CRIMINAL LAW: MENS REA (INTENTION)
Mens Rea
INTRODUCTION
The mens rea is the mental element of crime. It is the guilty intention to bring about a desired result which is considered criminal. The mens rea of murder is conventionally explained as "malice aforethought", but this can be deceptive because (as Lord Hailsham LC pointed out) neither word takes its usual meaning. Malice needs not be truly malicious - euthanasia for reasons of compassion is still murder - and no more than a split second's premeditation is necessary. Moreover, murder can be committed without the intention to cause death: the mens rea is an intention to cause either death or grievous bodily harm to any person.
The Homicide Act of 1957 explains mens rea for murder, ‘malice afterthought’ as:
1) An intention to kill (express malice) or
2) An intention to cause grave bodily harm (implied malice)
DIRECT INTENTION
There are two kinds of intention in criminal law: direct intention and oblique intention. Direct intention is where the consequence is what the Defendant wanted to happen by his act, it was the purpose of the Defendant’s act.
General Principle: The intention will be direct whether the Defendant desires an outcome.
R v Calhaem [1985] 1 QB 808
Facts: The Defendant hired a killer to murder a woman. The killer testified that after being paid by the Defendant he had decided not to carry out the killing, but instead to visit the victim's house, carrying an unloaded shotgun and a hammer, to act out a charade that would give the appearance that he had tried to kill her. When he had stepped inside the front door of the woman’s house, she started screaming. He panicked, hitting her several times with the hammer. The Defendant appealed, submitting that there was no causal connection between him and the death of the woman. Ratio: Hiring someone to kill carries a direct intention of a specific outcome which is murder a person. Application: The Court of Appeal affirmed the Defendant's conviction on the ground that by hiring the killer he had the actus reus and direct mens rea required for being guilty of murder.
General Principle: It is the jury’s task to decide on the matter of intention.
R v Moloney [1985] 1 All ER 1025, HL
Facts: The Defendant and his stepfather, who had been drinking, got into an argument as to which could load and fire a shotgun more quickly. They decided to test their respective claims by practical experiment, in the course of which the Defendant shot his stepfather in the face at a range of about six feet, killing him instantly. The defendant claimed that he had not deliberately aimed the gun, and had simply pulled the trigger in response to the victim's taunts, but the jury found him guilty of murder. Ratio: The House of Lords were highly critical of a statement in Archbold that a man intends the consequence of his action when he foresees that it will probably happen. Lord Bridge suggested that where a special direction was necessary the jury might be invited to consider (i) whether death or serious injury was a "natural consequence" of the Defendant's actions, and (ii) whether the Defendant foresaw that consequence and to infer the appropriate intention if and only if they could answer yes to both questions. Application: Although it has since been suggested that it may sometimes be necessary to give a jury an elaborated direction on the meaning of intention in rare cases where the Defendant does an act which is manifestly dangerous, and as a result someone dies, but where the primary desire or motive may not have been to harm that person.
OBLIQUE INTENTION
Oblique intention refers to those circumstances where the Defendant does not necessarily desire an outcome but he appreciates as inevitable the side effect of his action. He will be considered to have an intention to commit the actus reus even if he has oblique intent.
The Draft Criminal Code includes oblique intention in the definition of intention:
According to Section 1 ‘a person acts
(a) ‘intentionally’ with respect to a result when –
(i) it is his purpose to cause it, or
(ii) although it is not his purpose to cause it, he knows that it would occur in the ordinary course of events if he were to succeed in his purpose of casing some other result
General Principle: The foresight of virtual certainty can be used as an evidence of intention.
Hyam v DPP [1974] 2 All ER 41, HL
Facts: The Defendant, who was a man’s lover, became suspicious of his relationship with another woman. She went to the other woman's house, poured petrol through the letter-box, and lit it, causing a serious fire. The woman’s two daughters died in the fire, and the Defendant was charged with their murder. Her defence was that she intended only to frighten the woman into breaking off her relationship with her lover and that he had not intended to kill anyone. Ratio: Lord Hailsham LC said it was sufficient for murder that the Defendant knew there was a serious risk of death or grievous bodily harm and went on to commit the acts with the intention of exposing a potential victim to such a risk. Lords Diplock and Kilbrandon dissented as to the sufficiency of grievous bodily harm, but all agreed that foresight was as good as intention. Application: The House of Lords by a majority dismissed the Defendant's appeal against conviction. This decision flew in the face of Section 8 of the Criminal Justice Act 1967 and is now generally regarded as having been wrongly decided.
General Principle: It is for the jury to decide that what degree of foresight is required for an inference of intention.
