Learning Outcomes
This article explains the concept of mens rea (the mental element) in criminal law. It details the different states of mind required for criminal liability, such as intention (direct and indirect/oblique) and recklessness. It also briefly touches upon negligence and strict liability. Understanding these principles is essential for analysing criminal scenarios and identifying the correct offence. This knowledge will enable you to apply the relevant rules to SQE1-style multiple-choice questions concerning criminal liability.
SQE1 Syllabus
For SQE1, you are required to understand the different mental states that constitute mens rea and how they apply to various offences. You will need to differentiate between intention (direct and indirect) and recklessness, and recognise situations involving negligence or strict liability. An appreciation of transferred malice and the requirement for coincidence of actus reus and mens rea is also necessary. Your understanding will be tested through scenario-based questions requiring application of these principles.
As you work through this article, remember to pay particular attention in your revision to:
- the meaning of direct intention (aim or purpose)
- the test for indirect (oblique) intention (foresight of virtual certainty)
- the subjective test for recklessness (foresight of risk and unreasonable to take it)
- the distinction between specific and basic intent offences in the context of mens rea
- the principle of transferred malice and its limitations
- the requirement for coincidence of actus reus and mens rea.
Test Your Knowledge
Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.
- What is the legal test for indirect (oblique) intention as established in R v Woollin?
- True or false? Subjective recklessness requires the defendant to foresee a risk, even if that risk was not objectively unreasonable to take.
- Which legal principle allows the mens rea intended for one victim to be applied when the defendant accidentally harms another victim instead?
- What is the term for the principle requiring the actus reus and mens rea to occur at the same time?
Introduction
For most criminal offences, the prosecution must prove not only that the defendant (D) committed the prohibited act or caused the prohibited result (actus reus), but also that D possessed a particular state of mind at the time – the mens rea, or ‘guilty mind’. The mens rea required varies depending on the specific offence. Understanding the different types of mens rea is fundamental for determining criminal liability. This article explores the core concepts of intention, recklessness, negligence, strict liability, transferred malice, and the principle of coincidence.
Key Term: Mens Rea The mental element required for a particular crime. It refers to the state of mind of the defendant at the time of the actus reus, such as intention or recklessness.
Intention
Intention represents the highest level of culpability and is the required mens rea for the most serious offences, such as murder. It can be divided into two forms: direct intention and indirect (or oblique) intention.
Direct Intention
This is the most straightforward form of intention. It refers to the situation where the consequence is the defendant’s aim or purpose. If D acts with the specific objective of bringing about the prohibited result, they have direct intention. Motive (the reason behind the action) is generally irrelevant to whether direct intention exists.
Key Term: Direct Intention Where the consequence is the defendant's aim, purpose, or desire.
Worked Example 1.1
Ahmed wants to damage his neighbour’s prize-winning roses because he is jealous. He waits until nightfall, goes into his neighbour’s garden, and deliberately cuts the heads off all the roses with secateurs. Does Ahmed have direct intention to cause criminal damage?
Answer: Yes. Ahmed’s aim and purpose was to damage the roses. He deliberately acted to achieve that consequence. Therefore, he possesses direct intention for the mens rea of criminal damage.
Indirect (Oblique) Intention
Sometimes a defendant may argue that the prohibited consequence was not their primary aim, but merely an unintended side-effect of achieving another goal. In such cases, the jury may still find intention if the test for indirect (or oblique) intention is met.
The leading case is R v Woollin [1999] AC 82. The House of Lords established a two-part test. The jury should be directed that they are not entitled to find the necessary intention unless they feel sure that:
- The result (e.g., death or serious bodily harm) was a virtually certain consequence of the defendant's actions; and
- The defendant realised that the result was a virtually certain consequence of their actions.
If the jury finds both parts are satisfied, they may (but are not required to) find that the defendant intended the result.
Key Term: Indirect (Oblique) Intention Where the result was not the defendant's primary purpose but was a virtually certain consequence of their actions, and the defendant realised this.
Worked Example 1.2
Ben places a bomb on a cargo aeroplane, timed to explode mid-flight over the sea, with the aim of destroying the cargo for an insurance claim. Ben knows the pilot will inevitably be killed when the bomb explodes, but killing the pilot is not his aim. The bomb explodes, killing the pilot. Does Ben have the mens rea for murder?
Answer: Ben has direct intention to destroy the cargo (criminal damage). He does not have direct intention to kill the pilot. However, the pilot's death was a virtually certain consequence of the bomb exploding mid-flight. If Ben realised this virtual certainty, the jury may find he had indirect intention to kill, satisfying the mens rea for murder.
Exam Warning
Remember that foresight of virtual certainty is evidence from which a jury may infer intention; it is not intention itself. An SQE question might incorrectly suggest that foresight of virtual certainty automatically equals intention. This is legally incorrect according to Woollin.
Recklessness
For many offences, it is sufficient for the prosecution to prove that the defendant was reckless, which represents a lower level of culpability than intention. The legal test for recklessness is subjective.
Subjective Recklessness (Cunningham / R v G)
The current test for recklessness was established in R v G and Another [2003] UKHL 50, which overruled the previous objective test from MPC v Caldwell and effectively confirmed the earlier subjective test from R v Cunningham [1957] 2 QB 396.
