Mens rea


After reading this chapter you should be able to:

Understand the law of intention, both direct and oblique

Understand the law of recklessness

Understand the principles of transferred malice and coincidence

Analyse critically the law on intention and recklessness

3.1 The mental element

It was noted at the start of the previous chapter that the physical element alone is, generally speaking, not enough to constitute criminal liability. The presence of some mental element is usually required. This allows the courts to impose punishment on those who acted with, at least, some awareness of what they were doing. As a general rule, courts in England are reluctant to apportion blame and impose punishment on those who acted inadvertently, that is, without awareness of the conduct, circumstances and consequence elements that make up the actus reus. As with the physical elements discussed in Chapter 2, a different mental element is required for each crime. Some criminal offences require one mental element; some require two, either in addition to each other or as alternative states. Some examples are as follows.

In murder the mens rea is intention only (see Chapter 10).

In theft one mental element is intention; however, there is an additional element of dishonesty.

In criminal damage and most non-fatal offences against the person, such as assault and battery, the mens rea is intention or recklessness (see Chapters 11 and 16).

In one form of manslaughter, the mental element is recklessness only, while in a different form of manslaughter, the mental element is ‘gross negligence’ (see Chapter 10).

3.2 Intention

As noted above, in many offences, the mens rea required is an ‘intention’. However, intention does not exist as an abstract concept: there must be proof of an intention to cause a particular result. The following examples illustrate this.

Murder requires as its mental element intention to kill or cause grievous bodily harm (see Chapter 10).

The criminal offence found in s 18 of the Offences Against the Person Act (OAPA) 1861 requires as its mental element an intention to cause grievous bodily harm (see Chapter 11).

In theft, the mental element is an intention permanently to deprive another person of their property, plus dishonesty (see Chapter 13).

However, whichever crime is charged, the meaning of ‘intent’ is the same. In criminal law, there are two types of intent:

Direct intent — this refers to someone’s aim, purpose or desire.

Indirect or oblique intent — this is much harder to define. The question whether D intends a consequence of his actions when he believes that it is virtually certain, or very probable, is one that has greatly troubled English courts for the last 30 years. The House of Lords has dealt with the problem on five occasions, all murder cases, the most recent in 1998.

mental or fault element involving aim, purpose or desire

3.2.1 Direct intention

As indicated above, direct intention refers to the situation when D desires an out-come. For example:

D is a hired professional killer (an example is Calhaem (1985) 1 QB 808; see Chapter 6) who aims a loaded gun at V’s heart and pulls the trigger. Clearly D has direct intent to kill. The fact that D’s desire is motivated by cash is irrelevant: D still wanted to kill V.

D is a sadistic psychopath who enjoys torturing and killing people. He strangles V to death and then cuts up the body (as in Byrne (1960) 2 QB 396; see Chapter 10). Clearly D again has direct intent to kill. The fact that D’s desire is motivated by his abnormal mental condition is irrelevant to the question of intent: D still wanted to kill V.

An example of a situation where D does not desire a consequence but may still be said to have intended it might be where D sees a child trapped in a locked car, towards which a runaway lorry is heading at speed. D grabs a brick and smashes the wind-screen to rescue the child. D’s desire here was to save the child but in doing so he had to cause criminal damage to the car (see Chapter 16). If D were prosecuted for the offence of intentional criminal damage to the windscreen, it seems that the prosecution could establish the elements of the offence. (It is extremely unlikely that the Crown Prosecution Service would prosecute on these facts; even if they did, D would almost certainly be found not guilty by pleading duress of circumstances, see Chapter 8.)

3.2.2 Oblique intention

As indicated above, indirect or oblique intention occurs where D does not necessarily desire an outcome but realises that it is almost (but not quite) inevitable. However, this scenario invites problems. What degree of probability is required before an undesired consequence, but one which D has foreseen, can be said to have been intended? Some would argue none — that once one steps away from foresight of something as 100 per cent certain to happen, then one is dealing with risk, and that means recklessness, not intent. Others would argue that very high probability would suffice. A good place to start an examination of ‘intent’ is the Criminal Justice Act 1967, which states that:


‘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 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 facts as appear proper in the circumstances.’

This provision was passed in order to reverse the decision of the House of Lords in DPP v Smith (1961) AC 290. The Law Lords had declared that there was an irre-buttable presumption of law that a person foresaw and intended the ‘natural consequences’ of his acts. Proof that D did an act, the natural consequence of which was death, was proof that D intended to kill. Further, the test of what was a natural consequence was purely objective: ‘not what [D] contemplated, but what the ordinary reasonable man would in all the circumstances of the case have contemplated as the natural and probable result’. None of this is now good law. The leading case is now that of Woollin (1998) UKHL 28; (1998) 3 WLR 382. Lord Steyn (with whom the other members of the House of Lords agreed) laid down a model direction for trial judges to use in cases where D’s intention is unclear as follows:


‘Where the charge is murder … 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 [D]’s actions and that [D] appreciated that such was the case.’


