The concept of mens rea in criminal law refers to the defendant’s
state of mind when committing an offense. It is a Latin word that
means guilty mind. Generally, there is a basic characteristic of
common law, communicate in Latin phrase translated as “the act is
not culpable unless the mind is guilty” in Coke’s Third
institute. . It means that a person is not liable unless it has mens
rea or guilty mind for the offense committed. However there is an
exception in strick liability crimes, where the mens rea for the
offense is not required. Moreover, one can also be held in the
doctrine of transferred intent R v Gnango. There are three main
levels of mens rea which are named as Intention, recklessness
and Negligence based on Subjective and objective approach.
Intention
There is a mens rea hierarchy. The highest level of guilt is intent.
Because intentionality is linked to the most serious crimes, it is at
the top of this pyramid. The highest level of culpability is
intentionality, which means that a person who wants to commit a
crime is more guilty than someone who acts foolishly. It is defined
as “the decision to bring about prohibited consequence “,
stated in R v Mohan 1976.
However there is a quite different between intention and motive,
people sometimes mixed them up with the same literal meaning.
(According to Lord Bridge in R v Moloney [1985 ] AC 905 Case
summary), the intention is distinct from purpose or desire. As a
result, a person who murders a loved one who is dying of a terminal
illness in order to relieve pain and suffering may have good
intentions. This does not, however, exclude them from having the
essential intent to kill. R v Inglis 2011 is a good example.
As previously stated, intent is linked to the most serious crimes such
as murder, rape, and so on. Finding out what the defendant
intended as a result or what action he or she intended to take is a
crucial part of the offense. While the intent is a key element in these
crimes, there are two ways to determine intent: direct or indirect.
We'll start with direct intention and then move on to indirect
intention.
Direct intention
The direct intention will be followed in the majority of the cases. For
example, a intends to kill B, to attain this he gets a pistol from the
cupboard, loads it up and shoots B in the head. As observed in this
example the defendant accomplished the desired consequences.
Indirect Intention
The second type of intention is the indirect intention, where the
defendant doesn't have the direct intent to commit an offence but
an oblique. It was defined by G. Williams “ it includes not only
the desire of the consequence but also foresight of the
certainty of the consequence as a matter of legal
definition”.
There was a different perspective regarding the test as to whether a
subjective or objective approach should be adopted. The house of
lords in 1960 verified in the case of DPP b Smith that the objective
approach should be adopted. Whereas, In the case of Hayam v DPP
1975, the house of the lords revised the test operated in Hayam
and held that a subjective approach should be considered by the
courts in deciding the case related to indirect intention. It is
important to note here that it was the first time the court considered
oblique intent. However, it was held in Molony 1985 that there is
only one type of intention and that is direct, moreover the HOL, in
this case, rejected the test of Hayam.
The approach adopted in Hayam was nevertheless upheld in
Nedrick 1980 and held that subjective approach should be used.
This principle was approved in Wollin 1999, which is the current
test of indirect intention.
Recklessness
It is affirmed that recklessness implies the accused as unconcerned
regarding the harmful or devastating effects. This indicates that a
recognized risk was overlooked, implying subjective recklessness.
Sometimes a risk will be identified by the accused and he may reject
it as being so negligible as to be a reasonable one to take. For
example, the law allows the use of reasonable force in the lawful
arrest of an offender, and if performing so if the defendant forces
the Victims car off the road, that can not be reckless as it was
reasonable force to lawfully arrest Renouf 1896.
In criminal law, it is a difficult area to understand and apply. It is also
complicated to determine whether the subjective or objective test
should assign.
The leading case in this area at the time found that a subjective test
applied to determine recklessness in the context of criminal damage
is R v Cunningham 1957 where it was held that; Malicious or
intention to harm is specifies in two points;
1) having the intention to execute the particular type of harm is
already done or
2) reckless about whether such harm should occur or not (i.e., the
accused take the risk despite of that fact that he has for seen the
specific type of harm). In the cases of R v Spratt 1990 and R V
parameter 1991, the precedent set out in Cunningham test was
applied and the trial judges directed the jury that it was enough
that Defendant should have foreseen the the risk.
This gave rise to Cunningham's recklessness, which evaluates if the
defendant foresaw or might have foreseen the harm that resulted
from his acts, yet continued regardless of the risk. This test was
obeyed in R v Briggs 1976 and R v Parker 1976, where this test
was modified and held that closing one’s eye to the apparent risk is
not a reasonable defence and one can not rely on Cunningham
principle as per CDA 1971. Furthermore in R v Stephenson 1979,
these previous cases were assessed critically by the Court of appeal
where it was held that the test should be entirely subjective. The
defendant should not be liable if he did not foresee a hazard of
damage.
It was now accepted that the Cunningham test would be applied to
the offences of damaging property under the Malicious damage
act 1861. This test was however altered in the leading case of
MPC V CALDWELL 1982, where it was held that when a property
is damaged or destroyed, the defendant would be reckless if his act
develops an obvious risk that it will destroy. This principle
developed with time and was given the name of Caldwell
Recklessness where the situation was analyzed objectively. This
test was followed in the case of Lawrence 1982. This case received
extensive criticism from the excellences. So instead of developing
clarity in the subjective approach. This case analyzed the law
principles from a whole new perspective and introduced an objective
approach in the law of recklessness. The main criticism of the
subjective method is that it is based solely on the defendant's mind
and the prosecution has to prove the defendant's state of mind
while committing an offense. Whereas the objection to the objective
approach is that it sometimes causes injustice to those who are not
able to foresee the harm to those who genuinely did not foresee
harm as happened in the case of Elliott v C 1983. Where a 14-year
girl of low intelligence was held liable under Caldwell.
However this approach was overruled by R v G and R 2003, and it
is held that the subjective approach Is more appropriate and
justifiable then objective approach in Criminal damage. Therefore,
now the current law on recklessness is that it should be examined
subjectively.
The final conclusion on this debate of subjective and objective test
would be that, when the risk is obvious and the defendant knew
about that risk still go on to take it, he would be held liable.
Secondly, the awareness of the risk to the defendant would be
examined subjectively and while the third point is that taking the
risk would be assessed objectively from the reasonable person
perspective.
