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Mens Rea and Its Concept

Mens rea in criminal law refers to the mental state or intent of the defendant. Most crimes require proof of mens rea. There are three main levels of mens rea: intention, recklessness, and negligence. Intention, requiring the highest degree of fault, can be direct (purposefully committing the criminal act) or oblique (committing an act knowing it will likely result in another criminal consequence). Courts have struggled to determine whether an objective or subjective test should be used to evaluate oblique intent, and what degree of probability is required to show a defendant intended a result.

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113 views3 pages

Mens Rea and Its Concept

Mens rea in criminal law refers to the mental state or intent of the defendant. Most crimes require proof of mens rea. There are three main levels of mens rea: intention, recklessness, and negligence. Intention, requiring the highest degree of fault, can be direct (purposefully committing the criminal act) or oblique (committing an act knowing it will likely result in another criminal consequence). Courts have struggled to determine whether an objective or subjective test should be used to evaluate oblique intent, and what degree of probability is required to show a defendant intended a result.

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Nawazish Ali
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© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
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Mens rea in criminal law is concerned with the state of mind of the

defendant. Most true crimes will require proof of mens rea.


Where mens rea is not required the offence is one of strict
liability. There are three main levels of mens
rea: intention, recklessness and negligence.

Intention

Intention requires the highest degree of fault of all the levels


of mens rea. A person who intends to commit a crime, can
generally be said to be more culpable than one who acts recklessly.

Intention differs from motive or desire (Per Lord Bridge R v


Moloney [1985] AC 905 Case summary). Thus, a person who kills a loved
one dying from a terminal illness, in order to relieve pain and suffering, may
well act out of good motives. Nevertheless, this does not prevent
them having the necessary intention to kill see R v Inglis [2011] 1 WLR
1110 Case summary .

Intention can be divided into direct intent and oblique intent.

Direct intent:

The majority of cases will be quite straight forward and involve direct intent.
Direct intent can be said to exist where the defendant embarks on a
course of conduct to bring about a result which in fact occurs. Eg D intends
to kill his wife. To achieve that result he gets a knife from the kitchen,
sharpens it and then stabs her, killing her. The conduct achieves the desired
result.

Oblique intent:
Oblique intent is more complex. Oblique intent can be said to exist where
the defendant embarks on a course of conduct to bring about a desired
result, knowing that the consequence of his actions will also bring about
another result. Eg D intends to kill his wife. He knows she is going to be on a
particular aeroplane and places a bomb on that aeroplane. He knows that his
actions will result in the death of the other passengers and crew of the
aeroplane even though that may not be part of his desire in carrying out the
action. In this situation D is no less culpable in killing the passengers and
crew than in killing his wife as he knows that the deaths will happen as a
result of his actions.

The courts have struggled to find an appropriate test to apply in cases


of oblique intent. In particular the questions which have vexed the courts
are:

1. Should the test be subjective or objective?


2. What degree of probability is required before it can be said that the
defendant intended the result?
3. Whether the degree of probability should be equal to intention or
whether it is evidence of intention from which the jury may infer
intention

Subjective or objective test

A subjective test is concerned with the defendant's perspective. In relation


to oblique intent it would be concerned only with whether the defendant
did foresee the degree of probability of the result occurring from his actions.
An objective test looks at the perspective of a reasonable person. Ie Would
a reasonable person have foreseen the degree of probability of the result
occurring from the defendant's actions.

It is arguable, that since intention requires the highest degree of fault, it


should be solely concerned with the defendant's perception. In addition,
intention seems to be a concept which naturally requires a subjective
inquiry. It seems somehow wrong to decide what the defendant's intention
was by reference to what a reasonable person would have contemplated.
However, originally an objective test was applied to decide oblique intent:
DPP v Smith [1961] AC 290 Case summary

This position was reversed by statute by

s 8 Criminal Justice Act 1967

S. 8 Proof of criminal intent

A court or jury, in determining whether a person has committed an offence,—

(a)shall not be bound in law to infer that he intended or foresaw a result of his actions by reason only
of its being a natural and probable consequence of those actions; but

(b)shall decide whether he did intend or foresee that result by reference to all the evidence, drawing
such inferences from the evidence as appear proper in the circumstances.

The effect of s.8 was considered in:

R v Hyam [1975] AC 55 Case summary

The House of Lords accepted a subjective test was applicable.


However, the majority decision of the House of Lords was out of line
with s.8 in that it was accepted that foresight of consequences
being highly probable was sufficient to establish intent.(Lord
Hailsham dissenting) a point which was taken and rectified in R
v Moloney [1985] AC 905

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