The basic requirement of the principle of mens rea is that accused must have been

aware of all those elements in his act which make it the crime with which he is

charged.1 That means, he must have intended the actus reus or have been reckless

whether he caused an actus reus or not. It is not necessary that he must know that

the act which he is going to commit is crime.2

As general rule a man is criminally liable for such consequences of his conduct as

he actually foresaw. Liability for such unforeseen consequences which he ought to

have foreseen is termed liability for negligence. It is only in exceptional cases that

criminal liability is imposed for negligence; usually mens rea, actual foresight of the

consequences which constitute the actus reus must be proved.

Acc. To Austin “bodily movements obey wills. They move when we will they

should. The wish is volition and the consequent movements are acts. Besides the

volition and act, it is supposed there is a will which is the author of both. The

desire is called an act of the will, when I will a movement I wish it, and when I

conceive the wish I expect that the movement wished will follow. The wishes

followed by the act wished, are only wishes which attain their ends without

external means. Our desires of acts which immediately follow our desires of them

are volitions. The act I will, the consequence I intend. This imaginary will is

determined to action by motives.” The desire which implies the motion is known

as volition. Where this desire is not produced by fear or compulsion the act is said

to be voluntary one. ‘The longing for the object desired which sets the volition in

motion is motive. The expectations that desired motions will lead to certain

consequences is the intention.’3

1 JC Smith, The Guilty Mind in the Criminal Law, (1960) 76 L.Q.R. 1.2 SN Mishra, Indian Penal, Code3 Huda. S., Principles of Law of Crimes in British India, P. 172

Intention is the purpose or design with which an act is done. It is the

foreknowledge of the act, coupled with the desire of it. Such foreknowledge and

being desire the cause of the act, in as much as they fulfil themselves through the

operation of will. In Intention, the actor chooses, decides, resolves to bring a

prescribed harm into being, he consciously employs means to that end.4

Intention refers to the immediate object, while motive refers to the ulterior object

which is at the root of the intention. In other words intention is the means and

motive is the end. But innocence of the motive may not excuse where intention

will excuse. But motive does not punish and good motive does not excuse. A

removes a cow belonging to B to save her from being slaughtered. Here A had an

excellent motive but he will not be excused for he unlawfully deprives B his cow

which legally belongs to him. Thus, we see that criminal law does not take into

account motives of a man but his intentions.

4 Hall, Jerome; Genral Principles of Criminal Law(2nd Edition) P.112

Walker and Hayles, R v (1990) CA[Murder - intention –  includes knowledge or foresight]W and H threw V from a third-floor balcony. V was not killed. Held: ‘[O]nce one departs from absolute certainty, there is bound to be a question of degree. Reading Lord Scarman’s speech in Hancock and [reading] Nedrick we are not persuaded that it is only when death is a virtual certainty that the jury can infer intention to kill. Providing the dividing line between intention and recklessness is never blurred, and provided it is made clear ... that it is a question for the jury to infer from the degree of probability in the particular case whether the defendant intended to kill, we would not regard the use of the words "very high degree of probability" as a misdirection.’W and H guilty of attempted murder.

Nedrick (1986) CA supports Hancock and Shankland  The facts of which were essentially the same as in Hyam, but paraffin this time.The principles coming from it being: Lord Lane approved Lord Scarman's speech in Hancock where he said:  "... the greater the probability of a consequence the more likely it is that the consequence was foreseen and that if that consequence was foreseen the greater the probability is that that consequence was also intended."   In other words, evidence of foresight, is evidence of intent. When determining whether the defendant had the necessary intent, it may therefore be helpful to ask(1) How probable was the consequence which resulted from the defendant's voluntary act? (2) Did he foresee that consequence? 

Smith, DPP v  [1960] HL  [Murder - intention – intention to kill or GBH – intention can be formed instantly – intention can be inferred]

D trying to escape from the police in a car was signalled to stop. He did not do so. A PC jumped onto the car’s bonnet. D drove at high speed, swerving from side to side, until the officer was thrown off and killed.

