The Mental Element of a Crime
In addition to meeting all of the actus reus elements of an offence, a defendant must be shown to have a guilty mind at the same time that they commit the actus reus. This guilty mind, or mental element, is known as mens rea.
For the vast majority of offences, 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.
There are therefore four broad areas of mens rea that will be considered:
- Strict Liability (although this must be considered inside mens rea, it arises, as mentioned, where no mens rea is required.
Intention is a word that is often given its ordinary meaning. That is, a defendant will be found to have intended a consequence if they desire the consequence to follow their actions. This is the case irrespective of whether the consequence is very likely or extremely unlikely to occur. This means that a defendant who intends to shoot another person will be liable regardless of whether their intended victim is standing next to them or is several hundred metres away. The defendant has the intention to kill whatever the outcome of their actions and can be liable for attempted murder, for example, even if they do not manage to shoot the victim.
The definition of intention (often defined as direct intent) is not limited to this simple definition. This is because a defendant can be considered to intend a consequence of their actions if the consequence is one that the defendant does not want but which he knows is virtually certain to occur as a result of their actions. This is known as indirect or oblique intent.
Unfortunately, the definition of indirect or oblique intent is far from clear. It was, for a time considered that intention could be found, if the consequences of the defendant’s actions were probable or even possible (Hyam v DPP  AC 55). However, in R v Moloney  1 AC 905 it was held that the jury should ask two questions where the issue of intention arose.
Firstly, the jury should ask themselves whether they thought that the consequence was a natural and probable consequence of the defendant’s actions. If this was the case, the question should be asked as to whether the defendant foresaw the consequence as a natural consequence of their actions. If the answer to both of these questions was yes, the jury could (but did not have to) imply intention on the part of the defendant.
The difficulty with this approach, is that the notion of a ‘natural and probable consequence’ is not clear. There is possibly a large variation between what one jury member might consider natural and probable and what another jury member might consider it to be. The result of this was that in R v Nedrick  1 WLR 1025, it was held that the definition in Moloney was too wide and uncertain and therefore, the wording of the question should be whether the jury thought that the consequence was virtually certain. The difficulty with this judgment was that it was a Court of Appeal judgment, whereas Moloney was a House of Lords judgment and therefore, trial judges were in a position whereby they could reasonably use both definitions.
The current position in respect of indirect intent was set out by the House of Lords in R v Woollin  AC 82. In this judgment, the first part of the Nedrick approach was followed and it was held that the jury should consider whether the result of the defendant’s actions were virtually certain to occur and, if so, whether the defendant was aware that they were virtually certain to occur. If the answer to these questions was yes, the jury could find the defendant intended their actions. This altered the position in Nedrick slightly where it had been held that the jury could imply intention. In other words, the jury would not be required to place intention in the mind of the defendant by implying that it existed, they could simply find that the defendant intended the consequences of their actions.
Whilst the direction that is to be given to a jury appears clear, difficulties still exist. In the first instance, it was made clear in Woollin that the judgment applied specifically to murder. Therefore, it may still be the case that the wider Moloney definition could be applied to offences other than murder; wounding with intent to cause grievous bodily harm contrary to section 18 of the Offences Against the Person Act 1861, for example.
Overview of the current position
- In most cases, the facts of the case will be sufficiently clear. Therefore, where it is clear that the defendant desired the consequences of their actions, it will not be necessary to provide the jury with a detailed direction.
- Where the position is such that the defendant may not have desired the consequences of their actions, the jury should be provided a detailed direction.
- The jury should be directed that it is able to find that the defendant intended the consequences of their actions if the consequences were virtually certain and the defendant knew that they were virtually certain. Even if the jury is satisfied that this is the case, they are not required to find that the defendant intended their actions.
It can be seen that the area of intention gives a great deal of scope for discussion. It is therefore important that you are aware of the difference between the two main types of intention and extremely important that you are able to trace the development of indirect intent through the various judgments. The fact that Woollin only applies specifically to murder means that it is theoretically possible that the other approaches are relevant to other offences. You must be careful to identify that the consideration is only necessary where the offence is one that requires intent. Where recklessness satisfies the mens rea it will not be necessary to consider the notion of indirect intent.
