1 Mens Rea Intention

Mens Rea - Intention Elements of Criminal Liability
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Elements of Criminal Liability
Mens Rea - Intention
1
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Objectives
Identify the mens rea of a crime

Distinguish between direct and indirect
intention

Apply intention to key examples of case law in
this area
2
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Test yourself
3
Based on what you understand
of the actus reus of murder what
do you think the criminal liability
might be in the following cases?
Remember to use CASE LAW
Francesca is on a fairground
ride, during the course of which
the person next to her attempts
to indecently assault her.
Desperate to get away, she
jumps out and, being hit by the
following car, is fatally injured.
Gill is unable to tolerate her
unhappy marriage to Henry any
longer. After Henry has gone to
bed, she takes a knife and stabs
him. Unknown to here, the
equally desperate Henry was
already dead having taken a
large overdose of drugs half and
hour earlier.
Ibrahim is attacked by Daksha
and suffers serious though not
fatal injuries. On its way to take
Ibrahim to the hospital, the
ambulance is involved in a high-
speed car crash in which the
driver of the ambulance and
Ibrahim are killed.
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Test yourself
answers
4
Francesca D guilty chain not
broken as this was an
acceptable level of escape R v
Roberts
Gill Not guilty of murder (fails
but for test) R v White (1910)
but would be guilty of attempted
murder of course
Daksha D is guilty of murder
legal causation as this is still a
substantial cause of Ibrahims
death R v Smith (no novus
interveniens)
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What is the mind so important?
Usually because it is the thing that turns an innocent
action into a guilty one

5
Can we infer mens rea from an action?
Which of these situations could you infer a mens rea in?

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Dishonestly appropriate
property belonging to another
with the intention to
permanently deprive the
other of it
S.1 Theft Act 1968

How much guilt does the mind need?
it depends on the crime!

6
Some need more than one
element
Generally speaking, the more serious the
crime the higher the level of mens rea
Murder Manslaughter

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Basic and Specific Intent
7
Basic
1. Mens rea is intention or
recklessness
2. D does not have to have
foreseen any
consequence or harm
beyond that in actus reus
3. Prosecution can succeed
if D is proved to be
reckless
4. Examples criminal
damage, (D intends to do
damage or is reckless as
to whether damage is
done)
Specific
1. Mens rea goes beyond
actus reus
2. D has some ulterior
purpose in mind
3. Prosecution must prove D
had particular intention
4. Intent has to be direct or
Indirect intention only
5. Examples murder, theft
are examples intention
to kill or cause GBH or
intention to permanently
deprive and dishonesty
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A man is taken to intend
the natural consequences
of his acts but the
motive of a mans act and
his intention in doing the
act are, in law, different
things

Why might motive still be
relevant in a criminal court?

What about motive?
8
R v Steane 1947
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How do we prove intention?
9
Foresight of consequences

Impossible Unlikely Possible Probable Highly
probable
Virtually
certain
Certain

For each of the following scenarios, decide how likely it is and put the number in the box
1. A man fires a shotgun out of the window of a remote farmhouse
2. A man fires a shotgun into the air on the moon (no other astronauts around)
3. A man fires a shotgun which he is holding directly at the head of his victim
4. A man fires a shotgun at the head of someone stood in his doorway.
5. A man fires a shotgun out of the window of a shop in the high street
6. A man fires a shotgun at a bus queue six foot away.
7. A man fires a shotgun in the direction of a bus queue twenty feet away
Now decide at what
point you think
they should be
liable for the
murder of V (in
other words when
might we decide
that they have
intended the
consequences)
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Direct vs Indirect Intention
10
D wants to scare occupiers of flat
so that they move out, so pushes
lighted paper through letter box
A fire starts in flat. Occupiers
scared and move out
Occupiers child dies as a
result of fire that starts
Achieves aim Direct intent Indirect intent
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a decision to bring about,
in so far as it lies within the
accused power (the
prohibited consequence),
no matter whether the
accused desired that
consequence of his act or
not

Direct Intention
You both foresee and intend the consequence which occurs

11
R v Mohan 1975

Which of the following has
direct intent?

1. I point a gun and pull the
trigger
2. I set fire, intending to to
scare, and someone dies
3. I say I am going to kill you
and then put my hands around
your neck
4. I put my hands up and walk
towards you

Have you
understood?
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D wants to destroy a
package on an aeroplane to
collect the insurance. What
would he be charged with if
he planted a bomb timed to
go off in mid flight if the
only definition of intention
we had was direct
intention?

Indirect Intention
What if D intends one consequence (e.g. arson) but another occurs (e.g. murder).
Clearly we cant say that he has a direct intent to kill

12
Problem

In these circumstances:

1. Does he still have legally
intend the consequences?
2. Should he have foreseen
them?
3. Is he still legally liable for
them?

