In Britain and other common law jurisdictions there is a saying that, actus non facit reum, nisi
mens sit rea1
“an act does not make a person guilty unless the mind be also guilty.” In other
words, simply doing something will not, in general, make a person a criminal unless their intent
was to do, or cause, a criminal act. It is this intention which often establishes mens rea (literally
the 'guilty mind') and turns the act into a crime.
Mens rea means a mental state, in which a person deliberately violates a law. Thus mens rea
means intention to do the prohibited act. These are known as mental elements in criminal
liability. Therefore an act in order to be a crime must be committed with a guilty mind, Actus
non facit reum nisi mens sit rea, is a well know principle of natural justice meaning no person
could be punished in a proceeding of criminal nature unless it can be shown that he had a guilty
In justice concept, Actus Reus represents the physical aspect of crime and Mens Rea the
mental aspect, which must be criminal and co-operate with the former. Actus reus has
been defined as such result of human conduct as the law seeks to prevent. Mens rea
which is a technical term generally taken to mean some blameworthy mental condition or
mind at fault, covers a wide range of mental states and conditions the existence of which
would give a criminal hue to actus reus. No act is per seen criminal; it becomes criminal
only when the actor does it with guilty mind.
There are three states of mind which separately or together can constitute the necessary mens rea
for a criminal offence. These are:
2. Recklessness, and
4. 3. Negligence.
Two types of intentions:
Direct intent (Purpose intent) – It is the typical situation where the consequences of a person’s
actions are desired.
Basic means direct intention – no lesser forms of punishment.
Oblique intent (Foresight intent) – It covers the situation where the consequence is foreseen by
the defendant as virtually certain, although it is not desired for its own sake, and the defendant
goes ahead with his actions anyway.
Specific means a parson can foresee that there is damage – can be decrease
An aero plane owner decides to make a fraudulent insurance claim on one of his planes.
a) He plants a bomb on it knowing that when it explodes, some passengers will certainly die
but he does not mind and wants this to happen as it will make his claim more realistic.
This is direct intention - the consequences of his actions (the death of the passengers) are
b) Alternatively he knows that some passengers will certainly die, although he can honestly
say that he does not want them to die, and would be delighted if they all survived! This is
oblique intent – the consequences (the death of passengers) were not what he planned,
but he nevertheless knew that they would inevitably follow from his actions in blowing
up the plane.
Criminal law recognizes two types of intention: direct intent and oblique (or indirect) intent. These concepts will be explored
in detail in the following sections. Over the past sixty years, the courts (and even Parliament) have attempted to explain the
concept of oblique intention.
5. R v Moloney (1985)
The defendant and his stepfather drank a large quantity of alcohol at a dinner party. A few hours
later they had a discussion about firearms, and had a shooting contest to see who could load and
fire a shotgun faster. The defendant, who was unaware the gun was pointing at the victim, did
this and killed his stepfather. Defendant was charged with murder.
Held: on appeal the House of Lords quashed the murder conviction and substituted a verdict of
manslaughter, on the ground that only intent to kill or cause really serious injury would be
sufficient mens rea for murder.
R v Hancock and Shankland 
Striking miners threw a concrete block from a bridge onto a road, where it killed a taxi driver.
Held: on appeal a verdict of manslaughter was substituted by the House of Lords who reaffirmed
that the prosecution has to establish an intention to kill or do grievous bodily harm on the part of
R v Woolling 
The defendant lost his temper and threw his three months old son on to a hard surface. His son
sustained a fractured skull and died. Woolling was charged with murder. He refused that he had
intention to cause serious harm.
House of Lord held: having regard to the mental element in murder, a jury was required to
determine whether the defendant had intended to kill or do serious bodily harm. The conviction
for murder was quashed and conviction for manslaughter substituted.
Recklessness is the taking of an unjustified risk. However, two different tests have been
developed by the courts, the result of which is that recklessness now has two different legal
meanings which apply to different offences.
The defendant knows that the risk or willing to take it and takes it deliberately. The question that
must be asked is “was the risk in the defendant’s mind at the time the crime was committed?”
This test was established in:
R v Cunningham 
The defendant had broken a gas meter to steal the money in it with the result that gas escaped
into the next-door house. The victim became ill and her life was endangered. The defendant was
charged under s23 of the Offences Against the Person Act 1861 with “maliciously administering
a noxious thing so as to endanger life”.
Court of Appeal held: that for a defendant to have acted “maliciously” there had to be proof that
he intended to cause the harm in question, or had been reckless as to whether such harm would
be caused. In this context recklessness involved the defendant in being aware of the risk that his
actions might cause the prohibited consequence.
