 Except with strict or absolute liability offences,in

order for an accused to be found guilty of a

criminal offence the prosecution must prove that
the accused committed the ACTUS REUS
of the offence with the appropriate MENS
REA
Forms of mens rea-----
INTENTION

RECKLESSNESS

NEGLIGENCE
INTENTION
INTENTION may be.....

DIRECT

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:

 Should the test be subjective or objective?

 What degree of probability is required before it can be
said that the defendant intended the result?
 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 House
of Lords


A policeman tried to stop the defendant from driving
off with stolen goods by jumping on to the bonnet of
the car. The defendant drove off at speed and
zigzagged in order to get the police office off the car.
The defendant argued he did not intend to harm the
policeman. The policeman was knocked onto the path
of an oncoming car and killed. The defendant was
convicted of murder. The trial judge directed the jury
as follows:
 ‘If you are satisfied that ... he must as a reasonable
man have contemplated that grievous bodily harm
was likely to result to that officer ... and that such
harm did happen and the officer died in consequence,
then the accused is guilty of capital murder. ... On the
other hand, if you are not satisfied that he intended to
inflict grievous bodily harm upon the officer - in other
words, if you think he could not as a reasonable man
have contemplated that grievous bodily harm would
result to the officer in consequence of his actions -
well, then, the verdict would be guilty of
manslaughter.’
 The jury convicted of murder and the defendant
appealed on the grounds that this was a mis-
direction and that a subjective test should apply.
The Court of Appeal quashed his conviction for
murder and substituted a manslaughter
conviction applying a subjective test. The
prosecution appealed to the House of Lords who
re-instated the murder conviction and held that
there was no mis-direction thereby holding an
objective test was applicable.
R v Hyam [1975] AC 55 House of
Lords


The appellant had been having a relationship with a
Mr Jones. Mr. Jones then took up with another woman
Mrs Booth and they were soon to be married. On
hearing this news, the appellant drove to Mrs Booth's
house at 2.00am and poured petrol through the letter
box and ignited it with matches and newspaper. She
then drove home and did not alert anyone of the
incident. Mrs Booth and her young son managed to
escape the fire but her two daughters were killed. The
trial judge directed the jury:

 "If you are satisfied that when the accused set fire
to the house she knew that it was highly probable
that this would cause (death or) serious bodily
harm then the prosecution will have established
the necessary intent."
 The jury convicted of murder. The conviction was
upheld by the Court of Appeal. The appellant
appealed to the House of Lords on the grounds that
knowledge that a certain consequence was a highly
probable consequence does not establish an intent to
produce that result but is only evidence from which a
jury may infer intent.

Held:3:2 decision

The appellant's conviction for murder was upheld as

there was no misdirection.
 Lord Hailsham's dissent:

I do not believe that knowledge or any degree of

foresight is enough. Knowledge or foresight is at
the best material which entitles or compels a jury
to draw the necessary inference as to intention.
 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.
R v Moloney [1985] AC 905 House
of Lords


The defendant shot his step father killing him.
Evidence was produced that the pair had a good
relationship. They had been celebrating the
defendant's grandparents’ ruby wedding anniversary
and had consumed a quantity of alcohol. The rest of
the family had retired to bed and the two stayed up
drinking. The defendant told his step father that he
wanted to leave the army. The step father was not
happy at the news and berated the defendant. He told
him he could load, draw and shoot a gun quicker than
him and told him to get the guns.
 The defendant returned with two guns and took
the challenge. The defendant was first to load and
draw and the step father said, "I don't think you
have got the guts but if you have pull the trigger".
The defendant pulled the trigger but in his
drunken state he did not believe the gun was
aimed at the step father. The trial judge directed
on oblique intent and the jury convicted. The
Court of Appeal dismissed the appeal and the
defendant appealed to the House of Lords.
 Held:

The defendant's conviction for murder was

substituted for manslaughter. It was not a case of
oblique intent and the judge should not have
issued a direction relating to further expansion of
intention.
 Lord Bridge also gave guidance on the approach
for the test on oblique intent:
 "In the rare cases in which it is necessary to direct
a jury by reference to foresight of consequences, I
do not believe it is necessary for the judge to do
more than invite the jury to consider two
questions.
 First, was death or really serious injury in a
murder case (or whatever relevant consequence
must be proved to have been intended in any
other case) a natural consequence of the
defendant's voluntary act? Secondly, did the
defendant foresee that consequence as being a
natural consequence of his act? The jury should
then be told that if they answer yes to both
questions it is a proper inference for them to draw
that he intended that consequence."