Held: It was clear that he had intended to cause grievous bodily harm, which meant no more and no less than really serious injury. Viscount Kilmuir LC;"I can find no warrant for giving the words “grievous bodily harm” a meaning other than that which the words convey in their ordinary and natural meaning. “Bodily harm” needs no explanation and “grievous” means no more and no less than “really serious”."

Guilty murder

Section 8 Criminal Justice Act 1967 A court or jury, in determining whether a person has committed an offence, (a) shall not be bound in law to infer that he intended or foresaw a result of his actions by reason only of its being a natural and probable consequence of those actions; but (b) shall decide whether he did intend or foresee that result by reference to all the evidence, drawing such inferences from the evidence as appear proper in the circumstances

Hyam v DPP (1975) HL[Murder - intention –  intention to commit homicide or grievous bodily harm]D sought to frighten an occupant of a house by pouring petrol though the letterbox and then igniting it, resulting in the death of two occupants by asphyxia. Held: Intention is to be distinguished from desire and foresight of probable consequences. Lord Hailsham LC: ‘[A] man may desire to blow up an aircraft in flight in order to obtain insurance moneys. But if any passengers are killed he is guilty of murder, as their death will be a moral certainty if he carries out his intention.’ Therefore, intention is established

‘where the defendant knows that there is a serious risk that death or grievous bodily harm will ensue from his acts, and commits those acts deliberately and without lawful excuse ... It does not matter in those circumstances whether the defendant desires those consequences to ensue or not, and in none of these cases does it matter that the act and the intention were aimed at a potential victim other than the one who succumbed.’ ‘A man may do an act with a number of intentions. If he does it deliberately and intentionally, knowing when he does it that it is highly probable that grievous bodily harm will result ... [then] whatever other intentions he may have had as well, he at least intended grievous bodily harm.’Guilty

Cunningham, R v (1981) HL[Murder - intention –  intention to commit homicide or grievous bodily harm]D attacked V in a pub, hitting him repeatedly with a chair, which resulted in V’s death.

Held: Intention to cause grievous bodily harm, but not to cause death, is sufficient to establish the mens rea for murder. Lord Hailsham LC: ‘malice aforethought has never been limited to the intention to kill or to endanger life’. Lord Edmund-Davies (dissenting): "I find it passing strange that a person can be convicted of murder if death results from, say, his intentional breaking of another’s arm, an action which, while undoubtedly involving the infliction of ‘really serious harm’ and, as such, calling for severe punishment, would in most cases be unlikely to kill. And yet, for the lesser offence of attempted murder, nothing less than an intent to kill will suffice. But I recognise the force of the contrary view that the outcome of intentionally inflicting serious harm can be so unpredictable that anyone prepared to act so wickedly has little ground for complaint if, where death results, he is convicted and punished as severely as one who intended to kill."Guilty

Moloney, R v (1985) HL

Held: Lord Bridge: ‘foresight of consequences, as an element bearing on the issue of intention in murder, or indeed any other crime of specific intent, belongs, not to the substantive law, but to the law of evidence ... In the rare cases in which it is necessary for the judge to direct a jury by reference to foresight of consequences, I do not believe it is necessary for the judge to do more than invite the jury to consider two questions. First, was death or really serious injury in a murder case (or whatever relevant consequence must be proved to have been intended in any other case) a natural consequence of the defendant’s voluntary act? Secondly, did the defendant foresee that consequence as being a natural consequence of his act? The jury should then be told that if they answer yes to both questions it is a proper inference for them to draw that he intended that consequence.’

Nedrick, R v (1986) CA

 Held: Per Lord Lane CJ: ‘Where the charge is murder and in the rare cases where the simple direction [on intent] is not enough, the jury should be directed that they were not entitled to infer the necessary intention unless they feel sure that death or serious bodily harm was a virtual certainty (barring some unforeseen intervention) as a result of the defendant’s actions and that the defendant realised that such was the case. Where a man realises that it is for all practical purposes inevitable that his actions will result in death or serious harm, the inference may be irresistible that he intended that result, however little he may have desired or wished it to happen. The decision is one for the jury, to be reached on consideration of all the evidence.’

