Mens Rea means a guilty mind and refers to the intention element of the crime. Each offence has its own mens rea e.g. the mens res for murder is the ‘unlawful killing of a human being with malice aforethought, this means that contrary to common law the defendant must intend to kill or cause grievous bodily harm whilst the mens rea for theft is dishonesty with the intention of permanently depriving as cited in s1 Theft Act 1968.
There are three different levels of mens rea, which may form the basis of criminal liability, these are:-
- Intention
- Recklessness
- Transferred Malice
Intention is the highest level of mens rea. It is usually concerned with whether a person intends a particular result or consequence following their actions. In law there are two types of intent, Direct and Oblique.
Direct Intent is where the defendant has a certain aim or result in mind and intends to achieve that result as in Matthews and Alleyne 2003.
Oblique Intent is where the defendant has one purpose in mind but in achieving that purpose also causes other consequences as in Hancock and Shankland 1986.
Recklessness is the taking of an unjustifiable risk. There are two levels of recklessness,
Subjective where the defendant realises the risk but decides to take it anyway as shown in
R v Cunningham 1957
Objective where an ordinary person would have realised the risk and would be guilty of the offence even if he did not realise the risk as in MPC v Caldwell 1981.
Transferred Malice is when someone intends to commit a crime against one person, but in fact commits the same crime against another. The law transfers the intention from the intended victim to the actual victim. This prevents the defendant from trying to argue that there was no mens rea so far as the actual intended victim was concerned as shown in R v Latimer 1886.
However, if the original intention was to carry out a different crime from the original intent then it is not possible to transfer that intention as in R v Pembletion 1874