R v Hancock & Shankland [1985] 3
WLR 1014


The appellants were convicted of murder for the death of a
taxi driver. The appellants were miners on strike. They
wanted to block the road to the mine to prevent works
breaking the picket line. They had dropped lumps of
concrete and a post from a bridge on to the carriageway
below as the convoy of workers approached. The taxi was
struck by two lumps of concrete resulting in death of the
driver. The prosecution contended that the appellants
conduct meant that they intended nothing less than
serious bodily harm. The appellants argued they only
intended to block the road and no harm was intended to
result from the actions. The jury were directed in acordance
with the Maloney guidelines of:
 "First, was death or really serious injury in a
murder case (or whatever relevant consequence
must be proved to have been intended in any
other case) a natural consequence of the
defendant's voluntary act? Secondly, did the
defendant foresee that consequence as being a
natural consequence of his act? The jury should
then be told that if they answer yes to both
questions it is a proper inference for them to draw
that he intended that
consequence."
 The jury asked further guidance on the issue of
intent with regards to foresight and the judge
repeated the direction given. The jury convicted
of murder. The Court of Appeal quashed the
conviction and certified a point of law to the
House of Lords as to whether the Maloney
direction was misleading.
 Held:

The Maloney direction was misleading as it did not

refer to the degree of probability required.
The appropriate direction should include a reference
to the degree of probability and in particular an
explanation that the greater the probability of a
consequence the more likely it is that the
consequence was foreseen and that if that
consequence was foreseen the greater the probability
is that that consequence was also intended.

R v Nedrick [1986] 1 WLR
1025 Court of Appeal


The appellant held a grudge against Viola
Foreshaw. He went to her house in the middle of
the night poured paraffin through her letter box
and set light to it. A child died in the fire. The trial
was held before the judgment was delivered in
Moloney. The judge directed the jury as follows:


 "If when the accused performed the act of setting
fire to the house, he knew that it was highly
probable that the act would result in serious
bodily injury to somebody inside the house, even
though he did not desire it - desire to bring that
result about - he is guilty or murder."
 The jury convicted of murder and the defendant
appealed on the grounds of a mis-direction.

Held: There was a clear misdirection. The Court of

Appeal reviewed the cases
of Moloney and Hancock & Shankland and
formulated a new direction from the two
decisions.
R v Woollin [1999] AC 82 House of
Lords


The appellant threw his 3 month old baby son on
to a hard surface. The baby suffered a fractured
skull and died. The trial judge directed the jury
that if they were satisfied the defendant "must
have realised and appreciated when he threw that
child that there was a substantial risk that he
would cause serious injury to it, then it would be
open to you to find that he intended to cause
injury to the child and you should convict him of
murder."
 The jury convicted of murder and also rejected
the defence of provocation. The defendant
appealed on the grounds that in referring to
'substantial risk' the judge had widen the
definition of murder and should have referred to
virtual certainty in accordance with Nedrick
guidance. The Court of Appeal rejected the appeal
holding that there was no absolute obligation to
refer to virtual certainty.
 which expanded the mens rea of murder and
therHouse of Lords held:

Murder conviction was substituted with

manslaughter conviction. There was a material
misdirection efore the murder conviction was
unsafe. The House of Lords substantially agreed
with the Nedrick guidelines with a minor
modification. The appropriate direction is:
 Where the charge is murder and in the rare cases
where the simple direction is not enough, the jury
should be directed that they are not entitled to infer
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.

The decision is one for the jury to be reached upon a

consideration of all the evidence."

