Mens Rea. The different types of mens rea are those of intention, recklessness, and negligence.

Authors Avatar by tkathpalia (student)

22nd October, 2012

Criminal Law

“To intend a result is to aim to produce it and to be reckless as to a result is to foresee it”.  Is that an accurate summary of the law?

Mens rea is the mental fault element of a crime, which creates culpability when it coincides the actus reus of the same crime. Mens rea or the state of mind of the defendant at the time of the crime is essential for his being held criminally liable and no act of the defendant, regardless of the seriousness of the consequences it may cause, can be punishable if there is a lack of this mental element. This ensures that only those who are truly considered blameworthy get convicted. The different types of mens rea are those of intention, recklessness, and negligence.

Criminal law tends to define intention and recklessness by borrowing their English dictionary meanings, simply of aim or purpose for the former and ‘disregard for the consequences of an action’ for the latter. In this generally broad sense, the law may be summarised to find that to intend a result is to aim to produce it and to be reckless as to a result is to foresee it. However, application of this broad law is subject to precedents with widely differing circumstances and conclusions, thereby disallowing the laying down of concrete principles. A rigid definition of the law in this context is often even considered counter-productive and the courts and legislations try to enable comprehensive interpretation to fit the unique circumstances of each case.

The defendant is said to have intended for a consequence to take place if while performing the action leading to the consequence, he meant for the consequence to occur. To only take the purpose of the defendant into account while holding him criminally liable is following the ‘pure intention’ view. The ‘oblique (indirect) intention’ definition of intention expands to include foreseeability, i.e. to enable the jury to infer that the defendant intended the results if he was virtually certain of the consequences of his actions. This allows us to actually categorise intention as to the state of mind of the defendant. Glanville Williams has argued that it is important to loosen the definition of intention to include oblique intention as this renders unnecessary the redrafting of statutes to include such a provision expressly. Here it important to differentiate between the defendant’s state of mind in the case of direct intention and that of foresight. Foresight does not, on its own, amount to intention. Only when the consequence is bound to occur beyond reasonable doubt, can foresight be interpreted as intention. A third view on intention is that of the ‘moral elbow room’ view. Here, the meaning of intention is taken to be that of purpose and in cases of the defendant being virtually certain of the consequences of his actions, the jury is left to decide whether there was intent on the basis of whether the defendant had such a wickedness of mind. While this view focuses more on the moral blameworthiness of the defendant, it could lead to great uncertainty, particularly as it involves ethical judgements to be passed by the jury.

Broadly speaking, intent is seen to mean purpose and in cases where there is insufficient evidence to prove direct intent, the defendant’s intent can be inferred from the fact that he was aware of the consequences of his actions while performing them. However, courts have often departed from this principle.

In Woollin[1], the defendant, in a fit of temper, threw his 3 month old son on the floor as he wouldn’t stop crying, thereby killing the baby. The jury was directed that the defendant’s intent to murder or grievously harm the child could be inferred if the jury was convinced that the defendant had realised the substantive risk of harm to the child as a result of his actions. The defendant was convicted for murder. This contradicted Lord Lane’s directions in Nedrick[2] that “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 point here was that a defendant may be inferred to cause an undesired result, however this was only possible if there was absolute certainty of the result occurring (excluding unplanned factors). The term ‘substantial risk’ could not be looked at to mean ‘virtual certainty’ and was therefore seen to be a misdirection, which enlarged the mental element of the crime[3]. As the defendant only foresaw death as a possible event but not a virtual certainty, his actions cannot be said to carry any intention. The appeal was allowed and a conviction of manslaughter was substituted for this case. While the consequences of the act of the defendant were foreseeable beyond reasonable doubt, the fact that the defendant failed to foresee them acquitted him of the intent to murder.

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In Moloney[4], a stepfather and son, in a state of inebriation decided to see who would be able to pull out a gun first and shoot. The son managed to do so and ended up shooting his father dead. He was tried and held guilty of murder as his intent was inferred from the fact that he foresaw the consequences of his act (even if they were undesired). However, in his appeal to the House of Lords, it was held that while death or serious harm may have been the obvious result of the defendant’s actions, the defendant did not ...

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