What is mens rea?

 

The mens rea of a crime is best described as the ‘mental element.’ That means that not only must the prosecution show that the defendant committed the act (the actus reus), but, that he also had the intent to commit that crime.

Traditionally, there are two states of mind which can, separately or together, form the mens rea of a crime: intention and recklessness.

 

Intention

 

This is subjective. Therefore, a court is concerned with what the particular defendant intended, and not what a reasonable person would have intended in the circumstances. Intention can be broken down into two distinct parts: direct intention and indirect intention.

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Direct intention applies where a party intended the result of a particular crime. For example, if A took out a gun and shot B because A wants to kill B, the direct intent is present; namely, to kill B. By contrast, indirect intention is present where, although the defendant did not have the direct intent to carry out the act, the result of the act is virtually certain for which the defendant realises, but still continues with the act. An example may be where A puts a lit firework through the letterbox of B, hoping to scare B. A may not have intended to have kill B or cause GBH, but knows that it will happen.

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Recklessness

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Recklessness may be described as the unjustified taking of a risk. Recklessness is the mens rea for offences such as common assault, actual bodily harm (S.47 OAPA 1861), grievous bodily harm (S.20 OAPA 1861), criminal damage and involuntary manslaughter. Its definition has, however, been in a state of flux other the past decade or so, with the courts toying with both subjective and objective manslaughter.

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The original test was known as ‘Cunningham recklessness’ which used a subjective test. In R v Cunningham the defendant tore a gas meter in order to steal money, but in doing so released a noxious substance which seeped to the victim’s property next door. The court held that the test to be applies was whether or not the defendant appreciated the risk of his actions, but took that risk anyway. This was the accepted definition until the controversial ‘Caldwell recklessness’ was established.

 

The objective test (Caldwell recklessness)
 

In Metropolitan Police Commission v Caldwell (1982) AC 341, the defendant, Caldwell, was an ex-employee of a hotel and harboured a grudge against its owner. He started a fire at the hotel and caused damage, subsequently being charged with arson. However, there was no intention and the law on recklessness was, according to Lord Diplock, too narrow for the Criminal Damages Act 1971. Rather, he stated a person is reckless if: (1) a person does an act which created an obvious risk that property would be destroyed ad (2) when he does the act he either has not given any through to the possibility of there being any such risk, or has recognised a risk but has nonetheless gone on to do it. The first limb is subjective – it requires the defendant to have actually have seen the risk. The second limb may be categorised as subjective – the defendant does not actually have to see the risk, so long as the risk was obvious that a reasonable person would have seen it.  

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The problem with the Caldwell recklessness, however, was the so-called ‘lacuna’ or the ‘gap in the law’, where equally blameworthy conduct could escape liability. Caldwell recklessness imposed liability on those who realised that there was a risk and took it anyway or, by the standard of ordinary people, fought to have seen the risk. But this test had an underlying problem: what it a defendant did consider a risk but concluded that it was not a risk? This issue was tackled in R v Reid (1992) 3 AER 673. The defendant hit a taxi hut after trying to overtake on a busy road and subsequently killed his passenger. The court held that in such situations, the defendant would not be reckless where there had been a bona fide mistake in assessing the risk. Many academics believe that such a principle adds another limb to the Caldwell test.

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Even though the third limb sought to eradicate the absurdities of the previous position, problems persisted. One such problem was that there were now two tests for recklessness: subjective (Cunningham) and objective (Caldwell). Such tests created a great deal of confusion to juries. Such concern was that the Cunningham (subjective) standard applied to serious crimes such as rape, whereas the Caldwell (objective) test applied to lower offences, such as criminal damage.

