Mens Rea

Wednesday 9 July 2025

Lesson Objective:
To understand the elements
that defines intention
 What is Intention?
In Mohan 1975 intention was defined as:
“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”.

This makes it clear that the motive or reason for doing

something is not relevant. Motive is not the same as
intention.

Thus, a person who kills a loved one dying from a terminal

illness, in order to relieve pain and suffering, may well act
out of good motives. Nevertheless, this does not prevent
them having the necessary intention to kill see R v Inglis
[2011] 1 WLR 1110

The important thing is that D intended to cause the

prohibited consequence.
 Mens Rea
Mens Rea is the mental element of an offence.
All offences must have an actus reus and a mens
rea ( unless it is an offence of strict liability).
There are different levels of Mens Rea required for
different offences
To be guilty D must have the minimum level of
intention.
1.Specific intention- highest level. A person
who intends to commit a crime, can generally be
said to be more culpable than one who acts
recklessly.
2.Recklessness
3.Negligence
 Intention
 The case Wollin (1998) now stands as
the authority for the subjective test
for oblique intention, however, it is
important to look at the preceding
case to understand the problems face
by the courts in establishing a clear
definition for oblique intention.
 Intention
 Section 8 of the Criminal Justice Act
1967 provided a reasonable definition
for intention.

However most the judgements which

refer to intention suffer the defect
that the judges have been neither
clear nor precise in their use of
language; this has made must of the
judgement inconsistent, contradictory
 Direct and oblique intent
In most cases the D has what is known as
direct intent.
But can be situations where the D intends
one thing and the actual consequence
which occurs is something else
e.g Hankcock and Shankland 1986
The D intended to frighten someone to stop
him going to work (miners strike) actual
consequence driver taking man to work
was killed.
Direct and Oblique Intent
D wants to stop V’s car, so
pushes a concrete block from
a bridge onto the roadway

Direct Intent Oblique Intent

Driver of car is hit

Concrete hits road by concrete and
and forces car to killed. Not the
stop intended result
 Foresight of Consequences
 Main problem is proving intention.
 Especially where D intended
something else.
 If can show that in achieving
intended thing D foresaw that he
would also cause those
consequences then D could be found
guilty of that offence.
 Subjective of objective that is the
question?
 The courts have struggled to find an
appropriate test to apply in cases of
oblique intent. In particular the questions
which have vexed the courts are:
 1.Should the test be subjective or objective?

 2.What degree of probability is required before it can be said that

the defendant intended the result?

 3.Whether the degree of probability should be equal to intention

or whether it is evidence of intention from which the jury may
infer intention.
 Subjective of objective that is the
question?
 A subjective test is concerned with the
defendant's perspective. In relation to oblique
intent it would be concerned only with whether
the defendant did foresee the degree of
probability of the result occurring from his
actions.

 An objective test looks at the perspective of a

reasonable person. Ie Would a reasonable
person have foreseen the degree of probability
of the result occurring from the defendant's
actions.
 Subjective of objective that is the
question?
 It is arguable, that since intention requires
the highest degree of fault, it should be solely
concerned with the defendant's perception. In
addition, intention seems to be a concept
which naturally requires a subjective inquiry.
It seems somehow wrong to decide what the
defendant's intention was by reference to
what a reasonable person would have
contemplated. However, originally an
objective test was applied to decide oblique
intent: DPP v Smith [1961] AC 290
Intention and 8 Criminal Justice Act 1967
 This position was reversed by statute by
s 8 Criminal Justice Act 1967
S. 8 Proof of criminal intent
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 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.
 The authority of this test was questioned in Woollin. The
House of Lords largely approved of the test with some minor
modifications setting the current test of oblique intent:

The current test of oblique intent:

"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 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
appreciated that such was the case."

The decision is one for the jury to be reached upon a

consideration of all the evidence.
 Molony 1985

 D and V (D’s 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 .

Held:
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 defendant’s 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.’
 Molony 1985

 Comment:
The House of Lords ruling suggested that foresight of consequence
was not intent but mere evidence of intent.
While, however, this still remains good law most of Lord Bridge’s
judgement have been overruled by other cases
 The defect in Lord Bridge’s guidance that he gave to the juries

were :
 The should consider was death or really serious injury a natural

consequence of D’s actions?