R v Hancock & Shankland [1986] 1 All ER 641, HL
Facts: During the coal miners' strike, two striking miners decided they would try to stop non-strikers from getting to work. They stood on a bridge over the motorway and when they saw a taxi approaching in which a blackleg was travelling, they pushed over a lump of concrete meaning for it to land on the road in front of the taxi. In fact, the concrete hit the taxi itself and killed the taxi-driver, and the two miners were charged with murder. Ratio: The greater the probability of a consequence, the more likely it is that it was foreseen. If it was foreseen, the more likely it is that it was intended. But it is entirely up to the jury to decide what degree of foresight is required for an inference of intention and no simple formula can replace the jury's right and duty to make its own decision. Application: The Defendants could have easily foreseen that their act could lead to these consequences. Therefore, his conviction was confirmed.
General Principle: The necessary intention can be inferred when death or serious bodily harm was a virtual certainty.
R v Nedrick [1986] 3 All ER 1, CA
Facts: The Defendant set fire to a house belonging to a woman against whom he had a grudge. The woman's child died in the fire. Ratio: The trial judge (before the judgements in Moloney and Hancock & Shankland had been published) directed the jury as to intention in a way that was now clearly inappropriate, and the Court of Appeal quashed the defendant's conviction for murder and substituted manslaughter. Where the charge is murder, said Lord Lane CJ, and in the rare cases where a simple direction as to intention is not enough, 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 realised such was the case. Where a man realises that it is for all practical purposes inevitable that his actions will result in death or serious harm, the inference might be irresistible that he intends that result, however little he might desire or wish it to happen. The decision is one for the jury to be reached on a consideration of all the evidence. Application: The Court of Appeal held that there was a clear misdirection of the jury by the judge. The directions illustrated are the ones the jury should have followed.
General Principle: The jury is not entitled to find the necessary intention unless death or serious bodily harm was an obvious conclusion to the defendant’s act.
R v Woollin [1998] 4 All ER 103, HL
Facts: A man lost his temper with his three-month-old son and threw the child onto a hard surface, causing head injuries from which the child died. The Defendant was charged with murder and the judge directed the jury, largely in accordance with the Nedrick guidelines, that they might infer the necessary intention if they were satisfied that the Defendant realised there was "a substantial risk" of serious injury. Ratio: The House of Lords said this would enlarge the scope of murder and blur the distinction between that and manslaughter. The jury, said Lord Steyn, should be directed that they are not entitled to find 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 realised such was the case, but should be reminded that the decision is one for them on a consideration of all the evidence. Application: The House of Lords accepted the appeal of the Defendant. The Courts, by leaving the direction on oblique intention in the negative and thus giving juries some leeway to avoid convicting, have allowed juries to make moral judgments in appropriate circumstances.
MOTIVE AND INTENTION
Intention must not be confused with motive or desire. Even though the defendant has a motive (for example, a reason to kill) that does not mean that when he commits the actus reus he can be automatically be taken to have the intention to kill.
General Principle: Motive is not same as intention.
Chandler v DPP [1964] AC 763
Facts: The Appellants were against nuclear weapons and planned a non-violent action to immobilise an aircraft at a RAF station for six hours. They were convicted of conspiracy under section 1 of the Official Secrets Act 1911 since they entered ‘a prohibited place for a purpose which is prejudicial to the safety or interests of the state’. Ratio: If a person enters a prohibited place in order to cause obstruction and interference which is prejudicial to the defence dispositions of the state, an offence is committed. The Defendant cannot claim that his ultimate purpose was not to commit the offence. Application: The judge held that where the jury was satisfied that the appellant’s immediate purpose was proven, it was right to find the appellant’s guilty. Their motive behind their action was irrelevant as they still intended the method of achieving it.
RECKLESSNESS
The Defendant takes an unjustified risk that might cause a serious consequence with awareness of that risk.
General Principle: It is necessary to establish that the Defendant took an unjustifiable risk to establish recklessness as clarified in the following case.
Cunningham [1957] 2 QB 396 (CA)
Facts: Cunningham was convicted of unlawfully and maliciously causing the victim to take a noxious thing which endangered her life, contrary to section 23 of the Offences Against the Person Act 1861. Ratio: It was held that the term ‘‘maliciously’ in an offence assumes foresight of the consequence. Hence, while dealing with offences involving ‘malice’ it is not enough that the risk would have been obvious to the Defendant if he had reconsidered his decision. He must know the existence of ‘risk’ and must consciously take it. The prosecution will have to prove that the Defendant had a particular state of mind while committing the offence as opposed to considering the state of mind of any reasonable person. Application: An actual intention to cause the kind of harm that was done is important. The Defendant was convicted.