Ulterior Intent, Basic Intent and Specific intent
It was mentioned above that a consideration of indirect or oblique intent is only really necessary where the offence is one that requires intention as the mens rea element. These types of offences are known as offences of specific intent – only intention will suffice. Where the mens rea is satisfied by intention or recklessness, the offences are defined as offences of basic intent.
Offences of ulterior intent are those that require proof of a second mens rea element. For example, section 9(1)(a) of the Theft Act 1968 provides that a person is guilty of burglary if he enters a building or part of a building as a trespasser, with intent to (steal anything in the building, inflict grievous bodily harm on any person within the building or commit unlawful damage to the building or anything within it) (s. 9(2)).
The first mens rea element of burglary therefore is that the defendant enters the building as a trespasser. The defendant must be found to know that they are entering as a trespasser or at least foresee a risk that they are doing so (intention or recklessness). Satisfying this mens rea element is not enough however, because it is also necessary to show that the defendant intended to commit one of the additional offences (stealing, inflicting grievous bodily harm or cause unlawful damage). This additional mens rea element is the ulterior intent that must be proven.
Whilst it is unlikely that you will be required to consider ulterior intent as a separate concept in an examination. You should however, always consider whether there are additional mens rea elements for particular offences that you are faced with and make sure when considering these offences that you address all of the separate mens rea elements in turn. This is particularly important for practical questions. It would not be possible, for example to find a person liable for burglary under section 9(1)(a) of the Theft Act 1968 if they entered a building intending to steal, but did not reasonably foresee the risk that they were trespassing. Conversely, if they enter knowing they are trespassing, but do not enter intending to steal, even if they do steal, they cannot be found liable under this section. They will not satisfy the mens rea of this section, and therefore you must consider some alternative type of liability (section 9(1)(b) covers this type of circumstance).
Summary on Intention
- Intention usually occurs where a defendant desires the consequences of their actions.
- Indirect Intent may be found where the defendant does not desire the consequences of their actions, but these consequences are virtually certain and the defendant knows that they are virtually certain.
- Specific intent refers to offences where intention is necessary to satisfy mens rea.
- Basic intent refers to offences where either intention or recklessness will satisfy mens rea.
- Ulterior intent refers to offences where an additional it is necessary to show that the defendant intended to do something in addition to the basic mens rea of the offence.
The narrow definition of intention means that it is often difficult to show that a defendant intended the consequences of their actions. This difficulty is addressed by recklessness.
The definition of recklessness differs in concept significantly from that of intention, in that the word is never given its ordinary meaning. The ordinary meaning of this word could be considered as ‘carelessness’ or ‘dangerous’ – the legal definition is far more specific than the ordinary meaning.
Where the definition of recklessness is similar to intention is that it is also somewhat unclear as to what the proper definition should be. In a general sense, it refers to a defendant’s unjustified risk taking. It is the degree of this risk taking and the defendant’s awareness of the risk that has caused the issues surrounding the definition.
This type of recklessness was initially set out in R v Cunningham  2 QB 396 and is therefore often described as Cunningham recklessness. In order to satisfy this type of recklessness, a defendant must be aware that a risk exists or will exist, or that result will occur or that there is a risk that it will and, in the circumstances known to the defendant, they unreasonably go on to take the risk.
This approach means that a defendant must foresee a risk or result and unreasonably go on to take the risk. The position is therefore subjective, not only on the foresight of the risk, but also on the reasonableness of the defendant’s actions. However, as will be discussed below, this is not entirely the case. It is true that a defendant who may be aware of a risk, but can be considered justified in taking it will not be considered reckless. A surgeon carrying out a dangerous operation, knowing that the patient may die from the treatment, but also knowing that the patient will die if the operation is not carried out. The risk is known and significant, but it is a reasonable one to take. It is also the case that at the opposite end of the scale is a person knows that one in a thousand cans of baked beans is poisonous, but decides to offer them for sale anyway. The risk of harm to a purchaser may be slight, but it would be unreasonable for the defendant to take even this small risk and the defendant would be reckless. The result is that a greater degree of risk can be tolerated where the justification for running it is greater.
