1. on.tuP
1of B
l-Haque
SaYed-U
Barrister
MENSREA
stateof mind'
whilein a certain
committed actusreus
the
that ttredefendant
must prove abstract
The prosecution of a crime'This is not some
elernent the definition
in
the'mental
Thu t*rm mens rea rcfersto wordsinclude
of everycrime'These
worcjs the chargeor clefinition
in
to specific
mentatprocess; refers
it 'dishonestly'
'sufferingquot;
'fraudulentlyquot;
or'negligentlyquot;
,reckressryquot; 'mariciousryquot;
,knowingry,,
,intentionaily,,
and so forth'
The intention a criminal
of
differsfrom crimeto crime'
intention)
mind or wrongfur intended
Mens Rea (thegr.rilty liable'a personmust have
To be criminally
fronrthat of a rapist.
comnritting tneft is differerrt wouldcausethe
a thathis actions
knowing
manner
in a reckress negtigent
and
to do wrongor have.acted
of'
resultcomPlained
TYPESOF MENSREA
mens reafor a
can constitute necessary
the
separately together
or
wrri'cr.
nrind
Thereare threestatesof
court
but sometimes
criminaIoffence'Thesearejntention'reck|essnessandnegligence.Sometimesthedefinitionofa
statesis appropriate'
whichof thesethreemental
offence make it crear
wiil
criminar
decisionsex ptaintherequirementsofthedefinitionmoreprecisely.
r INTENTION
where
intent) the typicalsituation
is
as purpose
Directintent(atsoknown
Directlntention-
actions desired'
are
of person's
the consequences a
his main aim ts
'
larticular consequence:
does t:' Oquot; ::tquot;
l n te n ti o n -w h e re a D , the
quot; .j happen. tt covers the
Ob l i q u e a n^Fr.ACrrence
, o ' *t t . . , i n n .*,,ffi .quot; ;;*quot; *quot; quot; ,o fma kingtheconSeqUencehappen.ltcover s i t i s n oi
ac, vi rtuzl l v' certai n, though
al
anvwav'
goesaheadwithhis actions
uuLquot;,and the defendant
;J',,1']*n
:**
planes'
claimon one of his
insurance
to makea fraudulent
ownerdecides
Exampre aeroprane
An
will certainly but he
die
some passengers
when it exprodes,
it knowingthat -
(a) He prantsa bomb on This is directintention
realistic'
wifi make his craimmore
this to happenas it
does not mind and wants are desired'
of the passengers)
of his actions(thedeaths
the consequences
say that he
die,although can honestly
he
passengers certainly
will
knowstlratsome - the
This is obliqueintention
(b) Alternatively,.he survived!
be delighted they alt
if
and would
does not want them to die'
vlLr. wF
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A
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SaYed-U
Barrister
i'i,i'
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2. ,'
,.,,lo,,ri;#,;#6&iffiffi,t;1quot;::*'aryi*1quot;'!{1$'J
h ;f.' itJfi::1.i.' ,,
B ar r is t eSa y e d -U l -H a q u e
r :D(.NC.,UN
2ofB
(the
consec1uences deartlrs the perssengers) not whathe planned, he nevertheless
were
o[ but knewthat
tlreywouldinevitably fromlrisactions blowing the plane.
follow in up
To requireproof that it was the cJefendant's
purposeto bring about a particular may
consequence
involveplacinga very hcavy evidential
burdenon the prosecution. surprisingly,
giventhe above
Not
prool'ofobliqueintent(ie, foresight
only rec;uires
exanlple,
criminal
law rtormally intent) opposed
to
as
P ,
directinterrt.
