Mens Rea
For each offence, the required mens rea will be different.
There are two main states of mind which separately or together can constitute the necessary mens rea of a criminal offence:
Recklessness
Intention
A court is concerned purely with what the defendant was intending at the time of the offence, and not what a reasonable person would have intended in the same circumstances.
To help comprehension of the legal meaning of intention, the concept can be divided into two: direct and oblique intention.
Oblique intention
Direct intention
The defendant wants a particular result and carries out an act to achieve it. This is generally easier to prove based on the circumstances of the crime.
The defendant doesn’t want the result that occurs but realises that in acting as he does there is a possibility that it will happen.
Hyam v DPP (1975)
With indirect intention, the defendant intends one thing but another thing happens.
The issue has been whether the defendant foresaw the consequences of their actions, and this (rather broad) phrase has been an important area of discussion and development in the courts.
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The question of whether indirect/ oblique intention exists is complicated. It has been confused by a variety of model directions from different judges.
It is for the jury to decide whether oblique intention exists based on the evidence as presented to them. It is a subjective notion based on what the jury believe that the defendant knew or foresaw at the time of the crime.
In everyday language, recklessness means taking an unjustified risk of a particular consequence occurring.
Recklessness is the mens rea sufficient for many crimes
The question that has troubled the courts for years is whether recklessness should be assessed ‘subjectively’ or ‘objectively and its legal definition has radically changed in recent years.
The court decided to establish a subjective test for recklessness, in that the defendant recognised the risk of harm, and yet went on to take the risk anyway.
Metropolitan Police Commissioner v Caldwell, a criminal damage case, introduced an objective test for recklessness, in that recklessness should be determined according to what the ‘ordinary, prudent individual’ would have foreseen.
In R v G and another (2003), their Lordships unanimously declared that the objective test for recklessness was wrong and restored the Cunningham subjective test for criminal damage.
In order to define recklessness, the House of Lords in R v G and another (2003) preferred to use the words of the Draft Code
Caldwell test was capable of unfairness and came under significant judicial and academic criticism, and in the late 1980's the courts began a gradual movement to reject Caldwell and return to the Cunningham subjective test
Negligence
Negligence is the mental element that must be proved in order to impose liability on defendants in some forms of civil litigation
The defendant is liable if he or she fails to appreciate circumstances or consequences that would have been appreciated by the reasonable man.
Gross Negligence
Generally applies to cases of involuntary manslaughter. In some cases the degree of negligence is so high that it may create a state of mind.
R v Adomako (1994)
Other key principles
Transferred Malice
If a defendant attempts to commit a crime against one person, but, in doing so actually commits a similar crime against someone else, they can still be held guilty of the offence against the actual victim.
The mens rea is simply transferred to the new actus reus. Either intention or recklessness can be transferred.
Latimer (1886)
Coincidence of actus reus and mens rea- the contemporaneity rule
First, where the actus reus takes the form of a continuing act, it has been held that it is sufficient if the defendant forms mens rea at some point during the duration of the act- Fagan v Metropolitan Police Commissioner (1969).
The second exception is where the actus reus is itself part of some larger sequence of events, it may be sufficient that the defendant forms mens rea at some point during that sequence.
Thabo Meli and others (1954)