Despite the test being described as subjective, it is clear that a defendant will ordinarily attempt to assert that they were unaware of the risk that they were taking. In this context, whilst the question is it one of whether the jury believes the defendant, in a practical sense, the question is whether the members of the jury believe that they would have been aware of the risk in the defendant’s circumstances. In other words, whether the defendant ought to have been aware of the risk as a reasonable person might. This approach clearly makes the test closer to an objective one. It could be suggested therefore, that the subjective element will only be relevant where the defendant differs in some way from an ordinary reasonable person.
In R v Stephenson  QB 695, for example, the defendant had a mental disorder and therefore their subjective view of risk was significantly different from a reasonable person and in R v G  1 AC 1034, the defendants were children and therefore were not capable of appreciating the risk of lighting a fire in a pile of straw in order to keep warm.
It is important to note that a defendant cannot avoid liability by deliberately closing their mind to a risk (R v Parker  1 WLR 600). This is because, the view is taken that in order for a defendant to close their mind to a risk, they must first be aware of the risk that they are avoiding. This is the case even if the defendant asserts that they were unconsciously taking the risk, if they can be shown to have been aware of the risk at some time in the past. A person who is late and pushes their way through a crowd in order to catch their train, may not be consciously aware that their actions could cause a person they push to fall and be injured. This is because the defendant is so intent on catching the train that they give no thought to the risk of the consequences of their actions. However, they may, and probably would, have previously been aware that pushing through a crowd could cause injury and therefore would be considered to subjectively have been aware of the risk of the actions and would, as a consequence of this subjective previous knowledge, be reckless to the harm caused.
On the basis of above, it could be considered that where a risk exists, it will be difficult for a defendant to demonstrate that they were unaware of it, unless some particular specific circumstances exist. Given that this is the case, the reasonableness of running a particular risk becomes extremely important.
The Reasonableness of the Risk
The test in this context is necessarily objective. Whilst the test is set out in terms of the defendant’s perception of reasonableness, it is of course, the jury’s view of what is reasonable that is determinative. Any other approach would allow all defendants to assert that they believed that the risk they were taking was reasonable, however objectively unreasonable it might be.
A clear example of this can be found in Chief Constable of Avon and Somerset Constabulary v Shimmen(1986) 84 Cr App R 7 where a defendant was demonstrating his martial arts skills and was aware that there was a slight risk that he may misjudge his actions and break a window. It did not matter that he was very confident in his abilities and thought that the risk was extremely slight. The fact that he was aware of the risk was sufficient to satisfy the subjective element of recklessness, the slight risk was considered objectively unreasonable and the defendant was considered reckless.
Conversely, there are certain risks that are apparent in everyday life. Walking down a street, for example, carries the risk of bumping into somebody and injuring them. This risk is slight and, in the circumstances, is considered a reasonable one to take. Therefore, despite a potential defendant being aware of this risk and therefore satisfying the subjective element of the test, the objective reasonableness element will prevent a defendant who happens to bump into somebody from being considered reckless.
For a number of years, recklessness was considered purely objectively. In Metropolitan Police Commissioner v Caldwell  AC 341 it was held that a defendant would be reckless if they foresaw a risk and went on to take it, or where a risk existed and the defendant gave no thought to the risk existing.
Although Caldwell was overruled in R v G and recklessness was returned to the previously described subjective test, it was made clear in the judgment in R v G that an objective approach could not be completely disregarded. In this judgment, it was held that Parliament had not intended the provisions of the Criminal Damage Act 1971 to apply to those who inadvertently caused damage to property and therefore, recklessness must be considered subjectively (it being remembered that the defendants in this case were both children and therefore fell within a category of those whose appreciation of risk might differ from what is ordinarily reasonable). However, it was held that it would be perfectly reasonable for Parliament to codify reasonableness and cause it to be a purely objective consideration.
