CRIMINAL LAW 1
The University of the West Indies
Faculty of Law
St. Augustine Campus
LAW 1110/WS3/AB
Semester I/2021-22
ELEMENTS OF A CRIME 2
MENS REA
TOPIC OUTLINE
A/
Overview
1. Varieties of mental states
B/
Intention
1. Distinguishing direct from oblique intention
2. Liability for undesired consequences
3. Basic and Specific intent
C/
Recklessness
1. Subjective and Objective tests
2. Developments and Reversals
D/
Negligence
1. Distinguishing recklessness from negligence
E/
Motive
F/
Factors relevant to mens rea
1. Coincidence of actus reus and mens rea
2. Transferred malice
3. Ignorance of the law
LEARNING OUTCOMES
Attending the lecture, independently studying the cases and materials, and preparing
for and participating in the tutorial should help you to understand and to do the
following:
1. Explain the different states of mind that constitute mens rea
2. Articulate the distinction between direct and oblique intention
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3. Describe the evolution of the common law regarding the meaning of intention for
murder
4. Articulate in detail the current position as it relates to liability for undesired
consequences
5. Describe, with the aid of cases, the meaning of and difference between
recklessness and negligence
6. Explain the test by which recklessness as a state of mind is defined; and
7. Explain, with the aid of cases, the concept of transferred malice and the principle
governing coincidence between the actus reus and mens rea
ESSENTIAL READINGS
Intention
Hyam v DPP [1975] AC 55; [1974] 2 WLR 607; [1974] 2 All ER 41; (1974) 59 Cr. App. R. 91
R v Moloney [1985] AC 905; [1985] 2 WLR 648; [1985] 1 All ER 1025; (1985) 81 Cr. App. R. 93
R v Hancock & Shankland [1986] AC 455; [1986] 2 WLR 357; [1986] 1 All ER 646
R v Nedrick [1986] 1 WLR 1025; [1986] 3 All ER 1
Woollin v R [1999] AC 82; [1999] 4 All ER 103; 3 WLR 382; [1998] 4 All ER 1031***
Tench (1991) 41 WIR 103
Recklessness
R v Cunningham [1957] 2 QB 396; [1957] 3 WLR 76; [1957] 2 All ER 412
R. v. Caldwell [1981] 1 All ER 961; [1982] AC 341; [1981] 2 WLR 509
Elliot v C [1983] 2 All ER 1005
R v Savage/R v Parameter [1991] 4 All ER 698; [1992] 1 AC 699; [1991] 3 WLR 914
Adomako [1995] 1 AC 171
R v G [2003] 4 All ER 765; [2003] UKHL 50; [2004] 1 AC 1034; [2003] 3 WLR 1060
Attorney-General’s Reference (No.3 of 1992) [1994] 2 All ER 121; [1994] 1 WLR 409
Brown v the Queen [2006] 1 AC 1, at paras. [22]-[30]
Alfred v the State (2015) 86 WIR 360 (CA Guy)
Transferred Malice
Latimer (1886) 17 QBD 359
Mitchell [1983] 2 All ER 427
Cross and Jones, chapter 3 OR
Smith and Hogan (relevant chapter)
Mc Kaveny, “Inferring Intention from Foresight” (2004) 120 LQR 81
Glanville Williams, “Oblique Intention” (1987) 46 Camb LJ 417
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A.
OVERVIEW
Generally crimes require a mental element, the nature of which will depend upon the
particular crime. That mental element may be morally neutral. Though mens rea is
sometimes loosely translated as `guilty mind', the word `guilty' simply refers to D's required
mental state and not to his motives or sense of moral guilt. As you will see, the term ‘mens
rea’ captures a variety of different mental states. There are many states of mind that a
person may possess and it is to the definition of the offence that one must look in
determining which state of mind must be proved in establishing liability for a particular
offence.
B.
INTENTION
At common law, the test of intention is a subjective one. This means, it is the state of mind
of the defendant that matters – not the state of mind of a reasonable person. Figuring out
what a person intended is where the complication lies. Intention for the purpose of the
criminal law may lie or be found along a continuum and may range from fairly narrow or
specific intents to broader and more encompassing states.
At its narrowest (and clearest), a person intends an event when his aim or purpose is to
cause that event, even though he may believe that the likelihood of achieving it is remote
and even though he does not desire it for its own sake. However, intention is to be
distinguished from motive and it does not always correspond to desire. A man may intend a
result even though he deeply regrets it and may in fact fervently wish that it did not have to
occur. For instance, a man who places a bomb on a jetliner may be motivated by his desire
to bring attention to a particular cause about which he is passionate. He may genuinely
regret the loss of life but he nevertheless intends to kill the passengers on board the plane
when the bomb detonates during mid-flight. It is by their deaths that he intends to make his
point. He intends their death because he knows or foresees or realizes that his actions are
virtually certain (that is, barring some miracle) to result in their death.