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The harshness of the Caldwell test is demonstrated by the case of Elliot v C [1983] 1 WLR 939. The defendant was a 14-year old girl with low intelligence. One day, she was playing with matches white spirit and inadvertently set fire to her neighbour’s shed, which was destroyed. The case was dismissed on the basis that she gave no thought to the risk of damage, but, even if she had, she would not have been capable of appreciating it. The Divisional Court heard the subsequent appeal from the prosecution, on the grounds that the Caldwell test was purely objective, and the fact that the girl did not appreciate the risk was irrelevant. When the court in Caldwell had talked about an "obvious" risk, they had meant obvious to the reasonable man if he had thought about it, and not obvious to the defendant if he had thought about it. The appeal succeeded. In R v R (1991), however, an attempt was made to mitigate the onerous application of recklessness. Counsel for the accused argued (unsuccessfully) that in deciding whether a risk was obvious, that the reasonable person should be assumed to have the relevant characteristics of the accused. Such a position was analogous to provocation; however, the Court of Appeal held that there was no reason for bringing such an approach to the Caldwell test.

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Problems with the Caldwell test continued. However, in R v G and another [2003] 3 WLR, the defendants, aged 11 and 12, set fire to newspapers and threw them in the bind, causing the fire to spread to nearby shops causing £1 million worth of damages. The boys stated that they thought the fire would extinguish itself on the concrete floor. The trial judge convicted the boys on the basis of Caldwell recklessness. However, the House of Lords allowed the appeal and overturned Caldwell and held that the appropriate test for criminal damage pursuant to section 1 of the Criminal Damage Act 1971 was: (i) a circumstance where the defendant is aware of a risk that exists or will exist; (ii) a result when he is aware of a risk that it will occur; and (iii) and it is, in the circumstances known to him, unreasonable to take that risk.

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The position today is, therefore, subjective.

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Negligence

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Although negligence is commonly found in the realms of civil liability and tort, it does have significance in the criminal law. The test is objective and asks whether or not the defendant’s conduct has fallen below that of the reasonably prudent person. While true crimes of negligence are rare, some do exist such as motoring offences.

 

The most ‘important’ crime resulting from negligence is that of gross negligence manslaughter. Like the name would suggest, ordinary negligence will not suffice; the defendant’s acts or omissions must be grossly negligent. The often cited case for this is R v Adomako (1994) 3 WLR 288 which established a four-tier test for establishing liability: (1) there must be a duty of care; (2) the duty must be breached; (3) there must be ‘gross negligence’ which the jury considers as justifying the imposition of criminal liability; and (4) the gross negligence was a substantial cause of the victim’s death. However, despite the rule in Adamoko, there is significant academic debate as to whether or not negligence can be described as a form of mens rea. In Attorney-General’s Reference (No.2 of 1999) the prosecution sought a conviction on the back of Great Western Trains following the Southall crash in 1997. The Court of Appeal stated that gross negligence was not a form of mens rea but died concede, however, that a person’s state of mind could still be relevant to proving gross negligence.

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Transferred Malice

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As the name may suggest, the doctrine of transferred malice applies where A had the intent to carry out an act against B, but instead harms or kills C. Take, for example, an incident where Stacey, following a row with her fiancée, Liam, shoots at him and intends to kill him. However, she misses and hits Paul, an innocent bystander instead. Although it would be argued that Stacey did not have malice aforethought to kill Paul (intention to kill or cause GBH), she is still liable for murder. The reason for such liability is because Stacey had the actus reus and mens rea for murder in respect of Liam. The mens rea is said to ‘transfer’ to the new actus reus, i.e. killing Paul.

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Therefore, a party is liable for the same crime even if the victim was not the intended victim.

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In R v Latimer (1886) 17 QBD 359, the defendant took off his belt and aimed a blow at someone. The bet reflected from that person onto another, the victim, who was severely injured. The court held that the defendant, Latimer, was liable for injuring the victim, although she was not the intended victim. His intention to wound the person he had aimed at had transferred the intent to his victim.

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The doctrine also operates where the defendant harms an unintended victim but has a defence. So, for example, Stacey shoots at Liam in self-defence but instead hits Paul. If Stacey were to be charged with Paul’s murder, she would have a defence.

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In Attorney-General’s Reference (No.3 of 1994) [1997] 3 All ER 936, the defendant stabbed his girlfriend who was to his knowledge between 22 and 24 weeks pregnant. The woman went into premature labour 17 days later and gave birth to a baby girl. However, due to complications of the birth, the girl later died. The defendant was charged with the offence of wounding his girlfriend with intent to cause GBH and pleaded guilty. After the child died, he was charged with murder. However, it was held that the defendant could not be convicted of murder or manslaughter as at the time of the attack the foetus was not classified as a human being (as it was not independent of its mother) and thus the doctrine of transferred malice could have no operation.