Summary on Recklessness
- A defendant will be reckless if they are aware that a risk exists and go on unreasonably to take that risk.
- The defendant’s awareness of the risk is considered subjectively.
- The reasonableness of taking the risk is assessed objectively.
- Objective recklessness, whilst not being fully relevant, may be a consideration.
A discussion of the subjective/objective nature of recklessness is a common examination question. You should be aware of the objective elements of the subjective test, specifically the objectiveness element of the reasonableness of taking a particular risk. You may be asked to consider whether the test should be objective and therefore, you should take into account how much of the current test is objective (even the supposedly subjective elements). You could also consider whether there is any merit to the Caldwell definition of recklessness. It is extremely important that you understand exactly the approach that is taken with respect to the stages that are worked through in relation to each element of the test.
In certain circumstances, a defendant will have the required mens rea against one victim, but will satisfy the actus reus of an offence against a person against whom the mens rea is not satisfied. The majority of texts refer to transferred malice, but you should be aware that the Supreme Court held in R v Gnango  2 WLR 17 that the term transferred mens rea is more appropriate and accurate.
In R v Latimer(1886) 17 QBD 359, the defendant was involved in an argument with a person described as C in the judgment. The defendant swung his belt at C intending to cause him harm. The belt bounced off C and hit another person (R) causing them serious injury. When charged with an offence of maliciously and unlawfully wounding R under section 18 of the Offences Against the Person Act 1861, the defendant argued that he did not possess the required mens rea against the victim. On appeal it was held that where a defendant has the required mens rea for an offence, but injures a third party, the law holds that the malice that the defendant holds, is transferred to the inadvertent victim.
Transferred malice is limited to offences of the same type (R v Pembliton(1874) LR 2 CCR 119). Therefore, a defendant who intends to injure a victim will not be found liable if they cause criminal damage to a third party. The offence with which the defendant is charged must be of the same type as the one that the defendant had the required mens rea for.
It is unlikely that you will be given a question that is based entirely on transferred malice. However, it is an issue that you should consider when faced with a practical question. You should make sure that you do not disregard a defendant’s liability because the result of their actions is different from the one that they intended.
The definition of negligence in a criminal context is the same as that in tort. A defendant must fail to reach the standard of care that a reasonable person would take and the failure to reach this standard of care must cause harm to the victim. It could be suggested that negligence does not fall within the notion of mens rea because it does not expressly require a mental consideration on the part of the defendant. However, in this context, mens rea relates to the fault of the defendant, the fault arising when the defendant does not meet the standard that might be considered reasonable.
Save for manslaughter by gross negligence, very few offences are defined as requiring the defendant to be negligent. They are however stated in terms of the defendant failing to meet the standard that a reasonable person would meet. Section 1(1) of the Intoxicating Substance (Supply) Act 1985 provides that it is an offence to supply a substance that the defendant has reasonable cause to believe might be inhaled by a person under the age of 18. Therefore, the issue is whether a reasonable person would believe that this was the purpose of the use of the substance; a defendant who fails to satisfy this reasonable standard will be liable.
It also no defence if a defendant unreasonably makes a mistake of fact (R v King  1 QB 285). The fact that the defendant’s state of mind is, in essence, an innocent one, is not considered relevant because they failed to reach the level of belief or understanding that a reasonable person would reach.
A clear example of the importance of negligence can be found in section 1(1) of the Sexual Offences Act 2003, which provides that a person will be guilty of rape if the victim does not consent to penetration by the defendant and the defendant does not reasonably believe that the victim consented. In other words, a reasonable person would be able to assess whether a victim is consenting to penetration. Therefore, a defendant will not be guilty if a reasonable person would believe that the victim consented; failing to realise that the victim is not consenting falls below this reasonable standard and the defendant is negligent as to consent.
