Introduction
In the criminal law of England and Wales, a core principle is that a person should not be punished for their actions unless they are blameworthy. This blameworthiness is typically associated with the defendant's state of mind when they committed the offence. The statement that "for one to be liable for crime his/her action must have been intention" suggests that only a person who deliberately aims to break the law can be found guilty. However, this is an oversimplification of the law concerning the mental element of a crime, known as mens rea. This essay will analyse this statement by explaining that while intention is a crucial form of mens rea, it is not the only one. The criminal law also imposes liability for recklessness, and in some specific circumstances, it can even impose liability without any fault at all through strict liability offences. Therefore, this essay will argue that the statement is an inaccurate representation of the principles of criminal liability.
The Elements of a Crime: Actus Reus and Mens Rea
To establish criminal liability, the prosecution must generally prove two key elements beyond a reasonable doubt: the actus reus and the mens rea. The actus reus refers to the external elements of an offence, meaning the prohibited act, omission, or state of affairs. For example, in the offence of theft, the actus reus is the appropriation of property belonging to another (Theft Act 1968, s 1). The mens rea, Latin for 'guilty mind', refers to the internal or mental element of the crime. This concerns the defendant’s state of mind at the time they were committing the actus reus. The requirement for mens rea ensures that the law punishes those who are morally at fault for their actions. It is a fundamental principle that these two elements must coincide in time for an offence to be committed (Card, 2018). The statement in the question focuses solely on one specific form of mens rea – intention – and presents it as the only standard for liability. The following sections will demonstrate why this is incorrect.
Intention: The Highest Form of Mens Rea
Intention is indeed the most serious level of mens rea and is required for some of the most serious crimes, such as murder. The law distinguishes between two types of intention: direct intent and oblique intent.
Direct intent is the most straightforward form. It applies where the defendant has a clear aim or purpose to bring about the prohibited consequence. For example, if a defendant points a gun at a victim and pulls the trigger with the aim of killing them, they have a direct intent to kill. The case of R v Mohan [1976] QB 1 defined direct intent as "a decision to bring about, in so far as it lies within the accused's power, the prohibited consequence, no matter whether the accused desired that consequence of his act or not" (at p. 11). This means the defendant's motive is irrelevant; what matters is that their purpose was to cause the result.
The law also recognises a more complex form of intention known as oblique (or indirect) intent. This covers situations where the prohibited consequence was not the defendant’s primary purpose but was an inevitable side effect of their actions. The law on this has developed through several key cases, with the current leading authority being R v Woollin [1999] AC 82. In this case, the House of Lords established a two-part test. A jury can find that a defendant had the necessary intention if the prohibited result was a virtually certain consequence of their action, and the defendant realised that it was a virtually certain consequence. For example, if a person plants a bomb on an aeroplane with the aim of destroying the cargo to commit insurance fraud, but knows that it is virtually certain the pilot will be killed when the bomb explodes, they can be found to have an oblique intention to kill the pilot, even if that was not their main goal. The Woollin test confirms that intention extends beyond just a person's aim or purpose, but it still represents a very high standard of fault. However, to say it is the only standard is to ignore other important mental states recognised by the law.
Recklessness: Foreseeing an Unjustified Risk
A significant number of criminal offences do not require intention. Instead, a lower level of mens rea, known as recklessness, is sufficient. A defendant is reckless if they foresee a risk of a particular consequence occurring, and go on to take that risk unreasonably. This form of mens rea is common in offences such as criminal damage and many non-fatal offences against the person.
The current legal test for recklessness was established in the House of Lords case of R v G and Another [2003] UKHL 50. This case involved two young boys who set fire to newspapers in a bin, which then spread and caused significant damage to a shop. The Lords overruled a previous, more objective test (from Metropolitan Police Commissioner v Caldwell [1982] AC 341) and held that the correct test was a subjective one. Under the R v G test, a person is reckless if:
- they are aware of a risk that a particular result will occur; and
- in the circumstances known to them, it is unreasonable to take that risk.
This test is subjective because it focuses on what the defendant themselves actually foresaw, not what a reasonable person would have foreseen. It is considered fairer because it does not punish defendants for failing to notice a risk that an ordinary person might have noticed, which is particularly important for young defendants or those with learning difficulties (Ormerod and Laird, 2021). The existence of recklessness as a basis for liability clearly refutes the statement that intention is always required. A person who throws a stone at a window, not intending to break it but realising there is a risk it might break, can be found guilty of criminal damage if they are found to have acted recklessly. Their liability is based on their conscious risk-taking, not on any intention to cause the damage.
Strict Liability: Liability Without a Guilty Mind
Perhaps the most compelling argument against the statement is the existence of strict liability offences. These are a category of crimes for which the prosecution does not need to prove any mens an rea for at least one element of the actus reus. Many strict liability offences are regulatory in nature, created by statute to protect public health and safety. They are often concerned with matters like pollution, food safety, and the sale of age-restricted products.
A key principle is that there is a presumption in favour of mens rea in criminal law, but Parliament can override this presumption. In deciding whether an offence is one of strict liability, the courts will look at the wording of the statute and the social context of the offence. In Sweet v Parsley [1970] AC 132, the court emphasised that a "guilty mind" is usually essential for criminal liability, especially for serious offences carrying a prison sentence.
However, for less serious, regulatory offences, the courts are more willing to find that an offence is one of strict liability. A classic example is Harrow LBC v Shah and Shah [1999] 3 All ER 868, where shop owners were held liable for selling a lottery ticket to a person under the age of 16. Their defence was that they had taken all reasonable steps to prevent this from happening, including putting up signs and instructing staff. However, the court held that the offence was one of strict liability, meaning their lack of intention or even negligence was irrelevant. The purpose of such offences is to encourage high standards of care in certain activities and to make enforcement easier. Another example is Pharmaceutical Society of Great Britain v Storkwain Ltd [1986] 1 WLR 903, where a pharmacy was convicted for supplying prescription drugs based on a forged prescription, despite having no knowledge that it was forged. The existence of this entire category of offences provides a clear and direct contradiction to the idea that intention is a necessary component of every crime.
Conclusion
In conclusion, the statement that "for one to be liable for crime his/her action must have been intention" is a significant misrepresentation of the law in England and Wales. While intention, in both its direct and oblique forms, is the highest level of fault and is a requirement for certain serious crimes like murder, it is by no means the only basis for criminal liability. The law has developed a hierarchy of fault to reflect different levels of blameworthiness. This essay has demonstrated that the concept of mens rea is broader than just intention. Recklessness, as defined in R v G, allows for liability where a defendant consciously takes an unjustified risk, without needing to have intended the outcome. Furthermore, the existence of strict liability offences shows that in some cases, primarily for regulatory matters, a defendant can be found guilty even without a "guilty mind" at all. Therefore, a proper analysis of the principles of criminal liability shows that intention, while important, is just one of several standards the law uses to determine a person's guilt.
References
Card, R. (2018) Card, Cross and Jones Criminal Law. 21st edn. Oxford: Oxford University Press.
Ormerod, D. and Laird, K. (2021) Smith, Hogan, and Ormerod's Criminal Law. 16th edn. Oxford: Oxford University Press.
Harrow LBC v Shah and Shah [1999] 3 All ER 868
Metropolitan Police Commissioner v Caldwell [1982] AC 341
Pharmaceutical Society of Great Britain v Storkwain Ltd [1986] 1 WLR 903
R v G and Another [2003] UKHL 50
R v Mohan [1976] QB 1
R v Woollin [1999] AC 82
Sweet v Parsley [1970] AC 132
Theft Act 1968
