law- mens rea

Mens rea translates to guilty mind, it refers to the mental element of a crime. Mens rea must be proved alongside actus reus for a defendant (D) to be guilty of an offence. This was set out in Woolmington v DPP. Specific intent crimes require proof of a higher level of mens rea (ie intention) because of the moral blameworthiness attached to such crimes, whereas, basic intent crimes require proof only of recklessness.
Intention is the highest form of mens rea and has two types, direct and oblique. Direct intent is where the D’s aim, objective and purpose to being about the consequence, this is set out in R v Mohan, often referred to as purpose intent. It is D’s Aim, Objective and Purpose to bring about the prohibited consequence. If however the prosecution can not prove direct intent and the crime is a specific intent crime (ie. A crime in which intention must be proved) then they will try to prove oblique intent instead.
If however the crime is a basic intent crime (ie where only recklessness needs to be proven to satisfy the mens rea) and the prosecution cannot prove direct intent they will try to prove recklessness.
The main problem with direct intention or purpose intent is proving that D actually desired the prohibited consequence. Very rarely will a D admit that it was indeed his/her purpose to bring about an unlawful consequence. It is more common for D to claim that he did not foresee that actual consequence which occurred, and this has left the interpretation of intention open to ambiguity. When this is the case Oblique Intention (Foresight Intention) may be used.
Oblique intent (also known as foresight intent) covers the situation where the consequence is foreseen by the defendant as virtually certain, although is not desired for its own sake and the defendant goes ahead with his actions anyway.
To require proof that it was the defendant’s aim, objective and purpose to bring about a particular consequence may involve placing a very heavy evidential burden on the prosecution. Not surprisingly, therefore criminal law normally only requires proof of oblique intent (ie foresight intent) as opposed to direct intent. This is where the defendant had foresight of the consequences but perhaps did not desire them for their own sake which is currently tested using virtual certainty test from R v Nedrick as approved in R v Woollin and R v Matthews and Alleyne. This is a two part subjective test. Question one is “were the consequences a virtual certainty?” and secondly, “did the D know this?” this is illustrated in such cases like Dudley and Stephens and more recently RE: A (children) demonstrate that intention is not the same as motive although motive can potentially be the springboard from which intention is formed. Ultimately this term, intention, is a matter for jury to decide in light of all the circumstances of a case set out in Criminal Justice Act 1967 s.8.
Recklessness is where the one takes an unjustified risk, is a lower level of mens rea and is currently subjectively in accordance with the initial test from R v Cunningham as approved in G and R overruling objective recklessness from R v Caldwell. “Did the D foresee the risk but take it anyway?” is the current test the jury must apply in order to find a D was reckless.
Mens rea is clearly an essential element of proving fault in criminal liability. However there have been many criticisms and uncertainty. There is no statutory definition; therefore it is left to common law to define it. This has therefore created a debate known as the virtual certainty debate, which raises the question if foresight of consequence the same as intention?
There have been a number of cases that have attempted to define intention using different terms. In R v Hyams, used the term highly probable. While in R v Maloney they used the term Natural consequence. In Hancock and shankland they used the term the greater the probability the greater the chance the D intended the consequence, this therefore creates confusion within the law.
However in R v Nedrick and R v Woollin it appeared to settle the problem by establishing the virtual certainty test, but still problems exists has there appears to be two ways in which the virtual certainty test can be interpreted.
Re: A (children) 2000, the court seem to think that Woollin set out if the consequence are virtually certain and the D knew this, then there is intention, however in Mathews and Alleyne, the courts set out that virtual certainty is just evidence of intention.
Reforms suggested on intention by the law commission. The law commission has statutory definition of intention. The draft criminal code of 1989 set out a proposed statutory definition. The code refers to the defendant being aware that the consequences will occur, criticisms of this reform is that it simply re-phrases the virtual certainty test. Another criticism is that Sir John Smith said, the phrase “being aware” changes the line between intention and recklessness.
There have also been past problems with the law on recklessness, as set out above recklessness is now tested subjectively in accordance with R v Cunningham and R V G and R. This helps to avoid harsh decisions that were made in cases such as Elliot V C when Caldwell objective recklessness was in operation. However, that is not to say the current subjective test is not without its problems. Arguably, although the law is less harsh on defendants it is harsher on innocent victims and their families as a D can escape liability for basic intent offences by simply saying that he did not realise the risk.
It also means that there is little deterrence for basic intent offences if a D can simply say he did not foresee a risk. Another criticism of the subjective test is that it allows a defendant’s characteristics to be taken into account; this clearly creates a conflict with other areas of law such as loss of control where the test is an objective one.
Finally the subjective test creates a conflict of interest between public policy and legal principles as a arguably it is a matter of public policy to hold a D accountable for their actions in some instances when they did not foresee the consequences as in the case with the current law. It is arguably a matter of public interest and therefore just to hold a D responsible even if he did not foresee the risks as in the case with the intoxication.
Therefore in conclusion, the evidence presented above clearly illustrates the concepts surrounding mens rea are particularly complex. However mens rea still has many criticisms, which has been addressed by the Law commission the current law and on-going common law does and will have more flexibility to deal with a range of cases and does reflect different levels of criminal responsibility.