The standard common law test of criminal liability is usually expressed in terms of Edward Coke’s statement ‘actus non facit reum nisi mens sit rea’ which means that ‘the act does not make a person guilty unless their mind is also guilty. There must be an actus reus accompanied by some level of mens rea to constitute the crime with which the defendant is charged.
There are four possible states of mind recognised by British law:
Intention
A range of words are used to express intention in the various criminal laws. For the offence of murder for example, the required level of mens rea is ‘malice aforethought’ which is interpreted as ‘intention to kill or cause grievous bodily harm’.
Effectively, a defendant intends a certain consequence if he foresees that it will occur if the given series of acts or, in some cases, omissions, continue and he desires that it will happen.
Intention can therefore be either direct, where the defendant intends a particular consequence of their act, or oblique, where the defendant foresees the certainty of a consequence of their act even if it is not their main objective.
Recklessness
Recklessness demonstrates less culpability than intention but more than negligence.
The modern definition of recklessness comes from R v Cunningham [1957] and states that recklessness involves foreseeing the kind of harm that occurred and going ahead anyway. Cunningham recklessness is a subjective test since the jury need to decide what the defendant was thinking.
In R v Caldwell [1982] Lord Diplock decided that Cunningham recklessness was too narrow for the Criminal Damage Act 1971. He widened it to also include the case where the defendant commits an act which creates a risk which is obvious to the ordinary person but not to the defendant. The definition of Caldwell recklessness has two limbs:
- The defendant does an act which creates a risk and he has recognised that there was some risk. This subjective test is known as the advertent limb.
- The defendant does an act which creates a risk which is obvious to other people but is not obvious to the defendant. This objective test is known as the inadvertent limb.
Negligence
The test for negligence in British law is an objective one, the jury must decide if the defendant has gone below the standards to be expected of the reasonable person. To do this, the defendant must have failed to exercise such care, skill or foresight as a reasonable person in the same situation would exercise. The characteristics of the particular defendant are not taken into account when considering negligence.
Transferred Malice
Transferred malice occurs when the intention to harm one individual inadvertently causes a second person to be hurt instead. Under British law the individual causing the harm will be seen as having intended the harm caused through the transferred malice doctrine and so will be liable for their actions.
Sources:
Herring, J. (2008) Criminal Law: Text, Cases and Materials (Oxford: OUP)
Elliott, K. & Quinn, F. (2008) Criminal Law (Longman)
Allen, M. (2007) Textbook on Criminal Law (Oxford: OUP)
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