What is Mens Rea in Criminal Law? – Intention

In my last blog post, we looked at what actus reus (the guilty mind) is in criminal law. In this week’s blog post, we will be looking at what mens rea (the guilty mind) is in criminal law. There are three different types of mens rea that an offence may require – intention, recklessness and negligence. All of these are varying levels of mens rea that require the prosecution to prove different things. The one that we will be focusing on in this blog post is intent, the most serious one that is often hardest to prove. However, it is essential for some offences that the prosecution can show intent, not just recklessness or negligence.

There are two different types of intention that can be proved under criminal law, direct intent and oblique intent, both of which will be examined in this blog post. Whichever the prosecution decided to claim existed, the result will be the same, as intent is proved either way and there is a successful case against the defendant (assuming the other required elements are present). We will start by looking at what direct intent is, then consider oblique intent. In addition, we will look at some of the tests that have been used over the years for oblique intent, as this is a grey area of law.

Direct Intent

Direct intent is very straightforward and gives the word “intent” its ordinary meaning. If the defendant had direct intent, it means that they carried out the criminal act while fully aware of the consequences and intending the end result. For example, if the defendant intends to kill their victim and makes plans to do so, then carries them out, there is a simple case for direct intent. Similarly, if someone breaks into a house with the express intent to steal items inside, they have direct intent for the crime of burglary. The majority of cases have direct intent where intention is required for the mens rea. It should be noted that the likelihood of the intended outcome occurring is irrelevant, all that matters is that the defendant did intend the consequences.

Oblique Intent

In contrast, oblique intent is when the defendant carries out a course of action to bring about the desired result while knowing that this course of action will also cause another result. Although they do not have direct intent for this second result, they do have oblique intent by being aware of the consequences of their conduct but going ahead with this conduct anyway. They are just as responsible for the consequences resulting from oblique intent as the consequences resulting from direct intent. For example, if the defendant plants a bomb with direct intent to kill their target, but know that many others will die as well, they have oblique intent for these deaths and can be tried with murder.

One of the problems courts have faced with oblique intent is finding a test that fits it. Firstly, should this test be objective or subjective? Objective means that the test is that of the reasonable person, regardless of what the defendant’s own characteristics are. However, subjective looks at what the defendant was actually thinking and the knowledge and experience available to them. Generally, an objective test is easier to prove, as it requires no knowledge of the defendant’s thoughts, but this also means that the criminal offence is a lot stricter in application. Courts have gone back and forth on whether oblique intent requires a subjective or objective test.

Section 8 of the Criminal Justice Act 1967 gives a test for criminal intent, which is a subjective one. In fact, it specifically states that it is not required to find the defendant had the necessary intent where the result is a natural and probable consequence of their actions that the reasonable person would be aware of. Instead, it asks whether the defendant saw the result as a natural consequence but proceeded anyway. This test was later reviewed in R v Moloney [1985] AC 905, where it was stated that foresight of consequences being probable was sufficient to establish intent. With any offence, it can be difficult to prove the defendant’s thoughts at any given time and how they affected their actions, so the test tries to give some flexibility of interpretation without allowing the court to leap to conclusions.

However, there are still questions about the degree of probability of the consequences occurring. The more likely that a particular consequence is to occur, the more likely it is the defendant foresaw it happening and thus had the necessary intent. In R v Woollin [1999] AC 82, it was stated that the consequences of the action must be virtually certain and the defendant must have appreciated this certainty. This is a subjective test with a high level of evidence required to help avoid unjust convictions.

Wrapping Up

I hope that this helps you to understand how mens rea works and the different types of intent. In my next blog post, we will be looking at recklessness, so come back in two weeks for that!

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