 The effect of these numerous pronouncements from
the appellate court is that-----

 A result is intended when it is the actor’s purpose to

cause.
 A result is intended, though it is not the actor’s
purpose to cause it, when
1-the result is a virtually certain consequence of
the act and
2-the actor knows that it is a virtually certain
consequence
Transferred Intent
 Transferred intent is a concept that allows for the
guilt to follow the action, regardless of who the
victim is.

 If A tries to kill B by shooting him, but misses

and kills C instead, A may be found just as
criminally liable for the death of C as he would
have been for the death of B, had he succeeded in
his intention.
 The overwhelming majority of transferred intent
cases involve people missing their true target with
firearms or thrown projectiles of some kind, which led
these cases to be referred to as "bad aim" cases.
However, if Claudius tries to kill Hamlet by poison
and his wife drinks the fatal cup instead, then the
doctrine of transferred intent may allow Claudius to
be found as guilty of his wife's death as he would have
been had be succeeded in the murder of Hamlet.
Likewise with arson, sexual assault, larceny and every
other crime : if the defendant perpetrates the act, and
there is a victim, then the defendant may be punished
no matter who the victim was or was intended to be.
 In general, criminal courts have restricted the use
of the transferred intent doctrine to situations of
like kind. For example, if Gus tries to shoot Bill,
but instead breaks Rick's window and puts a hole
in his wall, then Gus will probably not be found
guilty of malicious injury to property. His
intention to harm Bill's person is of a different
kind than the desire to harm property, and
therefor intent will probably not be transferred.
RECKLESSNESS
Means

TAKING AN
UNJUSTIFIED RISK
A person may be reckless as to a

consequence

circumstance
As to a circumstance if he is
aware of a risk that it exists or
will exist

As to a consequence if he is
aware of a risk that it will occur
 For the recklessness---
 the material risk which must be
foreseen or realised need as a
possible risk.It does not have to be
an obvious and significant.
 If the degree of risk foreseen is one of
virtual certainty, D can be found to have
intended the cosequence.there will be to
that extent an overlap between
intention and recklessness.
Mens rea - Reckless

 Recklessness in criminal law has given rise to

more difficulty. In particular the question as to
whether a subjective test should apply to
recklessness or whether an objective test should
apply.
R v Cunningham [1957] 2 QB
396 Court of Appeal
The appellant ripped a gas meter from the wall in order to steal
the money in the meter. This caused gas to escape. The gas
seeped through small cracks in the wall to the neighbouring
property where his future mother-in-law was sleeping and was
poisoned by the gas. He was charged under s 23 of the Offences
against the Person Act 1861 which provides 'Whosoever shall
unlawfully and maliciously administer to or cause to be
administered to or taken by any other person any poison or other
destructive or noxious thing, so as thereby to endanger the life of
such person, or so as thereby to inflict upon such person any
grievous bodily harm, shall be guilty of felony ...' The trial judge
directed the jury that malicious meant wicked. The jury
convicted the defendant and he appealed.
 Held:

Malicious means either 1) An actual intention to

do the particular kind of harm that in fact was
done; or (2) recklessness as to whether such harm
should occur or not (i.e., the accused has foreseen
that the particular kind of harm might be done
and yet has gone on to take the risk of it).

 This gave rise to Cunningham
recklessness which asks: did the
defendant foresee the harm that in
fact occurred, might occur from his
actions, but nevertheless
continue regardless of the risk.

R v Stephenson [1979] QB
695 Court of Appeal
The appellant was homeless and schizophrenic. He
found refuge in a haystack where he made a hollow
and tried to go to sleep. He was cold so he lit a fire
inside the hollow to keep himself warm. Inevitably
the whole haystack caught fire and he ran off and was
picked up by the police. The defendant contended
that he never thought of the possibility of a the whole
stack catching fire. At his trial a consultant
psychiatrist gave evidence that he had a long history
of schizophrenia and this would mean that the
defendant was quite capable of lighting a fire in a
haystack without ever thinking of the danger involved
 The trial judge directed the jury:
 "First you perhaps want to ask yourselves whether in lighting the
fire the accused carried out a deliberate act, and the answer to
that one thinks must be yes, because he has said that he lit the
fire.

