Elements of a crime

Intention is the highest form of mens rea. Direct intention means the defendant's aim or purpose was to bring about the prohibited result (R v Mohan). There is also oblique (indirect) intention: where the result was a virtual certainty of the defendant's act and the defendant foresaw it as virtually certain, the jury may find intention (R v Woollin) — here foresight of virtual certainty is evidence of intention.

Recklessness (in its modern, subjective form) means the defendant foresaw a risk of the prohibited result and unreasonably went on to take that risk (R v Cunningham). This subjective test was confirmed for criminal damage in R v G and Another [2003], which overruled the older objective Caldwell test.

The distinction lies in the degree of fault. Intention requires that the defendant either aimed at the result or foresaw it as virtually certain; recklessness requires only that the defendant foresaw a possible risk and chose to take it. Intention is therefore the more blameworthy state of mind, which is why the most serious offences (such as murder) require it.

Issue. The issue is whether Adam, in law, caused Bob's death, since causation must be proved for any result crime such as homicide.

Rule. Causation has two limbs. Factual causation is established by the 'but for' test: but for the defendant's act, would the result have occurred (R v White)? Legal causation requires that the defendant's act was an operating and substantial cause of the result — more than a minimal contribution (R v Smith). The chain must not be broken by a novus actus interveniens.

Application. Applying the but-for test, but for Adam shooting Bob, Bob would not have been taken to hospital and would not have died when he did — so factual causation is satisfied. Applying legal causation, the gunshot wound was plainly an operating and substantial cause of Bob's death, as in R v Smith where a stabbing remained the operating cause despite intervening events. There is nothing on the facts to suggest an intervening act broke the chain.

Conclusion. Both limbs of causation are satisfied and the chain is unbroken, so Adam in law caused Bob's death and may be liable for homicide (subject to his mens rea, which on the facts — intending to kill — is clearly present).

Issue. The issue is whether Dan's omission (failing to feed Edith or call a doctor) can supply the actus reus of a homicide offence, given that he did no positive act.

Rule. The general rule is that there is no liability for a failure to act — English law imposes no general duty to act. However, an omission can be the actus reus where the defendant is under a recognised legal duty to act. The relevant categories include a voluntarily assumed duty, established in R v Stone and Dobinson, where the defendants took a sick relative into their home and assumed responsibility for her care, so their failure to care for her became criminal. A duty may also arise from a special relationship or from creating a dangerous situation (R v Miller).

Application. Applying R v Stone and Dobinson, Dan voluntarily assumed a duty of care when he took Edith into his home and she became dependent on him. Once she was bedridden and unable to care for herself, Dan was under a duty to provide food and to summon medical help. By stopping feeding her and not calling a doctor, Dan breached that duty, exactly as the defendants did in Stone and Dobinson. The breach must also have caused the death: but for Dan's failure to feed her and obtain treatment, Edith would not have died when she did (R v White), and his omission was an operating and substantial cause (R v Smith).

Conclusion. Because Dan was under a voluntarily assumed duty which he breached, and the breach caused Edith's death, his omission supplies the actus reus of a homicide offence (most likely gross negligence manslaughter), so he may be criminally liable.

Issue. The issue is what mens rea Fiona had when she threw the brick, given that she denies any intention to injure anyone.

Rule. Mens rea may take the form of intention or recklessness. Direct intention is the defendant's aim or purpose (R v Mohan). Oblique intention arises where the harm was a virtual certainty of the act and the defendant foresaw it as such (R v Woollin). Where intention is not made out, subjective recklessness suffices for many offences: the defendant foresaw a risk of harm and unreasonably went on to take it (R v Cunningham), the subjective test confirmed in R v G and Another [2003].

Application. Fiona did not aim to injure Greg, so there is no direct intention (R v Mohan); her purpose was curiosity, not harm — and note that motive is irrelevant to intention. Whether she had oblique intention depends on virtual certainty: throwing a brick onto a busy motorway makes injury highly likely, but it may fall short of the very high virtual certainty standard in R v Woollin, and it is unclear she foresaw injury as virtually certain. However, subjective recklessness is clearly satisfied: a person who throws a brick onto a busy motorway 'just to see what happens' plainly foresees the risk of hitting a vehicle and injuring someone, yet unreasonably takes that risk — precisely the R v Cunningham / R v G test. The test is what Fiona herself foresaw, not what a reasonable person would foresee.

