Criminal law

MENS University of Liverpool

School of Law and Social

REA Justice

Professor Anna Carline

A.Carline@liverpool.ac.uk
 What is mens rea?
Direct intention
Intention
Indirect intention
Lecture
Overview Definition of
recklessness
Recklessness
Rise and fall of
Caldwell recklessness
Transferred malice
 What is Mens Rea?

The mental element of crime:

‘guilty’ mind (legal, not moral)

Actus Mens No
reus rea defence
 What is Mens Rea?

• Subjective mens rea: the term ‘subjective’ is used to

indicate a mens rea requirement that is looking (internally)
to the mind of D.
• Objective mens rea: The term ‘objective’ is used to indicate
a requirement that need not identify a certain state of mind
held by D; judging D by an external standard of
reasonableness (Child & Ormerod 2023: 89).
 Criminal law concerned with
wrongful behaviour
Example from Child and Ormerod
(2023: 91):
• D1 shoots V1 intending to
cause death
• D2 shoots at a shooting range
The role of target. V2 is (unknown to D)
mens rea hiding behind the target.
Both V1 and V2 are killed - D1 and
D2 have completed the actus reus
of a homicide offence.
Should both be guilty?
D1’s state of mind - their intention
to cause death - renders D
blameworthy
 Differs according to the offence

Murder Cunningham [1982] AC 566 (HL); Moloney [1985] AC 905:

an intention to kill or cause grievous bodily harm
Criminal damage s1(1) Criminal Damage Act 1971:
intending to destroy or damage [property belonging to
another] or being reckless as to whether any such property
would be destroyed or damaged
Rape s.1 Sexual Offences Act 2003:
A intentionally penetrates the vagina, anus or mouth of
another (B) with his penis...A does not reasonably believe
that B consents.
 • Intention Our focus
• Recklessness
• Knowledge
Different
• Belief
types of
• Negligence
Mens Rea
• Dishonesty
What will
we cover? • We will also discuss:
Transferred malice
(not a type of mens rea
but about mens rea)
 Different types of intention

• Direct intent Our focus

• Indirect/oblique intent
• Basic intent Intoxication
• Specific intent
• Ulterior intent e.g.
s.18 OAPA 1861: wounding with intent to do grievous
bodily harm
 What intention is NOT
• Intention ≠ motive
Cox: (1992) 12 BMLR 37 D injected V with
lethal substance with ‘good’ motive of ending
her suffering. Still intended to kill. Still
convicted.
Yip Chiu-Cheung [1995] 1 AC 111
BUT Steane [1947] KB 997
s.28(1)(a) Crime and Disorder Act 1998 –
‘racially aggravated’: offence motivated
(wholly or partly) by hostility towards
members of a racial or religious group

• Intention ≠ premeditation
 • ‘Golden rule’ = to give intention
its ordinary meaning
Lord Bridge, Moloney [1985] AC
905, 926:
The golden rule should be
What is that...the judge should avoid
direct any elaboration or paraphrase
of what is meant by intent, and
intention leave it to the jury’s good sense
? to decide whether the accused
acted with the necessary intent.

• ‘Ordinary’ meaning = D’s aim or

purpose (Cunliffe v Goodman
[1950] 2 KB 237; Mohan [1975] 2
 • Used rarely – MD [2004] EWCA
Crim 1391
• BUT - in rare cases, D might still
legally intend a result that is not
his/her aim or purpose.
• Glanville Williams:
• Direct intention is where the
What is consequence is what you are
indirect aiming at.
intention? • Oblique intention is
something you see clearly
but out of the corner of your
eye…a side-effect that you
accept as an inevitable or
‘certain’ accompaniment of
your direct intent.
Oblique intention (1987) 46 CLJ 417,
421.
 Direct • Kim wants to kill her husband, Jim, because
she’s discovered that he had an affair with
intention her best friend. Kim takes a kitchen knife to
bed with her, and whilst Jim is asleep, she
? stabs him in the heart. Jim dies.
Direct intention?