 Secondly, you may want to ask yourselves whether you regard it or

not as an obvious fact that there was some risk of damage, and
when the act is the act of lighting a fire inside a straw stack, you
may have little difficulty in dealing with the question whether it
is an obvious fact that there is some risk of damage.

 Did he then do that knowing or closing his mind to the obvious

fact, in the case from which these words are taken, as I say the
reason advanced or the reason found for the man closing his
mind to the obvious fact was that he was so angry that he pressed
on regardless, and there may be...... all kinds of reasons which
make a man close his mind to the obvious fact — among them
may be schizophrenia, that he is a schizophrenic."

 The jury convicted the defendant.

Court of Appeal Held:

Defendant's conviction was quashed. The

direction was a misdirection. The test should be
entirely subjective, if the defendant did not
foresee a risk of damage he should not be liable.
In the case of MPC v Caldwell,
Lord Diplock created an
objective form of recklessness,
but this was abolished in 2003
by the case of R v G and another.
Metropolitan Police Commission
v. Caldwell
 Caldwell was an ex-employee of a hotel
and nursed a grudge against its owner.
He started a fire at the hotel, which
caused some damage, and was charged
with arson. This offence is defined in the
Criminal Damage Act 1971 as requiring
either recklessness or intention.
 This introduced Caldwell recklessness:

 A person is reckless as to whether property is
destroyed or damaged where:

(1) he does an act which in fact creates an obvious 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.

 Caldwell recklessness was eventually overruled by
the House of Lords in

R v G & R [2003] 3 WLR House of Lords

R v G & R [2003] 3 WLR House of
Lords


The two appellants, aged 11 and 12, went camping for a
night without their parents’ permission. The boys
found some old newspapers outside the Co-op which
they lit with a lighter and then threw them under a
wheelie bin. They then left without putting them out
assuming they would naturally burn out. In fact the
burning newspapers set light to the wheelie bin and
the fire spread to the Co-op shop and caused over £1m
of damage.
 Held:

The defendants' convictions were quashed. The House of Lords

overruled MPC v Caldwell[1982] AC 341.
The appropriate test of recklessness for criminal damage is:
 "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."

A subjective test

 Following the House of Lords judgment

of R v G and another, recklessness will
always be interpreted as requiring a
subjective test. In that case, the House
favoured the definition of recklessness
provided by the Law Commission’s Draft
Criminal Code Bill in 1989
 The trial judge and the Court of Appeal both felt
bound by the precedents and reluctantly convicted
the boys of arson under the Criminal Damage Act 1971.
The House of Lords, however, allowed the appeal and
dramatically overruled Caldwell. The House
considered the option of simply refining the Caldwell
test in order to achieve justice in the case, by, for
example, taking into account the actual
characteristics of the defendant when determining
whether there was an obvious risk. However, Lord
Hutton concluded that Lord Diplock’s speech in
Caldwell:
 . . . has proved notoriously difficult to interpret and
those difficulties would not have ended with
R v Stephenson [1979] QB
695 Court of Appeal


The appellant was homeless and schizophrenic. He
found refuge in a haystack where he made a hollow
and tried to go to sleep. He was cold so he lit a fire
inside the hollow to keep himself warm. Inevitably
the whole haystack caught fire and he ran off and was
picked up by the police. The defendant contended
that he never thought of the possibility of a the whole
stack catching fire. At his trial a consultant
psychiatrist gave evidence that he had a long history
of schizophrenia and this would mean that the
defendant was quite capable of lighting a fire in a
haystack without ever thinking of the danger
involved. The trial judge directed the jury:
 "First you perhaps want to ask yourselves whether in
lighting the fire the accused carried out a deliberate act,
and the answer to that one thinks must be yes, because he
has said that he lit the fire. Secondly, you may want to ask
yourselves whether you regard it or not as an obvious fact
that there was some risk of damage, and when the act is the
act of lighting a fire inside a straw stack, you may have little
difficulty in dealing with the question whether it is an
obvious fact that there is some risk of damage. Did he then
do that knowing or closing his mind to the obvious fact, in
the case from which these words are taken, as I say the
reason advanced or the reason found for the man closing
his mind to the obvious fact was that he was so angry that
he pressed on regardless, and there may be...... all kinds of
reasons which make a man close his mind to the obvious
fact — among them may be schizophrenia, that he is a
schizophrenic."