 Did D foresee that consequence as being a natural result of
this act?
Go back to section 8 of the Criminal Justice Act
The problem with Lord Bridge’s 1967questions:
you will see that the phrase “probable and
1. No mention of probable –natural consequence “ was used.

Lord bridge's guidance only referred to the natural result and his omission of the
word probable in his guidance made that guidance defective and this was
considered in Hankcock and Shankland 1986
 Hankcock and Shankland 1986
 In the midst of a miner’s 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.

Held:
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. This omission he
claimed made the guidance unsafe and misleading.

However, the Lord Justice in Nedrick 1986 thought that the guidance in Molony
1985 and Hankcock and Shankland 1986 needed more clarity.
 Nedrick 1986
 D poured paraffin through the letterbox of a house and set it alight,
resulting in the death of a child.
 D was guilty of manslaughter, not murder.

Held: Per Lord Lane CJ:

‘Where the charge is murder and in the rare cases where the simple direction
[on intent] is not enough, the jury should be directed that they were 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 that 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 may be irresistible that he intended that result, however little he
may have desired or wished it to happen. The decision is one for the jury, to
be reached on consideration of all the evidence.’
 Nedrick 1986
 Comments:
To provide clarity of the guidance given in in
Molony 1985 and Hankcock and Shankland 1986
the Court of Appeal thought juries should ask
themselves:
1. How probable was the consequence which
resulted from D’s voluntary action?
2. How foreseeable was that consequence?
Lord Lane said: “…jury should be directed that they were
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 that such
was the case……”
 Woollin 1998
 D 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.

 Not guilty of murder, guilty manslaughter.

 House of Lords took the view in this case that the guidance
given in Nedrick 1986 was not helpful.
 The Law Lords thought that the model guidance give had
some use, however they thought that the use of the word
‘find’ should be used rather than ‘infer’

 The model guidance that should be given is as follows:

 Woollin 1998
 The jury, should be directed that they are entitled
to find the necessary intention if 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.
Murder is a crime of specific intent. If for any
reason (including self-induced intoxication) the
killer does not form the necessary intent, he
cannot be convicted of murder
Did Woollin solve the problem?
 Section 8 of the Criminal Justice Act 1967
referred to the word ‘infer’ – Does replacing it with
find improve clarity ?
 The word ‘find’- does in means foresight of
consequence is intention and not merely evidence
of intention?
 Based on Lord Steyn ratio it would seem that
foresight of consequence is the same as intention
 Judging from the decisions in Re A (2000) and
Matthews and Allegene ( 2003) If Jury decides that
the defendant foresaw the virtual certainty of
death or serious injury they are entitled to find
intention but do not have to do so.
 Criticism
 No definition of intention, only guidelines for the
jury as to when it might be present. No help on
what factors to take into account in deciding
whether to find intention.
 Jury may find intention, but don’t have to: same
facts may produce conviction or acquittal
depending on make-up of jury
 Requirement that foresight of consequences
must be virtually certain is illogical – what about
the person who fires a gun intending to kill but
V is wearing a bullet-proof vest?
 How is it possible to distinguish between a
consequence foreseen as “virtually certain”
(intention) and one which is “highly probable”
(recklessness)?
 Law reform
 It was proposed in 1993 that a person
acting intentionally should be defined
as:
 Reform
 1993 Law Commission Report ‘Offences
Against the Person and General
Principles’ suggested intention 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 result’
 What do you think of this suggested
reform?
 Summary
Mens Rea consist of :
1.Specific intention- highest level. A person who
intends to commit a crime, can generally be said
to be more culpable than one who acts recklessly.
2.Recklessness
3.Negligence
Categories of intent includes:
1. Direct intent
2. Oblique intent
s 8 Criminal Justice Act 1967 - Proof of
criminal intent
Woollin stands as the authority for the test
for oblique intent.
 Summary
 Looking at the cases which
contributed to the development of
the law of intention, the courts
struggled with the concept of
intention where foresight of
consequence is involved.
1. Natural and probable consequence
2. Difficulty with jury applying the test
after Moloney and Handcock.
3. The change from infer to find in
Woollin