The document discusses the concepts of mens rea (guilty mind) and actus reus (guilty act) in criminal law, focusing on the meaning of intention and how it has been interpreted by courts. It examines cases related to direct intention, oblique/indirect intention, foresight of consequences, recklessness, gross negligence, and the doctrines of continuing acts and one transaction. However, it concludes that the law on intention remains unclear and unsatisfactory, and legislation is needed to properly define intention.

1. Mens Rea Exemplar
The meaning of intention in criminal law has now been clearly settled by
decisions of the courts and there is no longer any need for parliament to legislate
upon the matter. Critically consider whether you agree with this statement.
Mens rea is Latin for guilty mind and concerns the criminal intention of the D when
the actus Reus is committed. It is a necessary requirement of most criminal offences
except those classed as strict liability. The most common types of mens rea are
intention and recklessness. Having the necessary intention is a subjective test that
requires the court to establish what the D was actually thinking. It has two distinct
meanings: direct and indirect (oblique) intention. Direct intention requires that the D
foresaw a particular result as a certainty and wanted to bring it about. It was defined
in Maloney as ‘a true desire to bring about the consequences’. This makes it clear that
the D’s motive or reason for doing the act is not relevant. The important point is that
the D decided to bring about the prohibited consequence. This can be illustrated by
looking at the s18 OAPA offence. The D must wound, cause GBH or intend to resist
arrest. If D did not intend one of these then he cannot be guilty. For direct intention it
is immaterial whether or not the desired result is achieved since inchoate offences are
still possible e.g. attempted murder. The law is clear on direct intention.
Oblique intention occurs where the D does not necessarily desire an outcome but
realises that it is almost (but not quite) inevitable. There are however problems. What
does almost (but not quite) inevitable really mean? What probability (of the result
occurring) is sufficient to find intent? The main problem with proving intention is in
cases where the D’s main aim was not the prohibited consequence. He intended
something else. If in achieving the other thing the D foresaw that he would also cause
these consequences then he may be found guilty. This idea is referred to as foresight
of consequence. The starting point for foresight of consequence is s8 of the CJA 1967
which states that ‘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 reason only of it being a natural and probable consequence of those
actions; but b) shall decide whether he did intend of foresee that result by reference to
all of the evidence, drawing such inferences from the evidence as appear in proper
circumstances’. The wording has been subject of many cases with the leading case
now being Woollin. The first of these cases however was R V Maloney. D and V had
been drinking heavily. They decided to have a race to see who could load and fire a
gun in the fastest time. Moloney was quicker and pointed at the V who challenged
him to fire it. He did and the V died as a result. The HOL’s confirmed that even where
it was not someone’s desire, purpose and so on, the jury is entitled to infer that he still
intended a result where D knows that the result is a natural consequence of his actions
and the D realised this. In this case the HOL ruled that foresight of consequence is
only evidence of intention. It is not intention in itself. Lord Bridge stated that jurors
should be told to consider two questions: 1) Was death or really serious injury a
natural consequence of the D’s act? 2) Did D foresee that consequence as being a
natural result of his act? The problem with these questions is that the word probable is
not mentioned. S8 of the CJA 1967 uses the phrase natural and probable
consequence. Lord Bridge only referred to a natural result. This omission of the word
probable was held in Hancock and Shankland to make the guidelines defective. The
guidelines therefore are no longer law. They were unsafe and misleading. The D’s

2. were striking minors. They pushed blocks of concrete from a bridge above a road. The
concrete killed a taxi driver. They claimed that they had not intended to injure or kill
anyone but merely to block the road. It was held that in such cases the probability of
death arising from the act done is important ‘if the likelihood that death or serious
injury will result is high the probability of that result maybe seen as overwhelming
evidence of the existence of the intent to kill or injure’. In Nedrick the COA thought
that the judgements in the two earlier cases of Moloney and Hancock and shankland
needed to be made clearer. D had a grudge against a woman. He poured paraffin
through the letterbox of her house and set it alight. A child died in the fire. D was
convicted of murder but COA quashed the appeal and substituted it with one of
manslaughter. To make the law decided in Moloney, Hancock and nedrick easier for
the jurors to understand and apply in murder trials, the CA said that it was helpful for
the jury to ask themselves 2 questions: 1) how probable was the consequence which
resulted from D’s voluntary act? 2) Did D foresee that consequence? It was necessary
for the consequence to be of a virtual certainty and for the D to have realised that if
this was so then there was evidence from which the jury could infer that D had the
necessary intention. The standard direction given in nedrick was ‘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 as a result of D’s actions and
that the D appreciated that such was the case… The decision is one for the jury to be
reached on a consideration of all evidence’. This remained law until the case of
Woollen which held Nedrick was not helpful. The D threw his 3 month old baby
towards his pram. The baby suffered head injuries and died. The court ruled that the
consequence must have been a virtual certainty and that D must have realised this.
Where the jury was satisfied on both of these 2 points there was evidence of intention.
Here the nedrick direction was approved bar one amendment where lord steyn said it
had stood the test of time. The substitution of find for infer. The decision in Woolin
seems to create more problems than it solved. Does the substitution of the word find
improve the clarity of the direction to the jury? Another problem is whether the use of
the word find means that foresight of consequence is intention and not merely
evidence of it. In his judgement lord Steyn also went on to say that the effect of the
direction is that ‘a result foreseen as virtually certain is an intended result’. He also
pointed out that in Moloney the HOL’s had said that if a person foresees the
probability of a consequence as little short of overwhelming, this ‘will suffice to
establish the necessary intent’. Lord Steyn emphasised the word establish. This seems
to suggest that the HOl’s in Woollin regarded foresight of consequence as the same as
intention, when Moloney had clearly stated it was not. In later cases there have been
conflicting decisions on this point. In Re A doctors asked the courts whether they
could operate to separate conjoined twins when they foresaw that this would kill the
weaker twin. The COA clearly thought that Woollin laid down the rule that foresight
of consequence is intention making it part of the substantial law rather than evidential
law. Matthews and Alleyne confirmed that foresight of consequence even of a virtual
certainty is not intent but simply evidence of intention, leaving the meaning of
intention ever more unclear. It can be seen that the law on intention is still not in a
satisfactory state.
The law commission in its report proposed that intentionally should be defined as ‘a
person acts intentionally with respect to a result when: a) it is his purpose to cause it;
or b) 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 causing some other