Woollin (1998) UKHL 28; (1998) 3 WLR 382

D had killed his three-month-old son by throwing him against a wall, fracturing his skull. D did not deny doing this, but claimed that it was not intended. He claimed that he had picked the child up after he began to choke and shaken him. Then, in a fit of rage or frustration, he had thrown him with some considerable force towards a pram four or five feet away. The trial judge directed the jury that they might infer intention if satisfied that when D threw the child, he had appreciated that there was a ‘substantial risk’ that he would cause serious harm to the child. D was convicted of murder and appealed on the basis that the phrase ‘substantial risk’ was a test of recklessness, not of intent, and that the judge should have used ‘virtual certainty’. The Court of Appeal dismissed the appeal but the House of Lords unanimously reversed that court’s decision, quashed D’s murder conviction and substituted one of manslaughter.

You will note that in the 1967 Act there is a verb, ‘to infer’. This word was faithfully used by trial judges and the appeal courts until Woollin. But in that case the Law Lords agreed that juries would more easily understand the verb ‘to find’. It appears that the Law Lords simply intended to substitute one word for another, although academics argue that the words have slightly different meanings. Prior to Woollin, the most oftquoted statement of the law of intent was found in Nedrick (1986) 3 All ER 1. This was a Court of Appeal case, in which Lord Lane CJ attempted to, as he put it, ‘crystallise’ the various speeches made in the House of Lords in two cases from the 1980s: Moloney (1985) AC 905 and Hancock and Shankland (1986) AC 455. Lord Lane stated:


‘It may be advisable first of all to explain to the jury that a man may intend to achieve a certain result whilst at the same time not desiring it to come about … if the jury are satisfied that at the material time [D] recognised that death or serious harm would be virtually certain (barring some unforeseen intervention) to result from his voluntary act, then that is a fact from which they may find it easy to infer that he intended to kill or do serious bodily harm, even though he may not have had any desire to achieve that result. 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 a consideration of all the evidence.’

Directions on intention not always necessary

Most of the cases mentioned above reached the appeal courts because the trial judge unnecessarily confused the issue by raising indirect intent in the first place. When this happens it invites an appeal on the basis that the jury has been unnecessarily confused. As Lord Bridge put it in Moloney:


‘The golden rule should be that … the judge should avoid any elaboration or paraphrase of what is meant by intent, and leave it to the jury’s good sense to decide whether the accused acted with the necessary intent, unless the judge is convinced that, on the facts and having regard to the way that case has been presented … some further explanation or elaboration is strictly necessary to avoid misunderstanding.’

The case of Fallon (1994) Crim LR 519 provides a perfect example. D was charged with attempted murder (this requires proof of an intent to kill). He had shot a police officer in the leg. The prosecution alleged that he intended to kill; D argued that the gun had gone off accidentally when the officer tried to grab the gun, which D was trying to hand over. The trial judge directed the jury on intent, referring to Moloney and Nedrick and introducing the concept of virtual certainty. Unsurprisingly, the jury asked for clarification, and the judge gave them further direction, also based on Nedrick. After the jury convicted D of murder, the Court of Appeal allowed his appeal (although they instead substituted a conviction under s 18 OAPA 1861, of causing grievous bodily harm with intent to resist arrest). The prosecution accepted that the judge’s directions were unnecessary and confusing; he had ignored Lord Bridge’s ‘golden rule’. The jury simply had to decide whether they believed the prosecution or the defence version of events. If they were sure the prosecution’s version was correct, then they should convict (D had direct intent); if they thought the defence might be correct, then acquit (the shooting was an accident, D did not intend to do the officer any harm at all).

In Wright (2000) EWCA Crim 28; (2000) Crim LR 928, the Court of Appeal rejected D’s appeal against a murder conviction based on the ground that the judge had not directed the jury according to Nedrick and Woollin. At the time of the killing, D and V were sharing a prison cell (D was on remand). One morning V was found lying on the cell floor, unconscious and with a piece of bed sheet tied round his neck. He died a week later. D denied murder, claiming that, while he (D) was asleep, V had hanged himself. Upholding the murder conviction, Beldam LJ said that in simply giving ‘the straightforward direction on intention’ — that is, by just directing the jury to consider direct intent — the judge was ‘directing the jury to the real question they had to determine and steering them away from the chameleon-like concepts of purpose, foresight of consequence and awareness of risk’. This must be correct. The prosecution case was that D wanted to kill V — that is, he had direct intent; the defence case was that D had nothing to do with V’s death at all. There was no need for any direction based on oblique intent; indeed, had the jury been directed to consider D’s foresight of consequences it would only have served to have distracted them from the key question: did they believe the prosecution’s version of the facts, or the defence’s version?