Complications arise where as a result of the defendant’s act there is some consequence that
is not desired by her. The Courts’ approach in the past was to attempt to provide a
definition of intention in all cases. The end result of that attempt was to blur the distinction
between intention and other states of mind such as recklessness, and to create less, rather
than greater, clarity. The modern approach is to provide a definition only in cases of oblique
intent, when the jury may be confused by D’s protestations that he did not wish or desire
the result which flowed from his actions.
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The key case is Woollin, but based on how the law has evolved, you must be attentive to the
following concepts that are often erroneously confused with intention:
•
It is a subjective, not objective, test
•
Where the consequence of the act is undesired, mere likelihood of outcome is not
enough
•
Nor is it enough to consider only the causative link between act and consequence –
also relevant is the probability of outcome, that is, the degree of likelihood
•
Foresight of consequences is not to be equated with intention; rather, it is a factor
together with all the other evidence from which the jury may find or infer intent
•
Intention as to consequence is NOT the same as motive; in fact, a person may
‘intend’ a consequence in law even though s/he has absolutely no desire for it
Some territories have codified the law relating to criminal intent – see, e.g.:
• Criminal Code of St Lucia 2004, s. 56
• Criminal Code of SVG, Chapter 171, s. 7
Basic and Specific Intent
These are concepts which are usually contrasted with each other in relation to the defence
of intoxication: Per Lord Simon in D.P. P. v. Morgan [1975] 2 All E. R. 347, 363: it is an
intention or other form of mens rea which does not go beyond the actus reus.
By contrast, the phrase ‘specific intent’ has been used in a variety of senses, e.g. as direct
intention. But it is typically used to contrast basic intent and so means a mens rea which
goes beyond the contemplation of the actus reus.
Note the usage by commentators of the terms ‘further’ and ‘ulterior’ intention: see Cross &
Jones and Smith and Hogan.
C.
RECKLESSNESS
At common law, recklessness was defined by reference to foresight on the part of the
accused that a particular result might flow from actions (or his omission to act). The accused
must have proceeded to act, notwithstanding the result that he foresaw, not caring whether
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or not the particular result flows from his actions. It is not foresight of a result alone that
suffices to establish recklessness but rather a combination of foresight of the particular
result and a dismissive attitude on the part of the accused as regards the consequences of
his actions.
Subjective test of recklessness:
R v Cunningham [1957] 2 QB 396
Objective test:
R v Caldwell [1981] 1 All ER 961
R v Lawrence [1981] 1 All ER 974
What is justifiable is judged by the standard of the ordinary, prudent individual:
Elliot v C [1983] 2 All ER 1005
Stephen Malcolm
The harshness of this position became readily apparent, and English courts began to fashion
all sorts of exceptions: Savage; Parmeter [1991] 4 All ER 698
R v Adomako [1995] 1 AC 171
Brown v the Queen [2006] 1 AC 1
R v G [2003] 4 All ER 765
It was a salutary principle that conviction of
serious crime should depend upon proof not
simply that the defendant had caused (by act
or omission) an injurious result to another, but
that his state of mind when so acting was
culpable. Although the most obviously culpable
state of mind was an intention to cause the
injurious result, knowing disregard of an
appreciated and unacceptable risk of causing
an injurious result or a deliberate closing of the
mind to such risk would be readily acceptable
as culpable also. It was clearly blameworthy to
take an obvious and significant risk of causing
injury to another.
It was not, however, clearly blameworthy to do
something involving a risk of injury to another
if (for reasons other than self-induced
intoxication) one genuinely did not perceive the
risk. Such a person might fairly be accused of
stupidity or lack of imagination, but neither of
those failings should expose him to conviction
of serious crime or the risk of punishment.
Moreover, it was neither moral nor just to
convict a defendant (least of all a child) on the
strength of what someone else would have
apprehended if the defendant himself had had
no such apprehension.
Likewise, local courts have adopted the subjective approach: State v Alfred 86 WIR 360
Note the various Code provisions, where applicable:
• St Lucia (2004), s 60 incorporates both the subjective and objective tests within the
definition of recklessness;
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•
D.