Consider
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13
DPP v Smith [1961] AC 290 House of Lords
A policeman tried to stop the defendant from driving off with stolen goods by jumping
on to the bonnet of the car. The defendant drove off at speed and zigzagged in order
to get the police office off the car. The defendant argued he did not intend to harm the
policeman. The policeman was knocked onto the path of an oncoming car and killed.
The judge instructed the jury to apply an objective test when making their decision.
The defendant was convicted of murder.

Principle The jury convicted of murder and the defendant appealed on the grounds
that there was a mis-direction and that a subjective test should apply. The Court of
Appeal quashed his conviction for murder and substituted a manslaughter conviction
applying a subjective test. The prosecution appealed to the House of Lords who re-
instated the murder conviction and held that there was no mis-direction thereby
holding an objective test was applicable.
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Oblique (Indirect) Intent
14
The courts needed to form a
definition because of the
above type of scenario
Need to widen net to
Catch most murder
suspects
Murder has no
alternative mens rea
and so forms the
difference between murder
and manslaughter
Courts had to formulate
definition from case law
Need to produce a definition
narrow enough so as to
reserve liability for murder
to only most serious cases
Matter now largely resolved
and key cases are Nedrick,
Woollin and Mathews and
Alleyne but the journey is
important
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s.8 A court or jury, in determining whether a
person has committed an offence:

(a) shall not be bound in law to infer that he
intended or foresaw a result of his actions by
reasons only of its being a natural and probable
consequence of those actions; but

(b) shall decide whether he did intend or foresee
that result by reference to all the evidence,
drawing such inferences from the evidence as
appear proper in the circumstances.
Parliament Reacts with an Act
15
Criminal Justice Act 1967
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Research the
Case Law to
complete the
diagram
Hyam [1975]
High degree of
_______________
__________ [1985]
______________
consequences
Hancock and Shankland [1986]
Greater degree of ___________
greater degree of
_____________________
Nedrick [1986]
________________
consequences
_______ [1998] (HL)
Virtual
certain_________
Woolin (CA)
More than a slight
_____ of harm
T
e
s
t

_
_
_
_
_
_
_
_

Arguably creates unacceptable
overlap with ___________
Recklessness
Virtually certain
Probability
Probability
Moloney
Woolin
Natural
Foresight
Widens
Narrows
Risk
Consequences

But the courts still do not think s.8 is clear enough
Development of the test on Foresight of Consequence

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Hyam [1975]
High degree of
probability
Maloney [1985]
Natural
consequences
Greater degree of probability
greater degree of foresight
Nedrick [1986]
Virtually certain
consequences
Woollin [1998] (HL)
Virtual certain
consequences
Woolin (CA)
More than a slight
risk of harm
T
e
s
t

n
a
r
r
o
w
s

Arguably creates unacceptable
overlap with recklessness
Solution

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18
R v Hyam [1975] AC 55 House of Lords
The appellant had been having a relationship with a Mr Jones. Mr. Jones then took up
with another woman Mrs Booth and they were soon to be married. On hearing this
news, the appellant drove to Mrs Booth's house at 2.00am and poured petrol through
the letter box and ignited it with matches and newspaper. She then drove home and
did not alert anyone of the incident. Mrs Booth and her young son managed to escape
the fire but her two daughters were killed. The trial judge directed the jury: If you are
satisfied that when the accused set fire to the house she knew that it was highly
probable that this would cause (death or) serious bodily harm then the prosecution will
have established the necessary intent. The jury convicted of murder. The conviction
was upheld by the Court of Appeal. The appellant appealed to the House of Lords on
the grounds that knowledge that a certain consequence was a highly probable
consequence does not establish an intent to produce that result but is only evidence
from which a jury may infer intent.
Principle The appellant's conviction for murder was upheld as there was no
misdirection.
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19
R v Maloney (1985) 2 WLR 648
D and V (Ds stepfather of whom D was very fond) had a contest as to loading and
firing a shotgun. D a serving soldier shot V without aiming. V taunted D to fire the gun.
Incident occurred during a late night of drinking.
Principle Lord Bridge: foresight of consequences, as an element bearing on the
issue of intention in murder, or indeed any other crime of specific intent, belongs, not
to the substantive law, but to the law of evidence ... In the rare cases in which it is
necessary for the judge to direct a jury by reference to foresight of consequences, I do
not believe it is necessary for the judge to do more than invite the jury to consider two
questions. First, was death or really serious injury in a murder case (or whatever
relevant consequence must be proved to have been intended in any other case) a
natural consequence of the defendants voluntary act? Secondly, did the defendant
foresee that consequence as being a natural consequence of his act? The jury should
then be told that if they answer yes to both questions it is a proper inference for them
to draw that he intended that consequence.
Not guilty of murder
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R v Maloney [1985]
20
Consider

1. Foresight of consequence
are only evidence of intention
2. Bridge LJ set down a two
stage test (to decide whether
consequences were foreseen) to
be put before juries
(a) Was death or really serious
injury a natural consequence
of the defendants act? AND
(b) Did D foresee that
consequences as being a
natural result of his act?
Two important sections to
this decision
1. What has Lord Bridge
Forgotten?