The cor,rrts
have statedtlratforesiglrt consequences only be evidence intention the accused
of can of if
lrappen.
knenrtlrari
tlrosc cor-rscqLlcnces
would definitely Thus it is not sufficient
that the defendant
How can a jury be directed understand
foresawa possibility a particular
nrerely of occurrence. how
to
the existence suchforesight to be ascertained?
is
of
A lineof casesdemonstrates
this:
[1961] 290,wasauthority theviewthata person
At onetime,DPPv Smrth AC for foresaw intended
and
ihr: nrrrrr=r l: r nr l
' f f O bable CO nSequen6e s O f h i S a C t S . H O We V e r ,t h i s Wa S r e v e r S e d b y P a r l i a m e n t .
rv I r stLr r
rr ur rv
ur
I
Section B of the Criminal Justrce Act /967, which now deals with how intention or foresight must be
proved,
provides:
A courtor jury in deternrining
wlrether personhas committed offence, shallnot be boundin law
(a)
a an
to inferthat he intended foresawa resultof lris actionsby reasononly of its beinga natural
and
or
probable
consequence thoseactions; (b) shalldecide thatresult
whether did intend foresee
he or
of but
from the evidence appearproperin the
drawingsuch inferences as
by reference all the evidence
to
circumstances.
neecJs be established personis not to be taken as intendingthe
a
to
where foresight
Consequently,
and probable,although
theywerenatural
because
probable
consequenccs his act sirnply
of
naluralarrd
and a jury is to
a jury nray infertlrat fronrlookingat all the evidence.
The test is therefore
subjective
was fromconsidering the evidence.
all
intenlion
decide wlrattlre defendant's
was considered the Houseof Lords.in:
foresiglrt intention by
Th'erelationship and
between
Hyan v DPP [/ 975JAC 5!
her rivalfor the affections Mr X, put burning
newspaper
of
The defendant, orderto friglrten
Mrs Booth,
in
She claimed
thatshe
houseand caused deathof two of her children.
the
through letterbox Booth's
the of
bodilyharmas a highlyprobable
deathor grievous resultof her
had noi meantto kill but had foreseen
probable
licknerJ directed jury tlratthe defendant was guiltyif she knewthat it was higlrly
the
actions.
harm.
bodily
tlratlreract woulcl
causeat leastscrious
that he did not thinkthatforesight a highdegree probability at
is
of
of
Although LordHailsham stated
LC
whichconstitiutes mentalelement--
the
all ilre sametlringas intention, it is not foresight intention
but
and
8na-P
2afB
l-Haque
Sayed-U
Barrister

3. - '':
i: . il! ,
;'
iil:l;ii:,il' r''quot;i :iT;quot;;
fi
A(Na-'/'
ofB
B ar r is t er aY ed- lUH a q u e
'
S that hi s
the P artof the defendant
Lf t
l-orcls(lly a
in rt'rttrcjcr' l-louseo[ rea for
tlre l rarm w as suffi ci entmens
/rf
' l ri g h l yl i k c l y '
ac t ior lswer e lil< e l yo r
{
t
nlurder.
contest see who
to
a shooting
Ey!pIe!9yJJ9p9*|.|L,.Thec|eferrcjantancjhisstepfathercJranka|argequantityofalcoho|a|adinner
aboutfi'rearms' hacl
and
they had a criscussion
party.A few hoursrater live
challengecl to fire a
him
stepfather
Trrecrefendant but his
won
faster.
roadand l,rre srrotgun
a diclthis and killedhis
courcr
gun'was pointing the victim'
at
who was urlaware
bullet.Tlre defendant, defendant
judgedirected jury thatthe
the
'rc The triar
withmurder.
was charged
stepfather. cjefendant as a probable
The
death or real seriousinjury
for murderif lre foresaw
rea
n-rens
the necessary
rracr
it; arrcr was corrvicted'
rre
cve, i,re dicr crcsirc
consequcrrce lrisactiorrs,
of a verdict nranslaughter'
'ot of
convictiorr substituted
and
quashecl nrurc]er
ilre
,ouse of Lorcrs mens rea'for
on appca*re injurywould be sufficient
to kiil or cause reallyserious
intent
on,rre groundarat onry deathor grievous
whether
ask themselves
the jury shourcr crirected.to
be
that
saici
Lord Briclge furtherwhetherthe defendant
murder.