Grenada Criminal Code, Chapter 72B, s 12
NEGLIGENCE
At common law, an objective test is imposed: where D brings about a consequence that a
reasonable man would have foreseen and avoided. Crimes of negligence tend to be created
by statute. See:
• Criminal Code (SLU 2004), s 58
• Criminal Code (Gren), s 13
E.
MOTIVE
Mens rea usually contains no reference to motive. A bad motive is no reason to convict a
person; a good motive no reason to acquit her.
Usually the concept is used in the sense of an emotion that precipitates an act – such as
jealousy, hatred, avarice, lust, compassion or love. Legally, those emotions provide context
but are not co-extensive or determinative of intent, which is linked to criminal
responsibility.
F.
FACTORS RELEVANT TO MENS REA
1. Coincidence of Actus Reus and Mens Rea
A necessary implication of the maxim, “actus non facit reus, nisi mens sit rea” is that the
“actus reus” and “mens rea” must coincide in point of time. By way of illustration: when an
accused commits the act or causes a particular consequence, he must, at that time, possess
the requisite mental state which, in the eyes of the law, renders his conduct criminal. If the
accused lacked the mens rea at the time of committing the actus reus, generally speaking,
he ought to be acquitted of the particular offence.
Consider, however, the “exceptions” recognized in the following cases or rather, the ways in
which the courts have sought to mitigate the unjust effects of a strict application of this
principle:
Thabo Meli v R [1954] 1 WLR 228, [1954] 1 All ER 373
R v Miller [1983] 2 WLR 539, [1983] 2 AC 161, [1983] 1 All ER 978
R v Le Brun [1991] 4 All ER 673, [1991] 3 WLR 653
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2. Transferred Malice
There must be a coincidence of actus reus and mens rea in order to ground criminal liability.
If D intends to cause death of one person, and succeeds in causing the death of another,
s/he would still be found liable for murder as the intention that s/he formed to kill the
intended victim would be transferred to the actual victim.
The rule however is subject to certain limitations as illustrated in the cases set out below:
R v Pembliton (1947) L.R. 2 C.C.R. 119; (1872-75) L.R. 2 C.C.R. 119
R v Latimer (1886) 17 QBD 359
AG’s Reference (No.3 of 1994) [1998] AC 245, [1997] 3 All ER 936, [1997] 3 WLR 421
3. Ignorance
Ignorance of the law is no defence to a criminal charge. See:
ESOP (1836) Smith & Hogan C&M
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Questions for Discussion
1. Donald enters a store intending to rob the owner. He brandishes a knife at the
cashier and demands all the cash in the till. The cashier hands it over. As he is
leaving, Donald throws a home-made petrol bomb into the store to cause confusion
and enable him to get away. The bomb explodes and the store quickly becomes
engulfed in flames.
Most of the persons inside the store escape, but two members of staff lock
themselves in a back room. Both of them die from smoke inhalation caused by the
fire before they can be rescued.
Discuss thoroughly, with the aid of decided cases, whether Donald can be said to
have intended the deaths of the two staff members.
2. Ever since Whitney married Samuel, his ex-girlfriend, Jasmine, has nursed a grudge
against Whitney. One night, Jasmine starts a small fire in their house, hoping to scare
Whitney into leaving Samuel. In fact, the fire gets out of control. Whitney and
Samuel escape but their one-month old baby dies. At Jasmine’s trial for murder, the
trial judge explains the meaning of ‘intention’ to the jury in the following terms:
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“Members of the jury, you have to decide whether the accused intended to kill
the deceased or to cause her grievous bodily harm. In deciding this, you must be
satisfied that the accused foresaw death or grievous bodily harm as a result of her
acts. You must ask yourselves whether death or grievous bodily harm was a
natural consequence of the acts of the accused, and you must be satisfied that
the accused foresaw a substantial risk of death of serious bodily harm as a result
of her acts.”
Jasmine is convicted of murder and wishes to appeal. Advise Jasmine whether there
are any mis-directions by the trial judge on intention, which can be raised on appeal.
3. Barry, a medical doctor and midwife, is out driving his car when he is called by the
hospital where he is employed to perform an emergency caesarean on a patient.
Barry knows that his car has faulty brakes and he had been told by his mechanic not
to exceed 30 miles an hour, but he speeds away at over 100 mph to get to the
hospital. On the way, his brakes fail, and he crashes his car causing significant
damage to a parked car.
Mindful of his patient, Barry leaves the scene and goes to the hospital in a taxi.
When there he ignores the advice of performing a caesarean and tries to remove the
baby manually. Significant bleeding occurs, the baby dies, and Barry drinks a glass of
wine to calm himself down. He then tries to save the mother, but she too dies.
Discuss whether Barry has any criminal state of mind.
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