2. Should oblique intent
have
even been an issue here?
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21
Hancock and Shankland (1986) 2 WLR 257
In the midst of a miners strike in which they were participating, H and S pushed a
concrete block and post from a bridge over the road along which V was driving M; the
latter was killed in the collision.

Principle Lord Scarman: The issue of probability regarding death or serious injury is
critical to determining intention, yet Moloney omitted any reference in its guidelines to
this issue. [T]herefore, the Moloney guidelines as they stand are unsafe and
misleading. They require a reference to probability. They also require an explanation
that the greater the probability of a consequence the more likely it is that the
consequence was foreseen and that if that consequence was foreseen the greater the
probability is that that consequence was also intended.

H & S were Not Guilty of murder
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22
Consider
1. What did the court do to
the decision in Maloney?

2. What was the decision
here?
the greater the probability of a
consequence the more likely it is that the
consequence was foreseen and this if that
consequence was foreseen the greater the
probability is that the consequence was
also intended.
This case addressed the ambiguity
stating that reference should be made
to the degree of probability that the
prohibited outcome would result from
the defendant achieving his primary
purpose. Their reasoning was as
shown on the next slide
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The greater the
probability of the
consequence
The more likely it was
that the result was
foreseen
The higher the level of
foreseeability of the
result
The more likely it was
that the result was
intended.
Hancock and Shankland
Moloney &
Hancock and
Shankland

Conflicted in their
formulation of an
appropriate test of
oblique intention
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24
R v Nedrick [1986] 1 WLR 1025 Court of Appeal
The appellant held a grudge against Viola Foreshaw. He went to her house in the
middle of the night poured paraffin through her letter box and set light to it. A child died
in the fire. The trial was held before the judgment was delivered in Maloney. The judge
directed the jury as follows: "If when the accused performed the act of setting fire to
the house, he knew that it was highly probable that the act would result in serious
bodily injury to somebody inside the house, even though he did not desire it - desire to
bring that result about - he is guilty or murder. The jury convicted of murder and the
defendant appealed on the grounds of a mis-direction.
Principle There was a clear misdirection. The Court of Appeal reviewed the cases of
Maloney and Hancock and Shankland and formulated a new direction from the two
decisions. Lord Lane CJ: "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.
D was guilty of manslaughter not murder
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Nedrick [1986]
25
Consider
1. What are the two tests in Nedrick

2. What do you notice about the the
two branches of the test?

3. How might this have changed the
outcome for D in Hyam [1975]

4. Why might the word infer be
important here?
Nedrick addressed the conflict and formulated the
virtual certainty test which conveyed inevitability
(Moloney) and foreseeability (Hancock and
Shankland)

As Nedrick lacked the authoritative status of a
House of Lords decision (it was a Court of Appeal
ruling) subsequent case law eroded the narrow
virtual certainty test.
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26
Woollin (1997) Cr App R 97 CA
D threw his 3 month old baby son on to a hard surface. The baby suffered a fractured skull and
died. The trial judge directed the jury that if they were satisfied the defendant "must have
realised and appreciated when he threw that child that there was a substantial risk that he
would cause serious injury to it, then it would be open to you to find that he intended to cause
injury to the child and you should convict him of murder." The jury convicted of murder and also
rejected the defence of provocation. The defendant appealed on the grounds that in referring
to 'substantial risk' the judge had widen the definition of murder and should have referred to
virtual certainty in accordance with Nedrick guidance.

Principle The Court of Appeal rejected the appeal holding that there was no absolute
obligation to refer to virtual certainty.
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27
Woollin (1997) Cr App R 97 CA
D threw his 3 month old baby son on to a hard surface. The baby suffered a fractured
skull and died. The Court of Appeal held that there was no absolute obligation to refer to
virtual certainty.