of the defendant's and act'
consequence
bodiryharm was the naturar both
lf the jury answered
consequence his act'
of
harmas the naturar
bocliry
deathor grrevous
foresaw hadintended consequences
the
to inferthatthe defendant
affirmative wereentitled
they
questions the
in
of his acts.
minerswho threw a
were striking
wLR 257: The defendants
[1986]2
R v Hancockand shankrand miner
was carrying working
a
berow. struck taxithat
a
lt
ontothe motonvay to killor
a bridge
from
to blockthe road b'utnot
brock
concrete
that they only intendqd
argued
The d.efendants in--quot;
and kirecJ driver.
the statements
basisof LordBridge's
judgedirected jury on the
the
The triar
harm. done'and did the
causegrevousbodiry
consequence what was
of
bodilyharma natural
was deathor grievous of
wereconvicted
Moroney(ie, defendants
consequence?) the
and
natural
thatconsequence a as
foresee
defendarrts
murder.
that the
of Lordswho reaffirmed
was sr-rbstituted the House
by
nransraugrrter
on appeara verdictof of the defendant'
bodilyharmon the parl
to kiilor do grievous
an inte'tion were
prosccution to estabrish and intention
has foresight
between
guidelrnes tlre relationship
on
Moloney was
Lord scarmanfertthat rhe intention
expressed viewthat
the
sCarman
to misread jury.Lord
a
rikery if therewas
unsatisfactory theywere
as couldbe established
intention
conseque:.quot;u,but that
of
with foresight a
the defendantforesaw
. not to be equated
thereforeconsider whether
The iury shourd
evidence of foresight. of a consequence
greaterthe probability
to the jury that the
be explained it
consequence. should the morelikely
lt
thatit was foreseen'
and the morelikely
that it was foreseen,
of intention' as an
not
occurring, more
the
was to be regarded evidence
as
'keryrn srrort, foresight
is that it was intended.
fornrof it'
alternative
thathe only
the fire but stated
E.v[k!,igrU?f.o)ryUAclrildhadburnedtodeathinahousewherethedefendanthad,without
admitted starting
to
box.'He
bombthrough retter
ihe
warning, a petror
pur
AL'Na-f
3of8
B ar r is t er aY e d -U a q e
l -H u
S
*',r-quot;
f
quot;
-
F.

4. ;:i f
,, 1 ::it I i t :i}tl:kill*+t&&'ltsii*!lL#qts#ieiquot;':
tr ilti;i,ril
;aii.li--r4F*f
-1a-P
4of8 , '
overturned murderconviction
the
court of Appear
wanredto frighten owncr of trrehouse.The
tlre
judgelradmisdirected jurY'
the
substituted vercJict manslauglrter the
as
of
a
forajuryaboutintentinamurdercasewlrerethedefendant
Lord LaneCJ provided modeldirection
a
eonediedasaresu|t.LordLaneCJsuggestedthatwhen
act and som
dangerous
did a nranifestly jury to ask
intent,it might be helpfulfor a
wlrether defendant the necessary
had
the
determirring
fromthecJefendant's
probalcwastheconsequence resulted
wlrich
b
(1)
thentselves questions: t-low
two
thatconsequence?
