4. Mens rea

Stephen's description is the working one. The definition of all or nearly all crimes contains an outward element and a mental element, and the mental element varies from crime to crime. In murder it is malice aforethought. In larceny it is fraudulently, without a claim of right made in good faith, and with intent permanently to deprive. In forgery it is intent to defraud or to deceive. Mens rea is used here in that narrow sense: the positive mental element in the definition. It is not a general word for blameworthiness that also swallows the defences.

Intention is the highest form, because it is deliberate. It is subjective. The court asks what this accused intended, not what a reasonable person would have intended. Direct intention is a consequence that is wanted. A stabs B because A wants to kill B. That is intention even if the chance of success is small. A shot from half a mile away is still an intention to kill if killing is what the shooter is trying to do.

Oblique intention is a consequence that is not wanted, but is foreseen as a virtual certainty, and the person goes on. The time bomb on an aircraft, planted to collect the insurance on the diamonds, is the example. The passengers' deaths are a virtual certainty. Four formulations have been offered, from aim alone, through virtual certainty, down to a merely probable consequence. Moloney rejected the last of those. Foresight of a consequence as probable, or highly probable, or likely, is not the same as intention. The law requires direct or oblique intention.

Moloney and his stepfather, both drinking, competed to see who was quicker on the draw with a shotgun. Moloney said he did not aim. He pulled the trigger and the stepfather was dead. A direction that foresight of probability was intention was wrong. The House of Lords allowed the appeal. Hancock and Shankland, striking miners, pushed a concrete block from a bridge onto a convoy. It hit a taxi and killed the driver. They said they meant to frighten or to block the road, not to kill or cause serious harm. Murder was replaced by manslaughter. Nedrick poured paraffin through a letterbox. A child died. Lord Lane's two questions are the ones to use. How probable was the consequence? Did the defendant foresee it? Woollin is the model direction. A father threw his baby across a room. A direction in terms of "substantial risk" blurred intention and recklessness and widened murder. Where foresight is the route to intention, the direction is Nedrick's: virtual certainty, not a substantial risk.

Motive is not intention. In Ahlers a German consul who helped nationals to go home after war was declared intended to do his duty as consul. In Steane a man broadcast for the enemy to save his family from a concentration camp. He was held not to have intended to assist the enemy. A person can intend two results at once. Both are intended.

Recklessness, in Cunningham, requires proof that the accused was aware of the risk of causing harm. Caldwell recklessness, from Metropolitan Police Commissioner v Caldwell, treated a person as reckless if he gave no thought to an obvious risk. That objective form has been discarded. Gross negligence sits at the bottom of the scale. The fault is a gross lack of care. It is the fault element in one form of manslaughter, not a general substitute for intention.

The intent and the act must coincide in time. Dutch courage is the exception that proves the rule. If the intention is formed while sober, and drink is taken to nerve the person to carry it out, the earlier intention still counts. That is Gallagher.