Principle House of Lords held: Murder conviction was substituted with manslaughter
conviction. There was a material misdirection which expanded the mens rea of murder
and therefore the murder conviction was unsafe. The House of Lords substantially
agreed with the Nedrick guidelines with a minor modification. The appropriate direction
is: "Where the charge is murder and in the rare cases where the simple direction 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 appreciated that such was the case. The decision is one for the jury to be
reached upon a consideration of all the evidence.
Not guilty of murder guilty of manslaughter
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Woollin [1998] House of Lords
28
Read the extract and answer the following
questions in as much detail as you can
1. Summarise the key facts of the case.
2. Do Woollins actions amount to the AR
of murder?
3. Can you spot the mistake made by the
trial judge?
4. What does Lord Steyn think of the
Nedrick test? Do you agree?
5. Is the Nedrick test absolute? Why/
why not?

In other words, if the jury is able to say
yes to both branches, do they have to
find that he has the intention and convict
him of murder?
Ultimately, the Court of Appeal in Woollin
accepted a test based upon substantial risk
which created a dangerous overlap with
recklessness (therefore blurring the line between
murder and manslaughter)

The House of Lords reversed the CA decision,
restored the virtual certainty test and set to rest
much of the uncertainty.
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29
R v Matthews & Alleyne [2003] 2 Cr App R 30 (461) CA
DD appealed against their conviction for murder following the death of a young man (a
non-swimmer) whom they had thrown from a bridge into a river.

Principle The Court of Appeal affirmed the conviction, which it did not consider unsafe
in the light of the evidence, but expressed concern that the Nedrick/Woollin evidential
rule should not be treated as if it were a rule of law. A defendant's foresight of virtually
certain death does not automatically require the jury to find that he intended that
result: it is merely evidence (albeit often very strong evidence) from which the jury may
draw that conclusion.
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R v Matthews & Alleyne [2003] The final word?
30
Judgement
the law has not yet reached a definition
of intent in murder in terms of
appreciation of a virtual
certaintyhowever, we think that, once
what is required is an appreciation of
virtual certainty of death, and not some
lesser foresight of merely probable
consequences, there is very little to
choose between a rule of evidence and
one of substantive law.
http://news.bbc.co.uk/1/hi/uk/648334.stm
Although this case has some technical difficulties
it further supports the decisions in Nedrick and
Woollin.
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Exam tip
31
An ability to distinguish direct
and oblique intention is crucial.
Try answering the following
question to identify the type of
intention.
Remember to use CASE LAW
Bob is a member of Horse Meat
Forever, a group which believes
that people should only be
eating Horse Meat. To get
publicity for his cause, he plants
a bomb in Buckingham Palace.
He phones the police to let them
know that it will explode in 15
minutes. The operator, Susie,
mishears and thinks he says 50
minutes.

They evacuate the Palace, and
after 15 minutes, Jeremy the
bomb disposal expert goes in.
The bomb explodes, killing
Jeremy.
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Exam tip
32
What was the defendant trying to
achieve?

If the answer is the same as the
result/consequence then it is an
issue of direct intention and
should be straightforward to
establish liability.

If the answer is something other
than the result or consequence
then turn to oblique intention.
Was the result/consequence an
inevitable consequence of
achieving his primary purpose.

If so this is likely to be oblique
intention so apply the virtual
certainty test from Woollin and
Matthews and Alleyene.

If you are not sure think about
whether the facts suggest that
the defendant must have seen
death out of the corner of his
eye when embarking on his
primary objective as this also
points towards oblique intent.
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Objectives
Identify the mens rea of a crime

Distinguish between direct and indirect
intention

Apply intention to key examples of case law in
this area
33
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Plenary
34
What do you think might be the
liability for murder in the
following cases? Give your
reasons.
Janet a member of an extreme
terrorist group enters a pub
carrying a holdall containing a
bomb. She shouts a warning and
immediately runs out. Very
shortly afterwards the bomb
explodes killing three people
who were unable to get out in
time.
Martin is in severe financial
trouble. He places some bogus
cargo in a freight plane, primed
with a bomb and timed to
explode in mid-air. In this way he
hopes to claim insurance on the
phoney goods. The plane is
destroyed at 30,000 feet and all
the crew are killed as a result.
Sam interferes with the power
steering of his girlfriend Gertrudes
car with the intention of stopping her
from meeting a secret lover. On
leaving her drive, Rosie turns into
the road but cannot avoid an
approaching vehicle. The oncoming
car crashes into her and she is killed
immediately.
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Plenary
35
Answers
Janet Direct intention to kill or
cause really serious harm
(Vickers) Mohan. The length of
time on the warning would
intimate a direct intent if the fuse
was longer then would have to
refer to Woollin again
Martin Classic direction as
originating in Hyam but
confirmed ultimately in Woollin
as this is a virtual certainty that
the D would have a foresight of
the consequences of his actions
Sam Not so clear this time.
Would the steering constitute a
virtual certainty as per Woollin?
He does not have a direct
intention and this would be a
clear case of inference on behalf
of the jury.

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Mens Rea - Intention Elements of Criminal Liability

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