Conclusion. Fiona lacks intention but does have subjective recklessness, which supplies the mens rea for a reckless offence against the person (or criminal damage to the windscreen), so she may be liable on that basis.

Issue. The issue is whether Harry in law caused Ian's death, or whether the chain of causation was broken by the medical treatment or by Ian's refusal of a transfusion.

Rule. Factual causation uses the 'but for' test (R v White); legal causation requires the defendant's act to be an operating and substantial cause (R v Smith). The chain may be broken by a novus actus interveniens. For medical treatment, the chain is broken only where the treatment is so independent and 'palpably wrong' that it overwhelms the original wound (R v Jordan), whereas merely negligent treatment does not break the chain while the original wound is still operating (R v Cheshire). The thin-skull rule requires the defendant to take the victim as found, including their beliefs (R v Blaue).

Application. Applying the but-for test, but for Harry stabbing Ian, Ian would not have been in hospital and would not have died — factual causation is satisfied (R v White). The stab wound was still 'serious', so it remained an operating and substantial cause (R v Smith). The negligent administration of antibiotics resembles R v Cheshire: it was negligent, but the original wound was still operating, so this is unlikely to amount to the rare 'palpably wrong' treatment that broke the chain in R v Jordan. Ian's refusal of a blood transfusion on religious grounds is governed by the thin-skull rule: as in R v Blaue, where a stabbing victim's refusal of a transfusion on religious grounds did not break the chain, Harry must take Ian as he finds him, including his religious beliefs.

Conclusion. Neither the negligent treatment (R v Cheshire, not R v Jordan) nor the refusal of treatment (R v Blaue) breaks the chain. Both limbs of causation are satisfied, so Harry in law caused Ian's death and may be liable for homicide.

Mens rea is the mental element of a crime, and the seriousness of an offence often turns on which form of fault is required. This essay argues that the law on recklessness is now genuinely clear and works well after R v G, but that the law on oblique intention remains uncertain, so the statement is only partly accurate.

The law on intention. Direct intention — the defendant's aim or purpose (R v Mohan) — is clear and uncontroversial. The difficulty lies with oblique (indirect) intention. After a series of conflicting cases, the House of Lords in R v Woollin held that a jury may find intention where death or serious harm was a virtual certainty of the defendant's act and the defendant foresaw it as such. The strength of this test is that it sets a high threshold, so that only those who are virtually certain of the consequence are treated as intending it. The weakness is that Woollin says the jury 'may find' intention rather than 'must', so foresight of virtual certainty is only evidence of intention, not a definition of it. This leaves a 'moral elbow room' for juries but also creates uncertainty: two juries on identical facts could reach opposite verdicts, which undermines consistency and predictability in the most serious offences.

The law on recklessness. Here the statement is far more accurate. The subjective test in R v Cunningham — the defendant must actually foresee a risk and unreasonably take it — was for a time displaced for criminal damage by the objective test in R v Caldwell, which asked what a reasonable person would have foreseen. Caldwell was widely criticised as unjust, because it could convict defendants who genuinely did not appreciate the risk, including children and those of low intelligence (the facts of R v G and Another [2003] itself, where two young boys did not foresee that a fire would spread). In R v G the House of Lords overruled Caldwell and restored the subjective Cunningham test for criminal damage. This is generally regarded as a clear improvement: fault is now judged by what the defendant actually foresaw, which better matches the principle that criminal liability should reflect genuine moral blame.

Other forms of fault. The picture is more mixed elsewhere. Strict liability offences require no mens rea at all, which can seem harsh, although the courts apply a presumption that mens rea is required (illustrated by the contrast between cases such as R v Prince and Sweet v Parsley). Gross negligence as a basis for manslaughter has also attracted criticism for the vagueness of asking whether conduct was 'bad enough' to be criminal.

Evaluation and judgement. The statement is only partly accurate. On recklessness it is clearly correct: R v G removed the injustice of Caldwell and the subjective Cunningham test is both clear and principled. But on intention it overstates the position: while direct intention is clear, oblique intention under Woollin remains uncertain because foresight of virtual certainty is only evidence, leaving juries discretion that can produce inconsistent verdicts in murder cases. Judged overall, the law on mens rea is clearer and fairer than it was, particularly since R v G, but it does not yet 'work well' across the board: the most important uncertainty — the precise meaning of intention in murder — has still not been finally resolved.