Mens rea — common mistakes

In problem questions, distinguish clearly between direct and oblique intention. Use the 'virtual certainty' test from Woollin when the result was not the defendant's primary aim but was an unavoidable side-effect of their actions.

When analysing a scenario where the defendant's 'guilty mind' seems to appear before or after the 'guilty act', you must discuss the coincidence rule and apply the exceptions of 'continuing act' or 'one transaction' to determine if liability can still be found.

No. Motive is the reason why a person commits a crime (e.g., greed, revenge), whereas intention is their aim or purpose to bring about the prohibited consequence. A good motive, such as ending a loved one's suffering, does not negate a criminal intention to kill. The law is concerned with what the defendant intended to do, not why they did it.

Caldwell used an objective test: would a reasonable person have foreseen the risk? This could convict a defendant who genuinely did not see the risk themselves. R v G overruled this for criminal damage (and the principle is now applied generally), establishing a subjective test: did the defendant themselves foresee the risk and take it unreasonably? This is seen as fairer as it judges the defendant based on their own state of mind and awareness.

Generally, no, as they must coincide. However, the courts have developed exceptions to prevent absurd outcomes. In Fagan v MPC, the defendant accidentally drove onto a policeman's foot (actus reus without mens rea) but then refused to move (forming the mens rea). The court viewed the actus reus as 'continuing' until the mens rea was formed, thus establishing coincidence and liability.