• Kim is a business woman who has just discovered that her multi-
million pound empire will go bust if she does not pay off a
£1,000,000 loan she owes to the bank. She knows that her
husband, Jim’s, life is insured for £1,000,000. She loves Jim dearly,
but she loves her business-empire more, so she decides to kill Jim
in order to cash-in on the insurance money. Kim takes a kitchen
knife to bed with her, and whilst Jim is asleep, she stabs him in the
heart. Jim dies.
 Is This • Kim, a formerly successful business
woman, finds herself in a situation
Intention where she knows that if she doesn’t
? find £1,000,000 she will lose her
entire business empire. She owns a
private jet, which is insured for
£1,000,000. So, she decides to plant a
bomb on the plane which will explode
whilst her husband Jim, who she loves
dearly, takes the plane for a ride later
on that week. As planned, the bomb
explodes allowing her to claim the
£1,000,000 insurance pay-out. Jim is
killed in the explosion.
 The historical development of
indirect intention

• Hyam [1975] AC 55: Nedrick [1986]1 WLR 1025

• high probability Lord Lane: Where the charge is murder,
and in the rare cases where the simple
direction is not enough, the jury should
• Moloney [1985] AC 905:
be directed that they are not entitled to
• ‘natural consequence’ infer the necessary intention unless they
feel sure that death or serious bodily
• Hancock and Shankland: harm was a virtual certainty (barring
[1986] AC 455 some unforeseen intervention) as a
• ‘natural and probable
result of the defendant’s actions and
consequence’ that the defendant appreciated
that such was the case.
Virtual Certainty:
Woollin [1998] 4 All ER 103

Crown Court: ‘substantial risk’: D found guilty of murder

Court of Appeal: upheld his conviction.
House of Lords: allowed D’s appeal. Use of the phrase ‘substantial
risk’ was not appropriate.
the jury should be directed that they are not entitled to find the
necessary intention unless they feel sure that death or serious
bodily harm was a virtual certainty (barring some unforeseen
intervention) as a result of the defendant’s actions and that the
defendant appreciated that such was the case.
 1) Was the result D’s aim or
purpose?
If yes – direct intent

CURRENT 2) If no – is there indirect intent?

a) Was the result virtually
test for certain?
intention and
b) Did D appreciate that this
result was virtually certain?
If so
c) Jury are entitled to find intent
 • What is meant by ‘virtually certain’?
• Does the change of wording, from
‘infer’ to ‘find’ change anything
important?
• Must the jury find intent or are they
simply entitled to find it? Matthews
[2003] EWCA Crim 192
‘Woollin • The test is under-inclusive – not
intention’ covering people it should
debate and • The test is over-inclusive? – covering
discussion people it should not Steane and Re A
[2001] 2 WLR 480
• Importance of ‘moral elbow’ room?
• Does this test for intention apply
outside murder? GBH, Bryson [1985]
Crim LR 669
Summary for finding intention
How would
you define
intention?
 Recklessness

• Lesser mens rea requirement than intention

• A criminal offence requiring recklessness:
• s.1 Criminal Damage Act 1971:
Mens rea: intending to destroy or damage the property of
another or being reckless as to whether that property
would be destroyed or damaged
Actus reus: without lawful excuse, destroying or damaging
property belonging to another.
 Definition of Recklessness:
G [2003] UKHL 50

Subjective test based on Law Commission proposal:

A person acts recklessly within the meaning of section 1
of the Criminal Damage Act 1971 with respect to –
(i) A circumstance when he is aware of a risk that it
exists or will exist
(ii) A result when he is aware of a risk that it will
occur;
and it is, in the circumstances known to him,
unreasonable to take the risk.
 Return to
Cunningham [1957] 2 QB 396

• A return to the subjectivity we had seen in the previous case

of Cunningham:
1) D was aware that there was a risk that his/her conduct would cause a
particular result but went on to take it;
AND
2) The risk was an unreasonable one for the defendant to take
Foresight of a risk is sufficient – Brady [2006] EWCA 2413

Subjective: internal – concerned with the defendant’s state of mind

Objective: external – concerned with standard of reasonableness (as
opposed to the defendant’s state of mind)
Advantages • Focuses on the mind of the
of a particular defendant

subjective • Protects those who are not capable

test for of foresight: Stephenson [1979] QB
695
recklessnes
s • Relatively simple question for the
jury

• Recognises the importance that

the risk was ‘unreasonable’ e.g.
surgery
 • Under-inclusive: protects those
who are incapable of foresight,
whatever the reason

Disadvant • Under-inclusive: protects those

ages of a who were capable of foreseeing
subjective the risk
test for
recklessn • This leads to artificiality as the law
is twisted to get people ‘on the
ess hook’, e.g. Parker [1977] 2 All ER 37