Hancock and Shankland, R v (1986) HL[Murder - intention –  includes knowledge or foresight] Held: Lord Scarman: The issue of probability regarding death or serious injury is critical to determining intention, yet Moloney omitted any reference in its guidelines to this issue.

‘[T]herefore, the Moloney guidelines as they stand are unsafe and misleading. They require a reference to probability. They also require an explanation that the greater the probability of a consequence the more likely it is that the consequence was foreseen and that if that consequence was foreseen the greater the probability is that that consequence was also intended.’

Jury normally decides what intention is.Common sense of the juryDirect intention 

If D points a gun and fires it is immaterial if poor shot or out of range. He has intention, he has:

1. Purpose 2. foresight of certainty

 Therefore D has intention if he realised the result was certain to follow.Problem area.....Indirect (or sometimes called oblique) Intention .... I didn’t mean to kill him, harm her, cause as much damage, start a fire. Foresight of certainty = intentionIndirect intention requires foresight of the consequences. Intention is not some form of recklessness, it is more than that.There is a line of cases where the meaning of intention has been developed. Note: each of these cases is relevant, they were not overruled by the later cases, the ration decidendi was refined.The line of cases, and CJ Act.DPP v Smith [1960] HL (PC thrown from car bonnet) Section 8 Criminal Justice Act 1967 (subjective test required) Hyam v DPP (1975) HL (Petrol through letter box) R v Cunningham (1981) HL (Intention to GBH sufficient) R v Moloney (1985) HL (Quick draw) R v Nedrick (1986) CA (Paraffin through letter box)R v Hancock and Shankland (1986) HL (Concrete on taxi)DPP v Smith [1960] HL Held: Intention can be formed instantly,The objective test of intention used was reversed by the Criminal Justice Act 1967 Section 8 Criminal Justice Act 1967 A court or jury, in determining whether a person has committed an offence, (a) shall not be bound in law to infer that he intended or foresaw a result of his actions by reason only of its being a natural and probable consequence of those actions; but (b) shall decide whether he did intend or foresee that result by reference to all the evidence, drawing such inferences from the evidence as appear proper in the circumstances.R v Cunningham (1981) HL Intention to cause serious injury (GBH) is sufficient to found a charge of murder, it is not necessary to intend the death of V. Hy am intention = foreseen as highly probable (or merely probable)Therefore wider than certainty. Moloney intention - leave it to the jury ="foresaw, as natural consequence" (little short of overwhelming, or virtually certain)…if ‘yes’ jury can infer intentionviz. it is evidence of intention , not necessarily is intention .

Hancock & Shankland- ordinary usage - not foresight of consequences - if evidence of foresight intention can be inferred... "Greater probability of consequences...more likely they were foreseen...if consequences foreseen...the greater probability consequences intended"but; ‘natural consequences’ ambiguous. Nedrick- death or serious injury a ‘virtual certainty’ (barring novus)and D realised.so .....Intention can be inferred from ‘virtual certainty’ 

Consequences which are his purpose, foresees and desires irrespective of probability

  Can be inferred, if virtually certain and he knows it, though not desired.

Therefore‘foresees virtual certainty’ = subjective‘is virtually certain’ = objectiveBoth have to be proved. High standard on prosecution.Upheld in Woollin (1998) with some refinements of the ratio decidendi of Nedrick.Foreseeability in mens rea

Consequence desired: intention Consequence foreseen as virtually certain: intention may be found Consequence foreseen as probable: typically recklessness (subjective) Consequence foreseen as possible: typically recklessness (subjective) Consequence not foreseen but ought to have been: negligence (objective

recklessness) (now rare since R v G [2003] ) Consequence even reasonable man would not foresee: strict liability

Draft Criminal Code"A person acts ‘intentionally’ with respect to...a result when he acts either in order to bring it about or being aware that it will occur in the ordinary course of events."