ if Peter had decided that before returning the truncheon to the police station, he would use it to bash Julie’s head in?

1. The first step in assessing Peter’s liability is to consider the mens rea requirement for murder. In this example you are told that murder requires an ‘intention to kill or cause grievous bodily harm’. This means that intention is the only mens rea element for murder – it is a crime of specific intent.

There would be no difficulty in finding Peter liable if he had managed to kill Julie in the explosion, because he intended (or desired) her death. He did not intend to kill Graham however. There are two considerations that must be made in this context. The first is whether the doctrine of transferred malice can apply. On the face of it, it seems that this approach would be effective. However, in A-G’s reference (No 3 of 1994) [1998] AC 245 it was held that transferred malice could not apply to murder. Unfortunately, this is a situation where you would be simply required to know the answer, there being no apparently logical reason why transferred malice should not apply to murder. It seems reasonable to suggest that marks would be obtained by discussing this apparent lack of logic, whilst remembering that for a practical question, a discussion of the validity of the law should take second place to its practical application. The result in this context, is that transferred malice cannot apply for murder and Peter is not liable under this concept.

The second element for consideration is whether indirect intent will be relevant in this context. Peter probably knew the strength of the bomb and that it would cause significant damage to the bus and therefore would have been aware that anybody else on the bus may have been killed. The issue is whether he was aware that it was virtually certain that the bomb on the bus would kill somebody other than Julie. If it was another passenger who had been killed, it might be reasonable to suggest that this death was not virtually certain, because Peter could not have been virtually certain that there would be other passengers on the bus (it is likely, but this may not be enough for indirect intent). The fact that Graham was the driver and a bus would definitely have a driver means that Peter must have been virtually certain that the bus driver would have been killed or seriously injured and therefore, it is open to the jury to find that Peter intended (through indirect intent) Graham’s death. If the jury makes this finding, which seems likely on these facts, Peter will be liable for Graham’s murder.

2. The mens rea of criminal damage is intention or recklessness as to the damage. Peter did not intend the damage, and transferred malice cannot apply here because Peter’s intention related to murder, which is a completely different type of offence to criminal damage. It could be suggested that the damage to the bus was a virtually certain consequence of the explosion. Here however, such a consideration is unnecessary because of the recklessness element of the mens rea for criminal damage.

The issue here is whether Peter was reckless to the damage. Peter was undoubtedly aware of the risk of damage to the bus, yet he went on to take that risk in order to kill Julie. It is extremely unlikely that the running of this risk would be considered reasonable in these circumstances and therefore, it seems very likely that Peter would be considered reckless as to the criminal damage caused to the bus.

When answering this type of question in isolation, it is important that you discuss the approach to recklessness set out above. It would not be sufficient to simply go through the two-part test and reach the conclusion, even if the conclusion reached is the correct one.

3. The issue here, because the question refers specifically to murder is once again related to indirect intent. Here, it seems that the balance is more finely drawn than in question 1, because whilst it is possible that somebody other than Julie might swallow the poisoned water and it could even be considered probable that this would occur, it might be difficult for a jury to find, on the basis that Peter believed that Julie would certainly be the first person in the pool, that he was virtually certain that somebody else would swallow the water and die. On this basis, it seems less clear that Peter would be liable for Darren’s murder.

4. The statute here appears to be silent as to mens rea and therefore a person who has an offensive weapon with them in a public place is liable for the offence. In other words, the offence is one of strict liability. There is however a second element to the offence, in that the defendant will not be liable if they have a reasonable excuse for having the offensive weapon with them. This concept of reasonableness, whilst not directly referring to negligence suggests that a standard must be satisfied in order to make the possession of the weapon reasonable. In other words, would a reasonable person have the weapon with them in these circumstances.

1. In the first scenario, it seems that Peter’s actions and intentions could be considered to provide him with a reasonable excuse. A reasonable person is likely to consider that an intention to return the truncheon to the police would be a good reason for having it in a public place. Under this scenario, it seems likely that Peter will not be liable.
2. The second scenario differs, in that whilst Peter’s ultimate intention may be the same (to return the truncheon), he initially intends to use it to kill Julie. It seems unlikely that this would allow Peter to assert that he had a reasonable excuse for having the truncheon with him and therefore it is likely that he would be considered liable for this offence.