Foresight is not intention but evidence of intention

All the courts agree on one thing: foresight of a consequence, even of a virtually certain consequence, is not intent, but is simply evidence from which intention may be found. It will therefore be a misdirection for the judge to equate foresight with intention. The jury must be left to ‘find’ intent from foresight. For example, in Scalley (1995) Crim LR 504, D was convicted of murder but on appeal his conviction was reduced to manslaughter. The problem was that the judge had directed the jury that if they found that D had foreseen death or serious injury as virtually certain, then he had intended it. However, this is somewhat confusing. If the jury are agreed that D foresaw a consequence as virtually certain, then they are entitled to ‘find’ that D intended that consequence. Equally, they are not compelled to do so. So when should a jury ‘find’ intention based on evidence that D foresaw a virtually certain consequence (and convict D), and when should it not (and acquit D)? The courts have failed to give any clues as to when, or how, juries are to take this step. It has been said that there is a ‘logical gap’ between foresight and intention (G Williams, ‘Oblique Intention’ (1987) 46 CLJ 417).

Nevertheless, the proposition that foresight of a consequence is not intention but evidence of it was confirmed in Matthews and Alleyne (2003) EWCA Crim 192; (2003) 2 Cr App R 461.


Matthews and Alleyne (2003) EWCA Crim 192; (2003) 2 Cr App R 461

D and E had pushed V from a bridge over the River Ouse (despite the fact he had told them he could not swim) where he fell about 25 feet and drowned. D and E were convicted of murder (among other offences including robbery and kidnapping) after the trial judge told the jury that if ‘drowning was a virtual certainty and [D and E] appreciated that … they must have had the intention of killing him’. D and E appealed on the basis that this direction went beyond what was permitted by Nedrick/Woollin and equated foresight with intention. The Court of Appeal rejected the appeal. Although the judge had gone further than he was permitted (and had equated foresight with intention), the court thought that, on the particular facts of the case, if the jury were sure that D and E had appreciated the virtual certainty of V’s death when they threw him into the river, it was ‘impossible’ to see how they could not have drawn the inference that D and E intended V’s death.


Some academics take the view that intention should be limited to direct intention (desire, aim or purpose). As Finnis has pointed out (‘Intention and Side-Effects’ (1993) 109 LQR 329), in ordinary English we would not say that ‘someone who hangs curtains knowing that the sunlight will make them fade’ intends that they will fade — and yet according to the House of Lords, a jury would be entitled to ‘find’ that they did intend exactly that. Finnis described the definition of indirect or oblique intent as the ‘Pseudo-Masochistic Theory of Intention — for it holds that those who foresee that their actions will have painful effects upon themselves intend those effects’.

student mentor tip

Applying the law

Tony celebrates his birthday by drinking five glasses of red wine. He knows from previous, bitter experience that drinking anything more than two or three glasses of red wine will give him a terrible hangover in the morning. According to the Nedrick/Woollin definition, does Tony intend to have a terrible hangover?

The Nedrick/Woollin test fails to provide a clear distinction between intention and recklessness. How is it possible to distinguish a consequence foreseen as ‘virtually certain’ (which might be evidence of intent) from one foreseen as ‘highly probable’ (which would be evidence of recklessness)? There is no obvious cut-off point, and yet this is the dividing line between murder and manslaughter. There are also strong moral justifications for distinguishing D who acts in order to achieve V’s death because that is what he wants to happen, and D who has one goal but foresees that V’s death is certain to happen, although he desperately hopes it will not.

Reform proposals

In 2006, the Law Commission published a Report entitled Murder, Manslaughter and Infanticide, in which it was recommended that the Woollin direction on oblique intent should be codified, and that ‘intention’ should be defined — in full — as follows:

1. A person should be taken to intend a result if he or she acts in order to bring it about.

2. In cases where the judge believes that justice may not be done unless an expanded understanding of intention is given, the jury should be directed as follows: an intention to bring about a result may be found if it is shown that the defendant thought that the result was a virtually certain consequence of his or her action.

The Government’s response to the Report, published in July 2008, gives no indication that it intends to do anything about this recommendation. It is therefore safe to assume that, for the time being at least, the meaning of oblique intention (or the ‘expanded understanding’ of it) remains as set out in Woollin.

Another option would be to limit intention to D’s aim or purpose, ie direct intention. This would have the advantage of making the legal definition fit with the word’s everyday dictionary meaning. In Steane (1947) KB 997, D was charged with doing acts likely to assist the enemy with intent to assist the enemy, contrary to the Defence (General) Regulations 1939. He was a British film actor resident in Germany prior to World War II who had been arrested when the war broke out and forced, extremely reluctantly, to broadcast propaganda on German radio. Threats had been made to place his wife and children in a concentration camp if he did not comply. The Court of Criminal Appeal, quashing his conviction on the grounds of lack of intent, adopted a narrow interpretation of that concept, effectively limiting it to aim or purpose.