I.H. A2 Law
MENS REA
Mens rea is the mental element that usually must exist for someone to be
guilty of a criminal offence (except in the case of strict liability offences)
There are different levels of mens rea and the accused must have at least the
minimum level of mens rea required by an offence for them to be found
guilty.
Intention
Recklessness
Negligence
Knowledge
Decreasing level
of intention
1.
2.
3.
4.
INTENTION
Definition of intention given in the case of Mohan (1975)
“A decision to bring about, in so far as it lies within the accused’s power, the prohibited
consequence, no matter whether the accused desired that consequence or not”
This definition separates motive from intention and shows that motive is not
relevant in deciding whether defendant has the relevant intention.
The important part is that the defendant decided to bring about the prohibited
consequence.
Section 18 Offences Against the Persons Act 1861:


Actus reus: Defendant must wound or cause grievous bodily harm;
Mens rea: Defendant must intend to wound or cause grievous bodily harm
If there is no intention to wound or cause grievous bodily harm then
they are not guilty of the offence
The definition in Mohan (1975) also opens the possibility for the idea of 2 different
types of intention:
1. Direct intention
2. Oblique (indirect) intention
Direct intention arises where defendant intends a specific consequence to occur.
Oblique intention arises where the consequences that arise from his action are not
the ones that he intended but they are foreseeable by the defendant as a result of
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the actions taken; defendant can be found guilty if this is the case. This is the
concept of foresight of consequences.
The starting point for foresight of consequences is s.8 Criminal Justice Act 1967 (CJA
1967) and there has been development of the concept through various cases over
the years.
Section 8 CJA 1967 states that:
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 of it 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 IMPORTANT THING TO REMEMBER IS THAT THE DEFENDANT MUST INTEND
OR FORESEE A RESULT – IT IS A SUBJECTIVE TEST
Moloney (1985) – D shot his step-father whilst drunk at a party. They had been
seeing who could load a shotgun fastest. He loaded his faster and then step-father
and then his step-father said that D hadn’t got the guts to pull the trigger. D said ‘I
didn’t aim the gun. I jusdt pulled the trigger and he was dead’. D was convicted of
murder but conviction was quashed on appeal.
The House of Lords said that the jury should consider 2 questions:
1. Was death or really serious injury a natural consequence of D’s act?
2. Did D foresee that consequences as being a natural result of that act?
These guidelines were later dismissed in the case of Hancock and Shankland (1986)
and are no longer good law as they do not mention ‘probability’ in relation to the
consequence, as in s8 CJA 1976.
The one principle that still stands as good law from Moloney is that foresight of
consequences is only evidence of intention, not intention itself.
Lord Scarman, in Hancock and Shankland (1986) directly linked probability, foresight
and intention by saying:
“…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.”
The case of Nedrick (1986) involved a defendant who poured paraffin through the letter box
of a house belonging to a woman against whom he held a grudge. A child died in the fire and
D was convicted of murder but the Court of Appeal later quashed the conviction and
substituted one of manslaughter.
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In doing this, the Court of Appeal also tried to simplify the law in relation to foresight of
consequences that had developed in the cases of Moloney, Hancock and Shankland and
Nedrick.
They said that when considering foresight of consequences, the jury should ask themselves 2
questions:
1. How probable was the consequence which resulted in D’s voluntary act?
2. Did D foresee that consequence?
With regards to probability, the standard was set at virtually certain that the consequence
would result from D’s voluntary action.
With regards to foreseeability, the defendant had to appreciate that this was the case.
The directions given in Nedrick also referred to the jury being able to ‘infer’ that D had the
necessary intention if they thought that the consequence was virtually certain and that D
appreciated that this was so.
This remained the law until the case of Woollin (1998) which involved a Defendant who
threw his 3-month old baby against the wall (allegedly aiming for its pram) which caused
severe head injuries which killed the baby.
The House of Lords used the same basic test as in Nedrick but advised that the jury was
entitled to ‘find’ intention if they thought that the consequence was virtually certain and the
defendant appreciated it, rather than just ‘infer’ intention.
Problems
Woollin causes problems as it uses the word ‘find’ instead of ‘infer’ but it is the word ‘infer’
which is used in s.8 Criminal Justice Act 1967 which (as stated above) is the starting point
when looking at foresight of consequences.
The question was whether finding intention through foresight of consequences meant that
foresight was intention rather than just evidence of it (as per Moloney).
There are still 2 interpretations for the position in Woollin:
Re A (Conjoined Twins) [2000] – The court thought that the decision in Woollin made it law
that the foresight of consequences is intention
Matthews and Alleyne (2003) – If the jury decides that the defendant that the defendant
foresaw the virtual certainty of the consequence then they are entitled to find intention but
they do not have to do so.
Although there have been several recommendations for the law on foresight of
consequences and intention in general, it has never been successfully implemented and a
standard satisfactory definition has never been written down in statute.
As it stands, the definition in Woollin is still good law
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THEPROGRESSION OF CASES ON THE SUBJECT OF FORESIGHT OF CONSEQUENCES IN
RELATION TO INTENTION:
MOLONEY (1985)
HANCOCK AND SHANKLAND (1986)
NEDRICK (1986)
WOOLLIN (1998)
RE A (CONJOINED TWINS) (2000)
MATTHEWS AND ALLEYNE (2003)
SELF TEST QUESTIONS
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
How was intention defined in the case of Mohan?
Is motive relevant to mens rea?
Explain what is meant by direct intent.
Explain what is meant by oblique intent.
What is the concept of foresight of consequences?
What did the case of Moloney decide?
What did the case of Hancock and Shankland decide?
What is the test now used for foresight of consequences?
Is foresight of consequences intention?
Give three criticisms of the law on foresight of consequences. (See pages 26 -28 OCR
Criminal Law)