 The jury convicted the defendant.

Court of Appeal Held:

Defendant's conviction was quashed. The

direction was a misdirection. The test should be
entirely subjective, if the defendant did not
foresee a risk of damage he should not be liable.

NEGLIGENCE
NEGLIGENCE…..

Conduct that departs

from the standard to be
expected of a reasonable
person
 The existence of negligence is traditionally
determined according to an objective test, which
asks whether the defendant’s conduct has fallen
below the standards of the reasonable person. :
 In Mc Crone v Riding (1938), which concerned a
charge of careless driving,
 it was held that the accused’s driving could be
considered careless if he had failed to come up to
the standard of a reasonably experienced driver,
even though he was himself a learner driver.
Negligence in criminal liability

 Negligence plays a minor role in criminal liability.

It used to form the basis of some driving offences
but this has largely been superseded by
recklessness.
 The main role for negligence in criminal
law is with regards to gross negligence
manslaughter. This requires the prosecution to
establish that the defendant owed a duty of care,
was in breach of duty which resulted in death. The
current test for establishing liability for this
offence was set out in:

R v Adomako [1994] 3 WLR
288 House of Lords


The appellant was an anaesthetist in charge of a

patient during an eye operation. During the
operation an oxygen pipe became disconnected
and the patient died. The appellant failed to
notice or respond to obvious signs of
disconnection. The jury convicted him of gross
negligence manslaughter.

The Court of Appeal dismissed his appeal but

certified the following question to
 the House of Lords:
 "In cases of manslaughter by criminal negligence not
involving driving but involving a breach of duty is it a
sufficient direction to the jury to adopt the gross
negligence test set out by the Court of Appeal in the
present case following R. vBateman (1925) 19 Cr. App.
R. 8 and Andrews v. Director oPubcProsecutions[1937]
A.C. 576, without reference to the test of recklessness
as defined in R. v. Lawrence (Stephen) [1982] A.C. 510
or as adapted to the circumstances of the
case?"

 Held:
His conviction for gross negligence manslaughter was upheld. The Lords ruled that the law as
stated in R v Seymour [1983] 2 A.C. 493 should no longer apply since the underlying statutory
provisions on which it rested have now been repealed by the Road Traffic Act 1991.
The certified question was answered thus:

 "In cases of manslaughter by criminal negligence involving a breach

of duty, it is a sufficient direction to the jury to adopt the gross
negligence test set out by the Court of Appeal in the present case
following R. v. Bateman9 Cr. App. R. 8 and Andrews v. Director of
Public Prosecutions[1937] A.C. 576 and that it is not necessary to refer
to the definition of recklessness in R. v. Lawrence [1982] A.C.
510, although it is perfectly open to the trial judge to use the word
"reckless" in its ordinary meaning as part of his exposition of the law
if he deems it appropriate in the circumstances of the particular
case."

Adomako test:

 "whether the conduct of the defendant

was so bad in all the circumstances as to
amount in their judgment to a criminal
act or omission."

 There is some academic debate as to whether negligence
can be properly described as a form of mens rea.

 In Attorney-General’s Reference (No. 2 of 1999) the Court of

Appeal stated it was not a form of mens rea as it could be
proved without the jury having to look at the state of mind
of the defendant. This case arose from the unsuccessful
prosecution of Great Western Trains following the Southall
train crash in 1997. While the Court of Appeal accepted that
gross negligence was not a form of mens rea, a person’s
 state of mind could still be relevant to proving gross
negligence. It could be relevant because Adomako requires
the jury, when deciding whether gross negligence exists, to
consider all the circumstances of the case.
 But the jury were not required always to look
 at the mental state of the defendant; they might find
that their physical conduct alone fell so far below the
standards of the reasonable person that it justified
criminal liability. For example, following the Hatfield
railway disaster, a jury might find that the simple fact
 of not repairing the railway line constituted gross
negligence, without needing to look at the mental
state of any particular company employee.
 We will consider the concept of gross negligence in
much more detail when we look at the offence of gross
negligence manslaughter