act?(2) Dicjhe foresee
voluntary
cannot
rrarmwas likelyto resultfrom his act' he
ilratdeailror seriousoboity
* rf rrc cricr appreciate
not
about'
it
bring
to
intenclccj
lrave
the personkilledwas only slight'then it
that the riskto whichhe was exposing
. rf rre did, but thougrrt
the result'
ilrat he did not intend to bring about
might be easy for the jury to concrude that
recognised
time the defendant
tlratat the material
* on the o*rer hand, if ilre jury were satisfied
intervention) result
to
some unforeseen
(barring
certain
be virlually
deathor serlousbodilyharmwould
inferthat he intended kilt
to
fromwhichtheymay find it easyto
fronrhis voruntary then that is a fact
act,
that result'
any desire achieve
to
harm,eventhoughhe may not havehad
bodiry
or do serious
on to a
tquot;nlp*r and threwhis three-month-old-son
..Tlredefendant t.',i,
lost
n v woot,n t ,l
with murder'He denied
skulland died.woollinwas charged
hardsu.,ace. son sustairred fractured
a
His
virtual
the phrases'
harm.The trialjudge summedup using
that he had an intention causeserious
to
the use of
was convicted murderand appealed.against
of
risk.The defendant
and substantial
cerlainty
risk'
,theterm of substantial
to
element murder'a jury were required
in
regardto the mentar
The Houseof Lordsherdthbt, having
harm' where that simple
had intended kill or do seriousbodily
to
whetherthe defendant
determine the
that they were not entitled infer
to
directed
was not enough,the jury shourdbe further
direction cerlainresult
bodilyharmwas a virtually
unlessthey felt sureilrat deathor serious
intention
necessary
had appreciated
intervention) thatthe defendant
and
someunforeseen
(barring
actiorr
of the defendani,s
'substantial the judgehad blurred
iisk'
the jury: by usingthe phrase
thatfact.The judge had misdirected
murderand manslaughter' had in
and
and reckressness, hencebetween
and
rinebetweenintention
.ilre for murderwas
required murder'The conviction
for
the scope of ilre mentarerement
effect enrarged
quashedandaconviction.formanslaughtersubstituted.>*
harm was a virtual
feel sure that death or serious bodily
The jury may FIND intentionwhere they that
that the D appreciated
intervention) a resultof D's actionand
as
some unforeseen
(barring
certainty
suchwas the case.
was produced the Law
by
code, with a definition intention,
of
Recentdeveropments- draft criminar
a
has not yet madeit law'
conrmission longago as 1989,but Parliament
as
Affta.f
4of8
Ba rr is t er aY ed- l- H a q u e
S U
.f

5. 4: t:tr:r?' a -rt, quot;i$ir{a*i4,*Mi*fi{/B{t€*U#!-i&ait4s
:. : -. +-j.
5ofB
;*J{rarrister SaYed-Ul-Haque
I
TYPESOF INTENTION
' l i y p c so f i tttettti ol t
tJltcrior
Spccitic
t.
.,
EAS]g]!IE!]
and does not exceedthe
mens rea is intention recklessness
or
intentcrime is one wherethe
A basic any'
does not have to have foreseen
defendant
terms this means that the
actus reus. In simple +-
reus'For example:
qf the'actus
thatraiddownin the definition
or harm,beyond
consequence,
the
the criminalDamageAct 1971)'
damage(contrary s1(1)of
to
,,simpre,,offence criminar
of go
rn the the mens rea need n:t
of another'sproperty;
the damage or destruction
actus reus comprises
danrage'
beyond intention do criminal
to
an
Act 1861)'is
the Person
(contrary s20 of the offencesAgainst
to
wounding
The actusreusof maricious to do anythingmore
withoutproofof his havingintended
can be convicted
woundingand a defendant
thanwoundthe victim'
INTENT
SPECIFIC.
the actusreus'in the sense
the mens rea goes beyond
crimeis one wherein theory
intent
A specific
1971)'the
thatthedefendarrthasSonleu|teriorpurposeinnrind'Forexample: DamageAct
damage(contrarytosl(z) thecriminal
of
criminar of
rnthe,,aggravated,,offence.of to pr'operty the intention
with
causesdamageor destruction
where a defendant
offenceis committed factor
offence' differentiating
the
identicar that of the simple
to
The actusreus is armost
tife.