It can be seen that the absence of the word negligence does not mean that it is not an important concept in criminal liability. In this sense, the mens rea element is closely linked to the idea of blameworthiness. Whilst the defendant’s state of mind is not entirely relevant as an individual requirement for negligence, it is relevant in terms of the standard of consideration that a defendant must, or ought, to give to a particular set of circumstances. Failing to meet what is considered a reasonable level in respect of this standard of consideration renders a defendant potentially liable.
Strict liability offences are those types of offences where a defendant’s blameworthiness is not a relevant consideration in relation to their liability. Under these types of offences, it will not be necessary to show that a defendant possessed the relevant mens rea for at least one part of the actus reus of the offence. In R v Prince(1875) LR 2 CCR 154, for example, the defendant was charged with taking a girl under the age of 16 out of the possession and against the will of her father. It was no defence that the defendant reasonably believed that the girl was over the age of 16 – the defendant’s state of mind in respect of this actus reus element was irrelevant and therefore liability was strict. However, for the other elements of the offence, liability was not strict. It would, for example, have been a defence for the defendant to show that he reasonably believed that the father had given his consent for the taking, even if this belief was wrongly held. The reasonable belief in this context would negate mens rea.
It could be suggested that making a defendant liable when they have no guilty state of mind could have harsh results. This was a consideration that was made in Sweet v Parsley  AC 132. The facts of this judgment are not particularly relevant to its impact, but it should be noted when the case is read, that Lord Reid refers to crimes of absolute liability in judgment. From a technical point of view, the term is an incorrect one, because this term relates to crimes where a defendant can be punished even though their actions are not voluntary. For the purposes of this judgment, the term absolute liability means strict liability.
In Sweet v Parsley it was held that where statute makes it clear that mens rea is required, no issue arises and the wording of the statute should be followed. Where the statute is silent as to the requirement of mens rea, a presumption arises that Parliament did not intend make a person who lacked a guilty state of mind liable for the offence and the courts should read in words that cause mens rea to be required. The presumption of mens rea can be rebutted if some reason can be found to show that mens rea is not necessary. When attempting to read mens rea into statute, the court must go outside the words of the statute itself and look to Parliament’s intention in order to ascertain whether it was its true intention to create an offence of strict liability.
Lord Reid suggested in Sweet v Parsley that the courts may be able to draw a distinction between ‘truly criminal acts’ and ‘quasi-crimes’, the latter being acts which are not criminal in any real sense, but which, in the public interest are prohibited under penalty. No specific definition of quasi-criminal offences was given, but failing to submit a tax return on time, or driving a car without paying road tax could be considered examples of these types of offence. The courts may be more willing to impose strict liability for these quasi-crimes than they are for truly criminal offences.
The limitation on strict liability was taken slightly further in Gammon (Hong Kong) Ltd v Attorney-General of Hong Kong  AC 1, where it was held that the presumption of mens rea could only be overturned in circumstances where the statute is concerned with issues of social concern and, even if this is the case, can only be overturned if it is possible to show that the imposition of strict liability causes greater vigilance, with the effect that the act prevented by the statute is less likely to occur. In other words, not only must strict liability be Parliament’s purpose, its imposition must be for the public benefit.
It is important to recognise the difference between strict liability and negligence. Although both approaches suggest an absence of mental element, for strict liability it is not necessary for any standard or threshold to be crossed before liability arises. If the defendant satisfies the actus reus of the offence, they are liable, irrespective of whether it could be considered reasonable for them to act in the manner that they acted.
You may be asked to consider the nature of negligence and strict liability offences and to consider whether you believe that the existence of criminal liability in these types of circumstance is justifiable. For negligence, you should be aware of the impact of the term across a number of differing types of offence where the word ‘negligence’ is not directly used and consider whether liability should be adjudged against what is reasonable, or whether some stricter approach is preferable, or indeed whether the state of the defendant’s mind should be the only consideration. For strict liability, a consideration should be made as to whether the benefit to the public of strict liability offences is sufficient to allow criminal liability to arise without a blameworthy state of mind. Are the limitations placed on strict liability sufficient?