General Principle: The Defendant may escape liability if he was subjectively unaware of the risks.
R v G and Another [2003] UKHL 50
Facts: Two boys, aged 11 and 12 went to the back yard of a shop and lit some newspapers and threw them under a wheelie bin. The burning papers set fire to the shop which spread to the eaves of building which consequently caused the roof to fall, amounting to £1million worth of damage. The boys were charged with reckless arson to the building contrary to Section 1(3) of the Criminal Damage Act 1971. Ratio: The House of Lords held that subjective recklessness (defined in Cunningham) should apply to criminal damage. Lord Bingham referred to the definition of recklessness laid down in Clause 18 of the Law Commissions Draft Criminal Code (1989):
A person acts recklessly within the meaning of Section 1 of the Criminal Damage Act 1971 with respect to –
i) a circumstance when he is aware of a risk that it exists or will exist;
ii) a result when he is aware of a risk that it will occur;
and it is, in the circumstances known to him, unreasonable to take that risk.
Application: Hence, since the boys were subjectively unaware of the risk their convictions were quashed. The House of Lords established that the legal test of recklessness coming from Cunningham and R v G was the same but they referred to different crimes. The test from R v G covers cases relating to criminal damage and the Cunningham test is applicable to all the other scenarios. The test from R v G overturns and confines Caldwell recklessness to the history books.
TRANSFERRED MALICE
Whether the Defendant has the mens rea of a particular crime and he acts causing the actus reus of that crime, he cannot say that the actus reus was carried out in a way that was not exactly as he intended it.
General Principle: An intention to kill one person can be transferred to another if the second is the one who actually dies from the Defendant's act.
R v Mitchell [1983] 2 All ER 427
Facts: The Defendant and another man became involved in a scuffle in a Post Office. The Defendant pushed the other man, who fell onto an elderly lady, causing her injuries from which she later died. Ratio: The Court of Appeal upheld the Defendant’s conviction for manslaughter as his intention to assault the man was transferred to the elderly lady, the victim. Application: The Court saw no reason to hold that an act calculated to harm someone could not be transferred to manslaughter on that person that was actually killed by the action of the Defendant.
General Principle: If two people are engaged in serious conflict and in the process one kills an uninvolved person, the other engaged party would be treated as in a joint enterprise with the killer. Coupled with transferred malice, when one of the parties kills another, his malice transfers, and so to is the other combatant guilty of the murder (by being in conflict with the person who killed another while trying to kill you.)
R v Gnango [2011] UKSC 59
Facts: The defendant was a teenager engaged in gang warfare, and had been in conflict with another person known as TC, took a gun and went to look for him. While out searching in a car park, the defendant came under fire from a person known as “Bandana Man” (suspected to be TC). The defendant returned fire. a 26 woman crossing the car park was shot by a BM, and died. BM was not apprehended and nor was TC (if they were different people). The defendant was charged with murder under the joint enterprise rules. The issue was whether the defendant could be guilty of murder, through a join between the principles of joint enterprise and transferred malice Ratio: The law on joint enterprise could treat two defendants as acting together, even if they were only engaged in attempting to harm or kill one other. Therefore, if one kills another while attempting to kill his target, as his malice/intention will be transferred toward the victim, thus whoever he is in joint enterprise with is also guilty. Application: Therefore, as BM intended to kill the defendant, his malice is transferred when he kills the victim, and because the defendant was in conflict with BM, he was in joint enterprise and hence inherited BM's liability. The defendant was guilty.
CO- INCIDENCE OF ACTUS REUS AND MENS REA
The actus reus and the mens rea must normally coincide in time, but the courts are prepared to take a broad view.
General Principle: The requirement that the actus reus and mens rea must go together may be interpreted by the court in the light of the facts of the case.
R v Thabo Meli and others [1954] 1 All ER 373
Facts: The Defendants took the victim to a hut. They beat him. Believing him to be dead, they threw his body over a cliff in the attempts to make it look as an accident. The victim was still alive when thrown and he died afterwards from exposure. The Defendants tried to argue that the actus reus on which the death for exposure was based was separated in time from the mens rea. Ratio: The court pointed out that it is not possible to divide up what is one series of acts. Application: The court convicted the Defendants on the ground that all their acts were set out to achieve a specific plan. The fact that their purpose was achieved before the actual death of the victim did not separate the two elements of actus reus and mens rea.
General Principle: In case of a continuing act, it is enough that the Defendant had mens rea at some point during the act. This is known as the ‘continuing act theory’.