endangering life'
possess, endanger
to
r.rrust
,,specific,,
intentthat the defendant
is the furtheror
of the offences
bodilyharm(contrary s18
to
intentto do somegrievous
with
The actusreusof wounding havehad
mustbe shownnot onlyto
However, defendant
the
personAct 1861)is wounding. 'an
the intention do
to
Against
mens rea, in the form of
quot;specificquot;
but also a furtheror
ilre rlens rea for wounding
harm
bodilY
,semegrievous
Hencethereferencetothe,,mensreagoingbeyondtheactusreus','
A(.'Tquot;e.Yquot;
5of8
$aYed-UI-Haque
Barrister
ri-
J:;T
'; '1i:

6. v.:'-r.a-P
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BarristcrSa Yed- U Hac luc
l-
ULT E RI O R IN T E N -T
s'18OAPA1861'
Burglary'
Example:
nrcns.rca.
It meansmensreawitlrin
RECKLESSNESS
has radically
definition
risk. lts legal
taki ng an unjustified
ln ev er y c la yl a n g u a g e ' re c k l e s s n e s sn ' l e ans
form of ntens rea, so the focus is on what
that i t i s a subjective
c hangec J re c e n t y e a rs ' l t i s n o w c l e a r
in
t he def enc la n w a s th i n k i n g '
t
Recklessness
Cunningham Subjective
-
a)
,subjective appeared.
recklessness'first
terrn
(1g71the
ln R v cunningham
against
includenon-fatal.offences
Recklesslyquot;
'cunningham
offencesthat can be committed
offe,nce.s:
some CommonLaw offences'
the,person;rape;TheftAct offences' '
D when
risk?(Recklessness the sensethat the
in
lake an unjustified
Did D consciously
The Test:
therewas someris<of suchharmoccurring)
actingrealised
ill]
became
(1957)[gasmeter'neighbour
B v CrJnningham glassover rivalfor boyfriend' is
lt
lthrewbeer,and inadvertently
parmenter[1gg2l
R v savage and mightresult'
harm,atbeitof a minorcharacter'
that some physical
that she shouldhavefores;een
enough
Guilty] would have
arAc indifferent, gaven( thought' if he had there
and I
) r ^4) 17 y'r.
15 and '1'7'r'quot;o[ds,inrliffer
Pigg*(1982) [rape
regardlessquot; Guiltyon
Fv Not
not awareof possibility persisted
but
been obviousrisk (of wrong penetr:ation)
verdictsl
othergncunds majority
-
couldn't
bothindifferenttoquot;herfeelings'
rape 13 yr. ordgirrBetty,
(1-gQ4
and Kewar fioinr
R v Satnarn
Not guiltYl
care lessattitude.
Obiective
Becklesqneqs
Caldwell/Lawrence:
b)
same day) the term 'objective
(decidedon the very
rn Mpc v cardwell(rgB)and R v Lawrence[1gg2]
recklessness' aPPeared'
first
Recklessness' now very limited
are
'caldwelllLawrence
with
offences:offencesthat can be cornmitted
HL
fotlowing v G and another[2003J
R
AL?,A-f
6of8
$aYed-Ul'Haque
Barrister
*-; .i:!*i'::i'
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:quot;: ii.
. ';1i..

7. Ltquot;.
i i ...
i.
i
7Sg-60-y,
7 of B
B ar r is t er aY e d -U a c l u c
l -H
S
T lr eT es t : W astl re re a n .o b v i o u s ri s k w l ri c h Dconsci ous| ytookorunconsci ous| ytobkt
T his m eans : - [T w o l i mb s ]
thatmust obvious
[to
be
=
[serious notnegligible]'risk'
creates serious
a
anyactwhich
rimb: does
D
First
viewed]
manl[objectively
prudent
a reasonable
and
l i mb :
or
$ e co n d nr
recklessness]'
- r - ^^'.r ^aanac c t
takcnit [advertarrt
risr< nevcrthcrcss
a.c,
.a): rrasrecogrriscd sonlesucrr and the risk
beingsome suclr'risk
mincr ilre possibility th'ere
of
to
nrusteirrer not evenaddressrris
b) rre ''
recklessness] '
was obvious [inadvertent
'i
DEVELOPMENTS
RECENT
R v G and others(2003)
in
Theywentto the backof the co'op
approvar.
