MOK INSTITUTE FOR A’LEVEL LAW

OMER KHAN – AS LAW

Mens rea

Mens rea is the mental element of an offence. Each offence has its own mens rea.

Intention
In R v Mohan (1975), the court defined intention as: ... 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 of his act or not'.
This makes it clear that the defendant's motive or reason for doing the act is not relevant. The
important point is that the defendant decided to bring about the prohibited consequence.

R v Mohan (1975)
The defendant refused to stop when a policeman signalled for him to do so. instead, he drove
towards the officer. This showed a direct intention to scare or injure the policeman.

In most cases, the defendant's intention is clear. For example, where the defendant deliberately
punches another person, then they have an intention to use unlawful force on the victim. This is
also known as direct intent.
The main problem with proving intention is in cases where the defendant's main aim was not the
prohibited consequences, but, in achieving the aim, the defendant foresaw that they would also
cause those consequences.

This is referred to as 'foresight of consequences' or

'oblique' intent.
The first rule about foresight of consequences is that it is not the same as intention but can be
evidence of intention. A jury may use this evidence to find that the defendant had intention, but
only where the harm caused as a result of the defendant's actions was a virtual certainty and the
defendant realised that this was so. This was explained in R v Woollin (1998).
ents of a crime

R v Woollin (1998)
The defendant lost his temper and threw his three-month-old son towards his pram which was
against a wall just over a metre away. The baby suffered head injuries when he hit the wall and
died.
The court ruled that the consequence must be a virtual certainty, and the defendant must realise
this. If the jury was satisfied on both these points, then there was evidence on which the jury
could find intention.

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Recklessness
This is a lower level of mens rea than intention.
Recklessness is the taking of an unjustifiable risk.
It has to be proved that the defendant realised the risk, but decided to take it. This can be seen in

R v Cunningham (1957)
The defendant tore a pre-payment gas meter from the wall of an empty house in order to steal the
money in it. This caused gas to seep into the house next door, where a woman was affected by it.
Cunningham was charged with an offence of maliciously administering a noxious thing, which
has a mens rea of recklessness or intention to do SO.
It was held that he was not guilty since he did not realise the risk of gas escaping into the
adjacent house. He had not intended to cause the harm, nor had he taken a risk he knew about.
To have the necessary mens rea, the defendant must either intend the consequence or realise that
there was a risk of the consequence happening and decide to take that risk.

Transferred malice
This is the principle that the defendant can be guilty if he intended to commit a similar crime but
against a different victim. An example is aiming a blow at one person with the necessary mens
rea for an assault causing actual bodily harm but actually hitting another
Mitchell (1983).
person. This occurred in the cases of Latimer (1886) where the defendant aimed a blow with a
belt at a man in a pub after that man had attacked him. The belt bounced off the man and struck a
woman in the face. Latimer was guilty of an assault against the woman, although he had not
meant to hit her. There was, however, transferred malice so he could be found guilty of hitting
the woman.

Mitchell (1983)
The defendant tried to jump the queue at a Post Office. An elderly man took issue with his
behaviour and challenged him. The defendant hit the old man and pushed him. The man fell back
onto others in the queue including an elderly lady who fell and broke her leg. She later died.
Here, the mens rea directed towards the old man was transferred to the offence against the old
woman.
However, where the mens rea is for a completely different type of offence then the defendant
may not be guilty. This was the situation in Pembliton (1874) where the defendant threw a
stone, intending it to hit people with whom he had been fighting. The stone hit and broke a
window which was criminal damage. The intention to hit people could not be transferred to
breaking the window as there was a different mens rea for the two offences.

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Coincidence of actus reus and mens rea
In order for an offence to take place, both the actus reus and the mens rea must be present at the
same time.
This is also known as the 'contemporaneity rule'.
For example:
» Suppose you decide you do not like your next-door neighbour's fence and set off to tell them
that you are going to knock it down. Before you get to their house, you change your mind, and
decide the fence is not so bad. You do not actually damage the fence.
You cannot be guilty of criminal damage, even though you had the mens rea for that offence, as
there is no actus reus.
» If a week later, you are driving your car out of your driveway and knock down the fence
accidently, you have now done what could be the actus reus for criminal damage. However, you
are not guilty of any criminal offence since at the moment you damaged the fence you did not
have the necessary mens rea.
The mens rea and the actus reus were not present at the same time. Although there is no crime,
there may be liability in the tort of negligence; see Chapter 37.) However, there are some
circumstances where the courts will view the events as a continuing act. Where there is a
continuing act for the actus reus and, at some point while that act is still going on the defendant
has the necessary mens rea, then the two do coincide and the defendant will be guilty. This can
be seen in Fagan v Metropolitan Police Commissioner (1968).

Fagan v Metropolitan Police Commissioner (1968)

Fagan was told by a police officer to park by the pavement. Fagan drove onto the policeman's
foot without realising he had done so. The policeman pointed out what had happened and asked
Fagan several times to move the car off his foot. Initially he refused to move his car and swore at
the policeman, telling him he could wait. Eventually Fagan did move the car. The court stated
that once Fagan knew the car was on the police officer's foot, he had the required mens rea for
the offence. As the actus reus (the car putting force on the foot) was still continuing, the two
elements were then present together.

Evaluation of mens rea

With respect to mens rea, it is difficult for judges to explain the law to jurors and then for jurors
to apply the law. This is partly because jurors are trying to decide what was going on in the
defendant's mind, and partly because the tests are not always straightforward, and words such as
infer' and 'find" may seem to be interchangeable.
Recklessness is a subjective test. This makes it clear that the defendant is at fault. It makes
people take responsibility where they are aware there is a risk of the consequence occurring.

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This is fair on the defendant, as they are only guilty if they realise the risk. However, it can be
argued that the law is not so fair on innocent victims and their families. Someone may have been
seriously injured or even killed, yet the attacker may be not guilty if they were not subjectively
reckless. So, it can be argued that the law does not give sufficient protection to innocent
members of the public.
There is conflict between public policy and legal principles. Public policy is based on public
protection and the encouragement of good behaviour. Legal principles impose liability where
there is fault. It is often not possible to balance public protection with fairness to the defendant.
It can also be argued that having a subjective test for recklessness means that a defendant can too
easily avoid liability. The prosecution has to prove that the defendant was aware of the risk. It
can be difficult to prove what was in their mind and it allows their characteristics to be taken into
account in deciding whether they realised the risk.
The main problem with proving intention is in cases where the defendant's main aim was not the
prohibited consequences but, in achieving the aim, the defendant foresaw that they would also
cause those consequences. This is not a straightforward concept for a judge to explain to a jury.

Model Questions

Q. Briefly explain what is meant by actus reus.

Q. Explain the 'but for' test in causation.
Q. Give two examples of events that can break the chain of causation.
Q. What is meant by 'foresight of consequences'?
Q. In criminal law, when is a defendant reckless?
Q. Vlad was driving his car when he saw Wayne, against whom he bore a grudge. He accelerated
hard towards Wayne, who was still standing in the road. Frightened, Wayne tried to jump out of
the way but his hand was hit by the mirror. Wayne went to hospital where X-rays showed that he
had three badly broken fingers. While at the hospital, he contracted a disease from which he
died. Explain whether Vlad caused Wayne's death.
Q. Evaluate the law with respect to causation.

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MOK ACADEMY FOR UOL LLB (HONs)
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