3. result’. However even this definition could cause problems. What is meant by in the
ordinary course of events? The meaning of this phrase appears broader than the test of
the virtual certainty used in Nedrick/ Woolin. This could mean that such a change in
the law would lead to more people being convicted of offences which they did not
directly intend to commit. The law on intention has clearly not been settled as the
meaning of intention is ever more unclear and the law is not in a satisfactory state.
There is a clear need for legislation.
Recklessness covers the situation where a D takes an unjustifiable risk. It is a
subjective test and the D must recognise the risk that he or she is taking. In R V
Cunningham D tore a gas meter from the wall of an empty house. This caused gas to
seep into the house next door, where a woman was affected. He was not guilty since
he did not realise the risk of gas escaping into the next door house. He had not
intended to cause the harm, nor had he taken a risk he knew about. Previously two
different types of recklessness existed subjective and objective, but the objective form
is now extinct due to R V G and another. The D’s set fire to newspapers. They
thought that the fire would go out itself. In fact a bin caught fire and caused £1 million
worth of damage. The jury had to decide whether ordinary adults would have realised
the risk. The boys were convicted under the criminal damage act 1971. Initially it was
thought the decision in G and another only affected the law on recklessness in relation
to criminal damage. However the G and another version of recklessness have since
been applied by the court to other areas of law (attorney generals reference). This case
was a very different area of law as it involved the common law offence of wilful
misconduct in a public office. So now the law is clear. In Caldwell D had grievance
against the owner of a hotel. He got drunk and set fire to the hotel. D was charged
with arson under the CDA 1971. This requires that the D intended to endanger life or
was reckless as to whether life was endangered. D claimed that he was so drunk he
had not realised peoples lives might be endangered. In Caldwell the HOL’s’ held that
recklessness covered 2 situations. The first is where the D had realised the risk and the
second is where D had not thought about the possibility of any risk. This caused
problems in cases where the D was not capable of appreciating the risk. In Elliot V C,
a D was 14 year with learning difficulties. She did not appreciate the risk that she
might set a shed on fire. But she was found guilty because ordinary adults would have
realised the risk. This seemed unfair the girl was not blameworthy. If she had been
judged by the standard of a 14 year old with learning difficulties then she would not
have been convicted. It was absurd to judge her against the standard of ordinary
adults. As can be seen here the law on recklessness has been settled.
Gross negligence: A person is negligent if they fail to meet the standards of the
reasonable man. In Adamako the D was an anaesthetist carried out an operation on a
detached retina. One of the tubes supplying oxygen to the brain became disconnected
and the patient suffered a heart attack and brain damage. He died 6 months later.
Doctors giving evidence at the trial said that a competent anaesthetist would have
noticed the disconnection within 15 seconds and the D’s failure to react was abysmal.
The trial judge directed the jury on gross negligence and they convicted.
In relation to a continuing act, the D must have the actus Reus and mens rea at the
same time. This could lead to some criminals being acquitted therefore in cases where
the actus reus comes first the courts apply the continuing act doctrine, where the actus
reus is stretched overtime to the point where the D had the mens rea. In Fagan V

4. MPC, The COA held that once Fagan knew the car was on the officer’s foot he had
the required Mens Rea. As the actus Reus was still continuing the two elements were
then present together. In some cases the mens rea may come first. Here the courts
have applied the one transaction doctrine, where the same series of events is held to
be a single transaction and the D will be guilty if he/ she had both the actus Reus and
mens rea at the same point. In Thabo Meli V R D’s attacked a man and believed they
had killed him. They pushed his body over a cliff. The man survived the attack but
died of exposure. D’s were guilty of murder as the required mens rea and actus Reus
were combined in a series of events.