Fagan v Metropolitan Police Commissioner [1969] 1QB 439
Facts: Fagan drove on a policeman’s foot accidentally. When asked to move off his foot by the policeman, Fagan refused to comply. He was charged with assaulting a police officer in the execution of his duty. At the time of driving on the foot, which was actus reus of the crime he did not have mens rea. Ratio: Whether an action of the Defendant is not at first criminal since the Defendant has no mens rea, but it becomes criminal when the Defendant intentionally decides to carry out the action, the exact coincidence between the two elements become irrelevant. Application: Even though the defendant did not have the mens rea at the beginning of his unlawful action, he had it at some point during the act. Therefore, the Defendant was convicted since he intentionally left the wheel on the officer’s foot.
THE TRANSACTION PRINCIPLE
General Principle: The courts sometimes categorise the series of acts of the Defendant into a transaction and it is enough to establish that the Defendant has mens rea at some point during this transaction.
R v Thabo Meli and others [1954] 1 All ER 373, PC (South Africa)
Facts: Thabo Meli and his friends took their victim to a small hut and beat him over the head intending to kill him. Thinking they had succeeded, they rolled his body over a cliff to make the death appear accidental. In fact, the victim survived both the beating and the rolling, but died from exposure shortly afterwards. Meli and the others were convicted of murder. Ratio: The Privy Council, dismissing their appeal, said that where the actus reus consists of a series of linked acts, it is enough that the mens rea existed at some time during that series, even if not necessarily at the time of the particular act which caused the death. Application: The fact that mens rea existed at some point during the transaction was enough to uphold their conviction.
CAUSATION
The two elements of actus reus and mens rea can be looked at in terms of causation. A link between the two may be considered sufficient whether they cooperate in reaching the outcome.
General Principle: The problem of co-incidence of actus reus and mens rea can be overlooked by considering the act done with the mens rea (the first act) as causing the subsequent acts.
R v Masilela (1968) (2) SA 558
Facts: The Defendants hit the victim over his head, left him on his bed and then set the house on fire. Evidence showed that the death of the victim was caused by the fire. Ratio: The judge held that the earlier acts of Defendants which were committed with the mens rea of murder were the cause of the death because if the victim had not been unconscious he would not have stayed in the house. Application: The Defendants’ earlier acts of beating were done with mens rea of murder and were the actual cause of death.
MISTAKE
There are circumstances in which the court may take into consideration a mistaken consideration of the Defendant. Nevertheless, the defence of ignorance of the law does not allow the escape from liability.
General Principle: The type of mistake will determine the effect on the Defendant’s liability when he commits a mistake.
IGNORANCE OF LAW
General Principle: The Defendant’s ignorance of the law does not absolve him of his liability. Hence, the saying, ‘ignorance of law is no excuse’.
R v Lee [2000] EWCA Crim 53
Facts: The defendant had failed a breath test. He looked at the test result and saw an air bubble which pushed the test over the limit. When the officer tried to arrest him for drink driving the defendant punched him. He was convicted of assaulting a police officer with intent to resist arrest under s.38 Offence against the Person Act 1861. He contended that he genuinely believed that the arrest was unlawful. Ratio: If the mistake was one of the law, the defence will not apply. Application: As the mistake was one of law, the defendant was found guilty.
MISTAKES THAT NEGATE THE MENS REA
General Principle: A mistake of some element of the actus reus can prevent the Defendant from having the required mens rea.
R v Smith [1974] 1 All ER 632
Facts: A tenant with his landlord's consent, installed in his flat some electrical wiring for stereo equipment and covered it over with ceiling and wall panels and floor boards. When he surrendered his lease, he tore away the panels (which as a matter of land law had now become the landlord's property) to remove the wiring and was charged with criminal damage. Ratio: Allowing his appeal and quashing his conviction, the Court of Appeal declined to apply Section 5(2)(a) of the Criminal Damage Act 1961, but said that where the Defendant honestly believed the property was his own he lacked the necessary mens rea with regard to the circumstances. Application: The Defendant did not recklessly or intentionally damage property belonging to the other as required by the Criminal Damage Act.
SUMMARY
The concept of mens rea refers to the mind of the person committing the unlawful action.
Mens rea may constitute intention, recklessness, malice, negligence and dishonesty.
Intention is the highest form of mens rea essential in order to establish murder.
Recklessness is the form of mens rea used in non-fatal offences against persons.
‘Transferred malice’ is a principle that refers to those circumstances where the Defendant has actus reus and mens rea but the way he carried out the actus reus was not exactly as he planned.
The elements of actus reus and mens rea must coincide at some point in time.
The court might take into consideration in some specific circumstances whether the Defendant has mistakenly acted.