The risk must be obvious to the reasonable man, in that any reasonable man would have realized
it if he had thought about it.
A person is reckless in the new wider sense when he performs an act which creates an obvious
risk, and when performing the act, he has either given no thought to the possibility of such a risk
Although the House of Lords stated in R v G and another that their Lordships’ definition of recklessness related specifically to
criminal damage, the Court of Appeal in Attorney General’s Reference (No. 3 of 2003)  2 Cr App R 367 later held that R v
G and another laid down general principles. In practice, it seems likely that the definition of recklessness adopted in R v G and
another will be applied to other statutory offences, unless the contrary is stated within the relevant statute.
7. arising or he recognized that some risk existed, but went on to take it. This test was established
MPC v Caldwell 
The defendant got drunk and set fire to a hotel as an act of revenge against owner. The fire was
discovered and put cut before very serious damage occurred. The defendant was convicted of
damaging property with intent to endanger life or being reckless whether life would be
endangered under s1(2) Criminal Damage Act (CDA 1971). Mens Rea required was intention or
recklessness. Even though the defendant said that he was so drunk at the time that it had never
cross his mind that he may be endangering his life, he was convicted as drunkenness cannot be a
defence to a basic intent crime.
R v Reid
The defendant was driving a car with a passenger in the front seat. He attempted to overtake
another car whilst still in the nearside lane. A taxi drivers’ rest hut protruded some six feet into
the nearside lane. The defendant was convicted of causing death by reckless driving, contrary to
s1 of the Road Traffic Act 1972.
The risk must be obvious to the reasonable prudent person; it needs not be obvious to the
Elliot v C 
The defendant and educationally subnormal 14 year old school girl had entered a neighbor’s
garden shed, poured white sprit on the floor and ignited it. The defendant then fled as the shed
burst into flames. The magistrates dismissed the charge of criminal damage on the basis that she
gave no though to the risk of damage, and that even if she had, she would not have been capable
of appreciating it. The prosecution appealed and Divisional Court, allowing the appeal, held that
this was irrelevant to the issue of recklessness. When the court in Caldwell had talked about an
“obvious” risk, they had meant obvious to the reasonable man if he had thought about it.
Negligence consists of falling below the standard of the ordinary reasonable person. The test is
objective, based on the hypothetical person and involves the defendant either doing something
the reasonable person would not do, or not doing something which the reasonable person would
It does not matter that the defendant was unaware that something dangerous might happen, if the
“reasonable person” would have realized the risk, and taken steps to avoid it.
Mc Crone v Riding 
A learner driver was convicted of driving without due care and attention despite the fact that it
was accepted by the court that he was “exercising all the skill and attention to be expected from a
person with his short experience” because he had failed to attain the required standard.
Transfer of Malice (Bad intention)
Under the doctrine of transferred malice a defendant will be liable for an offence if he has the
necessary mesn rea and commits the actus reus even if the victim differs from the one intended.
The basis for this principle is the decision of the court in:
R v Latimer (1886)
The defendant struck a blow with his belt at X. the defendant was convicted of maliciously
wounding the victim, and appealed on the ground that it had never been his intention to hurt her.
Held: tht the conviction would be affirmed. The defendant had committed the actus reus of the
offence with the necessary mens rea, ie he had acted maliciously. There was no requirement in
the relevant act that his mesn rea should relate to a named victim. Thus Latimer’s malice was
transferred from his intended to his unintended victim.
It is a general principle in criminal law that for a person’s liability to be established it must be
shown that the defendant possessed the necessary mens rea at the time the actus reus was
committed – in other words the two must coincide.
Another notable example is the offence of causing or allowing the death of a child or vulnerable adult under s.5 of the Domestic
Violence, Crime and Victims Act 2004
9. a) Continuing acts
Where the actus reus involves a continuing act a later mens rea during its continuance can
Fagan v MPC 
The defendant accidently drove his car on to a policeman’s foot and when he realized, he refused
to remove it immediately.
Held: that the actus reus of the assault was a continuing act which, while started without mens
rea, was still in progress at the time the mesn rea was formed and so there was a coincidence of
actus reus and mens rea sufficient to found criminal liability.
b) Chain of events
The second way the courts have dealt with the problem is to consider a chain of events (i.e. a
continuing series of acts) to be a continuing actus reus for the purposes of the criminal law. If the
actus reus and the mens rea are both present at some time during this chain of events, then there
Thabo Meli v R 
The defendant had taken their intended victim to a hut and plied him with drink so that he
became intoxicated. They then hit the victim around the head, intending to kill him. In fact the
defendants only succeeded in knocking him unconscious but believing the victim to be dead,
they threw his body over a cliff. The victim survived but died of exposure some time later. The
defendant were convicted of murder, and appealed to the Privy Council on the ground that there
had been no coincidence of the mens rea and actus reus of murder.
