Principles of Criminal Liability Mens Rea

Lesson Objectives I will be able to identify the mens rea of a crime I will be able to distinguish between intention and recklessness I will be able to distinguish between direct and indirect intention I will be able to describe intention using relevant authority

Principle of mens rea Many crimes need actus reus and also mens rea. The mens rea is the guilty mind and is often the distinguishing factor between different crimes – e.g. section 18 and 20 of the OAPA 1861 Mens rea must be distinguished from the motive. Motive may give an indication of the mens rea, but it is generally irrelevant. Motive will only be relevant in certain crimes such as racially motivated assault. The only mens rea that you will need to know about are intention and subjective recklessness.

Intention Can either be direct or oblique (indirect) The idea that a person will be guilty of a crime if he intends to perform a criminal act is perfectly reasonable Direct intent was seen in Mohan (1976) – it was said that direct intention is a decision to bring about, so far as it lies in the defendant’s powers, the criminal consequence, no matter whether the defendant desired that consequence of his act or not Mohan (1976) – this case is an example of, and gives a definition of, direct intent

Difficulties arise when the defendant's aim is something different to the actual consequence. This is known as oblique intent; the defendant intended the act, but not the consequences – example The jury in a criminal trial must have a clear direction from the judge as to how they should decide whether the defendant had the necessary intention. The leading case on this is Woollin (1998) – sets out the ‘virtual certainty’ test for oblique intention

The court stated a two-part test to decide whether the defendant had oblique intent. This test allows the court or jury to infer intention if: A) the consequence is a virtually certain result of the act; and B) the defendant knows that this is a virtually certain consequence Matthews and Alleyne (2003) – confirms that the virtual certainty test in Woollin allows the jury to infer (draw as a conclusion) intention

Recklessness Some crimes require the lower level of mens rea of recklessness. The type of recklessness that is used is subjective recklessness. This occurs where the defendant knows there is a risk of the criminal consequence, is willing to take it and takes it deliberately. This is also difficult to establish as it requires looking at what was in the defendant's mind. The leading case on this is Cunningham (1957)

Cunningham (1957) – sets out the essential definition of subjective recklessness which is used in the mens rea of many crimes The court defined recklessness as: “being reckless as to whether such harm should occur or not (that is the accused has foreseen that the particular kind of harm might be done, and yet has gone on to take the risk of it). It is neither limited to, nor does it indeed require, any ill-will towards the person injured.”