A defendant acts recklessly with respect to:
- A circumstance – when they are aware of a risk that it exists or will exist; or
- A result – when they are aware of a risk that it will occur; and
- In the circumstances known to them, it was unreasonable to take that risk.
The key element is the defendant's subjective awareness of the risk. It does not matter if the risk would have been obvious to a reasonable person if the defendant genuinely did not foresee it (perhaps due to age or lack of intelligence). However, the decision to take the risk is judged objectively – was it unreasonable in the circumstances known to D?
Key Term: Recklessness (Subjective) Where the defendant foresees a risk of the prohibited consequence occurring (or circumstance existing) and unreasonably goes on to take that risk.
Worked Example 1.3
Chloe throws a heavy stone off a bridge onto a motorway below, aiming to hit a road sign. She doesn't intend to hit any cars, but she is aware there is a risk that she might. The stone hits a car, smashing the windscreen. Is Chloe reckless as to causing criminal damage?
Answer: Yes. Chloe was subjectively aware of the risk that throwing the stone might cause damage to a vehicle. It was objectively unreasonable for her to take that risk (as there is no social utility in throwing stones at motorways). Therefore, she possesses the mens rea of recklessness required for criminal damage.
Negligence
Negligence generally plays a limited role in defining mens rea for criminal offences, though it is relevant for some, such as gross negligence manslaughter (see separate materials). It involves falling below the standard of care expected of a reasonable person in the same situation. Unlike recklessness, it does not require the defendant to have foreseen any risk; the focus is on what the reasonable person would have foreseen or done.
Strict Liability
Some offences, known as strict liability offences, do not require any mens rea at all regarding one or more elements of the actus reus. Liability is imposed simply upon proof that the defendant committed the prohibited act. These are often regulatory offences (e.g., certain road traffic offences like speeding, or food safety regulations). The justification is usually public protection. Defences based on mistake are generally unavailable for strict liability elements.
Transferred Malice
Sometimes a defendant aims to commit a crime against one target (person or property) but, by mistake, harms another target instead. The doctrine of transferred malice allows the defendant's mens rea (the 'malice') intended for the original target to be transferred to the actual victim or property harmed.
Key Term: Transferred Malice A legal doctrine where the mens rea directed towards one person or object can be transferred to the actual person or object harmed, provided the actus reus committed is the same type of crime as that intended.
In R v Latimer (1886) 17 QBD 359, D aimed a blow with a belt at one person in a pub but accidentally struck another person (V). His intention to strike the first person was transferred to V, making him liable for the battery against V.
However, the doctrine has limits. Malice cannot be transferred between different types of offences. In R v Pembliton (1874) LR 2 CCR 119, D threw a stone intending to hit people but missed and broke a window. His intention to cause harm to people could not be transferred to the property damage, so he was not guilty of criminal damage based on transferred malice (though he might have been reckless).
Coincidence of Actus Reus and Mens Rea (Contemporaneity)
A fundamental principle is that the actus reus and mens rea must coincide in time. The defendant must possess the required guilty mind at the precise moment they commit the guilty act.
However, the courts have developed ways to establish coincidence even when the actus reus and mens rea do not perfectly align chronologically:
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Continuing Act: If the actus reus can be regarded as a continuing act, it is sufficient if the defendant forms the mens rea at some point while the act is ongoing. In Fagan v MPC [1969] 1 QB 439, D accidentally drove onto a police officer's foot (no mens rea at this point) but then deliberately refused to move the car (mens rea formed). The court held the driving onto the foot and remaining there was a continuing act, and liability for battery arose when the mens rea was formed during that continuing act.
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Single Transaction: A series of acts may be treated by the court as part of a single transaction. If the defendant has the required mens rea at some point during that transaction, even if not at the exact moment the actus reus is completed, coincidence can be established. In Thabo Meli v R [1954] 1 WLR 228, the defendants attacked V intending to kill him. Believing him dead, they rolled his body off a cliff to fake an accident. V survived the initial attack but died of exposure later. The Privy Council held that the attack and disposal of the body were part of one transaction, and the initial intention to kill covered the entire sequence of events, leading to a murder conviction.
Key Term: Contemporaneity (Coincidence) The principle that the actus reus (guilty act) and mens rea (guilty mind) must occur at the same time for criminal liability to be established.
Key Point Checklist
This article has covered the following key knowledge points:
- Mens rea refers to the mental element required for a crime.
- Direct intention is the defendant's aim or purpose.
- Indirect (oblique) intention involves foresight of a virtually certain consequence (R v Woollin).
- Recklessness requires subjective foresight of an unjustified risk (R v G).
- Negligence involves falling below the standard of a reasonable person.
- Strict liability offences require no mens rea for at least one element of the actus reus.
- Transferred malice allows mens rea to be transferred between similar offences but not different types of offences.
- The actus reus and mens rea must generally coincide in time (contemporaneity), but the continuing act and single transaction doctrines can establish coincidence where they do not perfectly align.
Key Terms and Concepts
- Mens Rea
- Direct Intention
- Indirect (Oblique) Intention
- Recklessness (Subjective)
- Transferred Malice
- Contemporaneity (Coincidence)