The Privy Council held that the correct view of what the defendants had done was to treat the
chain of events as a continuing actus reaus. The actus reus of causing death started with the
victim being stuck on the head and continued until he died of exposure. It was sufficient for the
prosecution to establish that at some time during that chain of events the defendants had acted
with the requisite mens rea.
10. Mens Rea Cases at a glance5
Name Case Legal Principle
Moloney (1985) D and step father were drunk.
Talking and laughing, d
phoned police, saying had
murdered step father. Had
seen who was faster at loading
and firing shotgun. Convicted
of murder but conviction was
quashed on appeal.
HOL ruled that foresight of
consequence is only evidence
of intention. Was death
consequence? Did D foresee
that consequence as being
Hancock and Shankland
Ds were miners on strike.
Tried to prevent another miner
from going work by pushing
concrete block from bridge
onto road. Block struck
windscreen and killed driver.
Omission of word “probable”
was held here to make
Guidelines are therefore no
Nedrick (1986) D had grudge against woman.
Poured paraffin through letter
box and set alight. Child died
COA told jury to ask
themselves 2 Qs – How
probable was consequence?
Did D foresee that
Woollin (1998) D threw 3 month baby
towards pram against wall.
Baby suffered head injuries
Went to the HOL, who felt
that COA’s views are not
Matthews and Alleyne (2003) D dropped victim 25 feet from It meant foresight of
11. bridge. Could not swim.
Watched him “dogpaddle” left
and v drowned.
consequence is not intention.
Rule of evidence. If jury
decides that D foresaw virtual
certainty of death or serious
injury then entitled to find
intention but do not have to do
Cunningham (1957) D tore gas meter from wall of
empty house to steal money.
Caused gas to seep into next
door where woman suffered.
Uses the word “maliciously”
to indicate mens rea required.
D must either intend
consequence or realise risk to
Commissioner v Caldwell
D had grievance against hotel
owner. Got drunk and decided
to put fire in hotel. Fire was
put out quickly, without
During 1982 and 2003, D
could be guilty of certain
offences even though he had
not realised there was a risk.
G and another (2003) Ds, 11 and 12 boys set fire to
bundles of newspapers. Threw
under wheelie bun and left.
Caught fire to shop and other
buildings, causing £1 million
HOL held that D could not be
guilty unless had realised risk
and decided to take it.
Lidar (2000) D and others asked to leave
public house. 1 shouted
something at V, doorman of
pub. V put arms in window. D
drove off. V was dragged
under rear wheel and suffered
injuries and died.
COA affirmed that
could still based on subjective
recklessness. Must be prove
manslaughter, must be shown
that D foresaw there was
highly probable risk of serious
injury ( or death) to V.
12. Sweet v Parsley (1969) Owned farmhouse to students
who were smoking cannabis.
Was not guilty as no
Even if Act does not actually
state that D must have
inferred that knowledge is
required for D to be guilty.
Latimer (1886) D aimed blow with belt at man
at pub who had attacked him.
Belt bounced off man and hit
woman face. Guilty of assault
D can be guilty if he intended
to commit a similar crime but
against different victim.
Thabo Meli v R (1954) Ds attacked man and believed
to have killed him. Pushed
body over cliff. In fact, man
survived attack but died of
exposure when unconscious at
foot of cliff.
Court had to decide whether
actus reus and mens rea were
Church (1965) D had fight and knocked out
woman. Unsuccessfully, tried
to bring her round. Thought
was dead and put in river. She
D in this case were guilty as
required mens rea and actus
reus were combined in series
Fagan v Metropolitian Police
Told by police to park by
kerb. In this, drove on
policeman’s foot without
realizing. At first, F refused to
move car. When policeman
pointed out what happened,
asked F several times to move
car off foot. Eventually, f did
Where continuing act for actus
reus and some point while act
is still going on, D has
necessary mens rea, then 2 do
coincide d will be guilty.
Under the Penal Code the mistake must be one of facts and not of law. Where, through a
mistake, a man intending to do a lawful act, does that which is unlawful, the deed and the will act
separately; there is not that conjunction between them which is necessary to form a criminal act.
But where an act is clearly a wrong in itself, and a person, under a mistaken impression as to the
facts which render it criminal, commits the act, and then he will be guilty of a criminal offence.
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