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In the recent case of R v Armel Gnango [2011] UKSC 59, the Supreme Court rules that the doctrine of transferred malice applies to accomplices. In this case, a man was trying to shoot his accomplice but shot and killed an innocent member of the public who was on the phone to her sister in Poland at the time. The doctrine of transferred malice applied and, therefore, both the defendant who fired the gun and accomplice were convicted under principles of joint enterprise and transferred malice.

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Contemporaneity Rule

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The contemporaneity rule states that the actus reus and mens rea must occur simultaneously (at the same time). For example, suppose that Jenna intends to kill Chris on Thursday night, but fails to do so. On the way to the shops, the next day Jenna accidently hits Chris and kills him. Jenna would not be liable for Chris’ death.

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The courts have, however, adopted a flexible approach in cases involving continuing acts and the continuous series of acts as single transactions. In Thabo Meli v R [1954] 1 WLR 228, the defendant took their intended victim to a hit and got him drunk. They then hit the victim on the head, with the intention to kill him. They knocked him unconscious, but believing he was dead, threw his body over a cliff. The victim did die, but not from the beating, but from the fall. The defendants argued that there had been no coincidence of the mens rea with the actus reus. The Privy Council held that what the defendants had done constituted a chain of events which continued the actus reus.

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In R v Le Brun [1991] 3 WLR 653, the defendant punched his wife knocking her unconscious. He did not intend to cause her serious harm. However, as he moved her body, he dropped her, causing her to hit her head on the pavement, fracturing her skull and it was this injury that caused her death. The defendant had the mens rea for manslaughter but did not commit the actus reus until the later time when he dropped his wife. The Court of Appeal upheld the conviction applying the single transaction doctrine.  Lord Lane CJ said:

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"It seems to us that where the unlawful application of force and the eventual act causing death are parts of the same sequence of events, the same transaction, the fact that there is an appreciable interval of time between the two does not serve to exonerate the defendant from liability. That is certainly so where the appellant's subsequent actions which caused death, after the initial unlawful blow, are designed to conceal his commission of the original unlawful assault."

 

Mens Rea should not be confused with motive

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To the casual observer, intent and motive may seem inextricably interlinked. However, this is not the case.

The motive is the reason for doing the act or why the crime was committed. Or the reason why the defendant will from the intent to commit the crime. Take the example where a husband dies leaving behind a substantial fortune. The prosecution may argue that the wife had a motive even though there is no evidence. Likewise, where a person kills his terminally ill wife by ‘putting her out of her misery’ may be determined, in the moral sense (although that’s debatable) to not have a bad motive. However, by doing so he has formed the mens rea for murder; namely, an intention to kill.

Intent, by contrast, are the acts that go before the crime which then merge with the actus reus. Mohan (1975) defines intent as a ‘decision to bring about, despite the fact that the accused wanted the consequence of his actions of not.

There are two forms of intent: basic intent and specific intent.

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A basic intent crime is one where the mens rea is either intention or recklessness and does not exceed the actus reus. What this means is, that the defendant does not have to foresee a particular consequence or harm beyond that of the actus reus. For example, the actus reus of malicious wounding is wounding and a defendant can be convicted without evidence of his intention to do anything more than to wound the victim. Some examples of basic intent crimes include common law assault and battery, manslaughter, rape and reckless criminal damages by virtue of the Criminal Damage Act 1971.

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A specific intent crime is one which the defendant’s intent goes beyond the actus reus, in the sense that he or she had an ulterior purpose. For example, the actus reus of wounding with intent to do grievous bodily harm is wounding. That said, the defendant must also have a specific mens rea in the form of an intention to do some grievous bodily harm, coupled with the mens rea for wounding.  Some examples include murder, inchoate offences, criminal damage with intent to endanger life (s.1(2) Criminal Damage Act 1971) and under ss. 2(1)(b) and 3 of the Theft Act 1978.