Mens rea in criminal law is concerned with the state of mind of the defendant. It literally means “the guilty mind”. Most crimes will require proof of men’s rea. Where men’s rea has not required the offence is one of strict liability.
There are three main levels of men’s rea:
'Intention' is required for the most serious crimes with the highest degree of fault.
Intention is not the same as 'motive'. A motive is the reason why someone did something. For example, someone who kills a dying relative who is in pain may have a noble motive but in English law, this does not matter because the law only looks at the intention. In this case, regardless of the motive, the intention to cause death is very clear. There are two types of intention
A decision to bring about the prohibited consequence. (R v Mohan)
For example, if a defendant sees a person going into a car and blows the car up in order to kill the person. It can be said there is direct intention because there is a clear desire to bring about death (the prohibited consequence). This is clear because the decision to blow up the car was made after the defendant saw the victim enter the house and blew up the house in order to kill the victim.
This is when the defendant did not intend or says they did not intend the prohibited outcome but this outcome is 'virtually certain'. In this case, the jury in entitled to 'find' that the defendant intended the outcome. (R v Nedrick)
For example, If a defendant decides that they are going to blow up a car but when they get there they notice there is a person inside the car. So the defendant decides to blow up the car anyway knowing this will result in the death of the victim. In this case, the defendant's intention was to blow up the car but since the victim just happened to be there the victim's death was 'virtually certain'. So the jury may find that the defendant also intended the victim's death.
A defendant is reckless when they foresee a risk of prohibited consequence AND takes unreasonably takes that risk anyway. R v G and Another (2003)
This is subjective recklessness. It is subjective because we are looking at the situation from the defendant's point of view. However, there is an objective element where we ask of the defendant took an "unreasonable risk". In other words we wonder whether the reasonable person would have taken that risk knowing what they defendant knew at the time.
Let's go back to our car bomber example. This time the car bomber wants to blow up the car but the car has tinted windows. He/she waits and sees two people leave the car. However, he/she thinks there is a risk there is a third person is still in the car. They walk by the car several times and even knock on the window but there is no response. Still, they think there is a risk there is someone in the car and decide to take that risk anyway. Since they realise there is a risk and take that risk anyway.
Another example is someone who drives while drunk. If they know they are voluntarily drunk they know there is a risk of hurting someone if they drive under the influence. If they choose to drive knowing they are drunk they are unreasonably taking the risk of harming someone because the reasonable person would know it is not ok to drive under the influence.
Negligence is generally a civil concept that involves behaviour that falls below the standard of the reasonable person but unlike recklessness, the defendant does not need to know there is a risk and take it anyway. It is used in some statutory crimes (e.g. driving offences).
Gross negligence is the basis of gross negligence manslaughter. Here, D’s negligence needs to be so extreme that the jury considers it ‘gross’. R v Adomako (1995)
Going back to our car bomber example imagine that someone stored fireworks in a car but did not follow the safety instructions and had no idea how fireworks worked or how they should be stored. This person then decides to smoke and drink alcohol in the car. He/she then falls asleep and the smoke causes a fire. They escape into safety but the car to blows up and killing everyone on board. In this case, the defendant did not intend to cause death, death was also not a virtually certain outcome of smoking and drinking. They also did not realise that there was a risk of death. They merely failed to act like the reasonable person would have. So the Mens rea here is negligence, not recklessness.
An offence that does not require proof of fault.