Criminal Law- Mens Rea

The words Mens Rea (MR) come from the Latin words meaning ‘Guilty Mind’. This is an element that is needed in nearly all criminal offences, with the exception of strict liability offences, which require only the Actus Reus.


If the defendant intended to commit the guilty act or omission then they shall be found guilty. This is known as Direct intent.

The test for whether the MR is satisfied by direct intent is ‘whether the accused should foresee with virtual certainty the result of their conduct and goes on to act on that conduct’.

When looking to apply direct intent, look at the defendants aim, desire and purpose of committing the act. If the defendant has the aim, desire and purpose then they will have direct intent- R v Maloney

There also times where this does not specifically apply, but these are very rare circumstances. For example, in the case of Re A doctors had to operate on conjoined twins, however operating would kill one of the children, but save the other, otherwise they both would have died. Therefore, if they underwent the surgery, they would have technically committed the AR and MR of murder. They were granted a defence in law, therefore letting them undergo surgery and saving one of the children. However, these are very rare and exceptional circumstances.

Indirect intent or oblique intent is where the defendant still has the degree of certainty that the result will occur because of their actions. However, there are more consequences that he did not directly intent. They will therefore escape no liability for those other results that were not directly intended.

In the case of R v Woolin, a man in a temper threw his new-born child across a room and as a result killed it. The court deemed that the defendant had oblique intent because it was a virtual certainty that if you throw a new-born child across a room, they will be killed, even though there was no direct intent to kill the child.



There has been a lot of scrutiny over the test for recklessness over the last decade regarding what is the level of recklessness that is required to be convicted.

R v Cunningham in the 1950’s was the starting point of recklessness. In this case is took the view of subjectivity. The defendant must have realised that they create a risk and went on to take that risk. The term conscious risk taking was derived from this case.

This was then overruled in the case of R v Caldwell which took a more objective stance. This case was decided that the law should show that if someone created a risk, that was reasonably foreseeable to the reasonable person in their position, and then carried on to take that risk, it could be defined as recklessness. This lowered the standard which was required for recklessness.

More recently in the case of R v G, it overruled the case of Caldwell on the basis that the law must also be designed to protect vulnerable people. In the case of R v G, it was children, but it can also be applied to other vulnerable groups. And it was therefore deemed that it must be a subjective test, meaning that the defendant must realise the risk that they have created, and then go forward to take that risk anyway, would be defined as recklessness, and not one of objectivity.



Some crimes may be satisfied with negligence acting instead of the MR of an offence, for example Gross Negligence Manslaughter. Negligence is said to be the middle ground between Recklessness offences and strict liability offences, and is sometimes used a lot more in other jurisdictions.

For someone to be convicted of a negligence crime, there must have been a duty, that duty must have been breached and the defendant must have fallen ‘far below the standard of the reasonable person’.

This reasonable standard was defined in the case authority of R v Adomako. In this case, an anaesthetist failed to follow procedure so much so that he failed to notice that the oxygen pipe had been unattached and the victim was turning blue. The court asked, ‘was the conduct of the defendant so bad that it should amount to a criminal offence’


Strict Liability

These are offences that simply require no MR for the defendant to be convicted of the crime. There are not many of these offences, however it is not always clear as to whether an offence is one of strict liability. There is a presumption of MR, however this can sometimes be rebutted.

The first was in understanding whether an offence is one of strict liability is to look at the stature itself. Some statutes use the direct wording ‘this is a strict liability offence’ others will just use words such as intentionally, knowingly or willingly, which would imply MR.

In some cases statute will stay silent on the matter. If so, there the court will presume there is a MR, but will also consider other factors, such as the sentencing of that offence. Generally strict liability crimes are ones which carry less weight and sentence. They will also look at the social context, and see why the law was imposed. This may give them an indication as to whether it should be strict liability.

Generally, strict liability offences are regulatory offences. This means that they are put in place in order to maintain specific conduct. For example driving whilst intoxicated is an offence of strict liability and was out in place to regulate intoxicated drivers. On the other hand, they are very rarely ‘true crimes’ as these are deemed to be more serious and need a MR for someone to be guilty. This was found in the case of Sweet v Parsley– regarding a woman who had no knowledge people were taking illegal substances in the facility she was renting out, and faced tried. It was only on appeal she was successful and acquitted.

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