• This can in fact lead to difficult

questions for the jury.
 The rise and fall
Caldwell/objective
recklessness

• Caldwell [1982] AC 341

• A person charged with an offence under s.1 Criminal
Damage Act 1971 is ‘reckless’... if he:
1) Does an act which in fact creates an obvious (&
serious*) risk that property will be destroyed or
damaged; and
2) When he does the act he either has not given any
thought to the possibility of there being any such risk
or has recognised that there was some risk involved
and has nonetheless gone on to do it.
* Lawrence [1982] AC 510
Advantages of an objective test
for recklessness

1 2
Covers those who The jury does not have to
‘should’ be found to be take part in a meticulous
reckless because they are analysis of the thoughts
capable of foreseeing risk of the accused.
 Disadvantages of an objective
test for recklessness

• Over-inclusive: an objective test also covers

those who are incapable of foreseeing a
risk, Elliott v C [1983] AC 510
• Mens rea requires us to focus on whether
the accused had a ‘guilty mind’.
• Actually a test for negligence?
• Possibly under-inclusive: Shimmen [1986]
Crim LR 209?
 • Retreat from Caldwell in the 90s
(Spratt [1991] 2 All ER 210,
Parmenter [1992] 1 AC 699).
The fall of
Caldwell/ • Overruled in G, which gives our
current test
objective
recklessn • Attorney-General’s Reference (No. 3
ess of 2003) [2004] 2 Cr App R 367
confirmed that G abolished Caldwell
recklessness for all offences which
previously used it.
 • House of Lords departed from an
earlier decision
• Practice Statement (Judicial Precedent)
[1966] 1 WLR 1234
• Lord Bingham - four reasons:
• Conviction of serious crime
requires a culpable/blameworthy
state of mind. Actus non facit reum
Reasoning nisi mens sit rea
• The model direction formulated by
in G Lord Diplock is capable of leading
to obvious unfairness.
• The criticisms Caldwell expressed
by academics, judges and
practitioners should not be
ignored.
• Interpretation of ‘recklessly’ in s.1
of the 1971 Act [in Caldwell] was a
misinterpretation (see paras 32-
35).
 • Two parts to the
recklessness test
• Subjective part: did
the defendant foresee
Remembe the risk?
r! • Objective part: Was it
unreasonable for
him/her to run that
risk?
How would you define
recklessness?
Transferred
malice
• Really the doctrine of transferred mens rea
• = the transfer of D’s mens rea from one
person/object to another.
• R v. Mitchell [1983] QB 741:
• ‘We can see no reason of policy for
holding that an act calculated to harm A
cannot be manslaughter if it in fact kills
B. The criminality of the doer of the act is
precisely the same whether it is A or B
who dies. The person who throws a
stone at A is just as guilty if, instead of
hitting and killing A, it hits and kills B.’
• R v. Latimer (1886) 17 QBD 359.
 No transfer of MR
V V2
MR of crime Y AR of crime Z
D

• The mens rea requirement must be the

Limits to same so cannot generally be transferred
between offences: R v. Pembliton (1874)
transferre LR 2 CCR 119

d malice
 X
1: Transferred MR 2: No transfer of MR

V V2

MR AR
D

• Mens rea cannot be transferred twice:

Limits to Attorney-General’s Reference (No. 3 of
1994) [1998] AC 245.
transferre
d malice
Transferred • Not needed in cases of mistaken
identity
malice not • Not needed in instances of
needed ‘general malice’
Thank You
Intention further reading
• A. Pedain, ‘Intention and the Terrorist
Example’ [2003] Crim LR 579
• I. Kugler, ‘Conditional Oblique Intention’
[2004] Crim LR 266
• A. Norrie, ‘After Woollin’ [1999] Crim LR 532
• W. Wilson, ‘Doctrinal Responsibility After
Woollin’ (1999) 62 MLR 448
• M. Kaveny, ‘Inferring Intention from
Foresight’ (2004) 120 LQR 81
• G. Coffey, ‘Codifying the Meaning of
‘Intention’ in the Criminal Law’ (2009) JCL
394
• Simester and Chan, ‘Intention thus Far’
[1997] Crim LR 704
Recklessness further
reading

• C. Crosby ‘Recklessness, The Continuing

Search for a Definition’, JCL (2008) 72 313-
334
• K. Amirthalingam, ‘Caldwell recklessness is
dead, long live mens rea’s fecklessness’
(2004) 67 MLR 491
• M. Jefferson, ‘Recklessness: The Objectivity
of the Caldwell Test’ (1999) 63 JCL 57
• J. Horder, ‘Two Histories and Four Hidden
Principles of Mens Rea’ (1997) 113 LQR 95