theirparents
,12 without
went camping
DD aged 11 and whichset fire to the shop' cause
whichset fire to a wheerie-bin
pagneil,rit some newspapers
Newport have been
Boththe judge and jury appearto
were convicted arson by a iury.
of
f1m of damage.They HL
(1982)
thatthe law requlired R v caldwett
in
app'oach
apprying objective
the
not contentwith
was foundin the preparatory
clecided, testof recklessness
the
was wrongly
caldwell
unanimously,
Herd:
Act 1971'
Damage
prior the criminal
to
workof the Law commission
Damase 1e71 respect
with
Act
1 ofthecriminal
,-rnressry themeanins section
of
within
ilil:::quot;rlo
to-
(i)acircumstancewhenheisawareofariskthatitexistsorwillexist;
it willopcur;
when'heis awareof a riskthat
(ii)a resurlt
to takethe risk'quot;
knownto him' unreasonable
and it is, in the circumstances to its RePortquot;A
by the Law commission
of the criminarcode Bit annexed
(Basedon crause1g(c) (Law Com No
and Draftcriminalcode Billquot;
and wares Vorume1: Report
code for Engrarr6
crinrinar
fl7 , APril19Bg))
MALICE
TRANSFERRED
the actusreusof the
crime,doesan act' whichcauses
rea of a particr.rrar
lf the clefendant, the nrens
wirr
one'
respects' an unintended
is
although result' some
in
the
he is guilty, pub' tool<pff nis belt
$amecrime,
with anotherman c in a
duringan argument
D, a sordier
Latimer(1g86) to v
to stril<e was transferred
c
the randrady Herd:the intention
v.
swungit at c, missedand wounded
u n d e r t h e d o ctri n e o ftra n sfe rr edm a|ice,Dwasgui|ty
arn tuP
7 of I
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Barrister
:.'quot;fj

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-
a(NC)-p lb- i l
BofS
ue
BarristerSa ye d- Ul- i- laq '
js
When |na.jjc.e not trangfe-rryl?-
crime,does an act that causesthe actus
However, the defenclant, the mens rea of a particular
witlr
if
malice.
uncJcr doctrine transferred
of
the
crinre, will not bc liable
lre
reu$of anothcr
from a pub and becameinvolved a fight.He threwa stoneat the
pemblilalt(J!ru in
D was cjcctecl
missedthem but brokethe pub windowbehindthem. Held:His
groupof men he lrad been fighting,
,,malice,' intending strikc anotherpersoncorquot;rld be transferred an intention breakthe
to
to
not
to
in
wirrdow. was ttotguiltY
D
aetuqlp
shownthat
liability be established must.be
it
principle crirrrinal tlratfor a person's to
law
It is a general in
men:lrea at thc time the actusreuswas committed in other
-
possesscci necessary
thc
the c1efendant
rule.
Tlrisis alsoknownas the contemporaneity
words'the nrustcoincicic.
two
leadto injustice, thb courtshave
and
In some casesa literaiinterpretation this rulewouldmanifestly
of
ways of findingcoincidence actusreusand roensrea (a) whenthe eventstake placeover
of
developed
a periodof time,and (b) wlreretheyconstitute coLlrse events.
of
a
ACTS
(a) CONTINUING
can coincide'
Wherethe actus reus involves continuing a latermens rea duringits continuance
act
a
See:
Fagan v MPC 119691 QB 439.
1
Kaitantaki R[1985] AC 147.
v
(b) cHAtN OF EVENTS
events(ie,a continuing
The secondway the courtshavedealtwiththe problem to consider chainof
a
is
law. lf the actusreusanfl
actusreusfor the purposes the criminal
of
seriesof acts)to be a continuing
see:
thenthereis liability'
thischainof events,
the mensrea are bolr present sometimeduring
at
Thabofvleli v R 119541 WLR 228
1
[1960]1 QB 59
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