Mens Rea

Notes:Mens Rea diagram Mens Rea diagram  Transferred Malice Transferred Malice

Mens rea is a Latin term meaning guilty mind.  It deals with the state of mind of the defendant at the time he committed the crime. There are two main types of mens rea.  These are:

1.  Intention

2.  Recklessness

For some crimes, however, a person can be found guilty without a guilty mind. These are generally known as crimes of strict liability.


1.  Intention

Intention is the most blameworthy state of mind under the law.  In most serious crimes, such as murder, robbery and burglary, it is necessary for the prosecution to prove that the defendant intended to commit the offence.   The law provides no clear definition of “intention”.


There are, though, clearly two different types of intention.  The first, known as direct intent, describes situations where it is the defendant’s purpose to bring about the unlawful consequence.  For example, when Romeo kills Tybalt with a knife while seeking revenge for the death of Mercutio, it is clear that he achieved his purpose.  This would be a case of direct intent.


Intention can be direct as in Mohan.  Direct intent means it is your main aim or desire to bring about the consequence e.g. death or GBH. In Mohan the D accelerated his car towards a police officer causing the V to jump out of the way. It was held that the D must be proved to have specifically intended to cause the V GBH, really serious harm, through driving his car at the officer.


However, if a mill owner set off a bomb on his premises during working hours in order to collect the insurance value of his property, and the whole workforce is killed, he can still be regarded as intending their deaths, even though it isn’t his purpose.


The House of Lords adopted this approach to intention based upon foresight of the consequence as a virtual certainty.  This is sometimes called oblique intent.

R v Woollin (1999) HL

Woollin was convicted of murdering his three month old son.  He was alleged to have lost his temper and hurled him onto the kitchen floor, causing him to fracture his skull and die. 

The HL said that the jury may find intent on the part of the defendant where:

1. death or gbh was virtually certain to result from the accused’s acts; and

2.  the accused actually foresaw this.

2.  Recklessness

Recklessness is taking an unjustified risk. 

R v Cunningham (1957) CA

While attempting to steal money from a gas meter, Cunningham ripped the meter off the wall, allowing gas to escape and endanger the life of a neighbour.  He could only be found guilty of “maliciously administering a noxious thing so as to endanger life” if he acted deliberately to endanger life, or if he recklessly endangered life.  To be reckless he has to see the risk and then choose to take that risk.  It is conscious risk-taking.  Cunningham was found not guilty as he had not seen the risk involved.


3.  Transferred Malice

Where a person has the mens rea of one crime, and commits the actus reus of the same crime, although not in the way he expected, he can still be found guilty. The rule operates only where it is the same type of offence the D wishes to commit on either the person or object. TM can transfer person to person or object to object.

R v Latimer (1886)

Latimer was quarrelling with Horace Chapple in a public house, and hit him with his belt.  The blow glanced off him and severely injured a bystander.  Latimer was convicted of maliciously wounding the woman.  He appealed on the ground that he had not intended to hurt her and therefore lacked the mens rea for the offence.  His appeal was dismissed.  There was no requirement that the mens rea of a crime should relate to a named victim.

However, where the D wishes to commit an offence, which is different from the actual offence committed, the principle of TM does not apply. So TM cant transfer from person to object or object to person.

R v Pembliton

The D intended to hit a person in a crowd by throwing a stone. The D missed the crowd and broke a nearby window instead. TM did not apply as the breaking of the window (criminal damage) was not the same type of offence as hitting someone with a stone (battery). Therefore the P would have to prove the mens rea for criminal damage if D was to be guilty of this offence.


4.  Coincidence of Actus Reus and Mens Rea

The defendant must possess the necessary mens rea at the time the actus reus is committed.  For example, if Dan drives to Pat’s house intending to murder him, but en route runs over a pedestrian and kills him, Dan cannot be charged with murder even if the pedestrian he happened to kill was Pat.  Dan had the mens rea of murder, and committed the actus reus, but these did not coincide in time.  However, the courts are reluctant to allow criminals to take unfair advantage of this doctrine. 





(a)  the actus reus comes before the mens rea

Sometimes the defendant will argue that he lacked mens rea when he first committed the offence.  In such cases the court will rule that the actus reus is a “continuing act”, and that the defendant is guilty if he had the mens rea at any time during the continuing act.

Fagan v Metropolitan Police Commissioner (1968) CA

Fagan had been instructed by the police to pull in to the roadside.  He did so, but accidentally drove the car onto a police constable’s foot.  The constable shouted: “Get off. You are on my foot.”  However, Fagan shouted: “**** you, you can wait.” and turned off the engine.  He was convicted of assaulting a police constable in the exercise of his duty, but he appealed.

His appeal was rejected.  Driving the car onto the constable’s foot and then leaving it there was one continuous act.  He was liable as long as he had the necessary mens rea at some stage during that continuing act.  He formed the mens rea when he decided to leave the car on his foot.


(b)  where the mens rea comes before the actus reus

At other times the defendant will argue that the mens rea came first, but was over before he committed the actus reus. 

Thabo Meli v R (1954) PC

The defendants had taken their victim to a hut and then hit him over the head to kill him.  Believing him to be dead, they threw his body over a cliff.  In fact, it was then that he died.  The defendants argued that there had been no coincidence of actus reus and mens rea.  They said that when they had the mens rea for murder, they had not in fact killed him; and when they had in fact killed him, they lacked the mens rea as they believed him already to be dead.  The appeal was dismissed: it was necessary to look at the defendant’s actions as a series of events, starting with hitting him on the head, and ending with his death of exposure.  It was enough for the prosecution to show that at some time during this chain of events the defendants had mens rea.

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