The Meaning of Intention in English Criminal Law
The law generally requires that the accused possess a ‘blameworthy’ state of mind at the time the act comprising the offence was committed, and the basic presumption is that mens rea is required for every offence (‘actus non fit reus nisi mens sit rea’), authority for which stems from Sherras v De Rutzen [1895] –
“There is a presumption that mens rea … is an essential ingredient in every offence; but that presumption is liable to be displaced either by the words of the statute creating the offence or by the subject matter with which it deals, and both must be considered.”
This proposition, that mens rea is the default position for an offence unless its implication is clearly outweighed by other factors, was secured in Sweet v Parsley [1970]. Per Lord Reid: “it is universal principle that if a penal provision is reasonably capable of two interpretations, that interpretation which is most favourable to the accused must be adopted.” Thus the requirement of intention is presumed where a matter is uncertain. However, many statutes do not use the language of ‘knowingly’ or ‘intentionally’ acting; in the case of such strict liability offences, usually regulatory offences without the “disgrace of criminality”[1], there is no element of intent whatsoever for the prosecution to establish.[2]
Normally, an objective view of mens rea, where the defendant fails to recognise the risk of his acts where a reasonable person would have done so, (recklessness in the Caldwell sense) cannot be said to constitute intention. Rather, a subjective, purposive view of intent encompasses the intention to act or to cause a consequence, or foresight or awareness of a risk of acting or causing the consequence (Cunningham [1957]). For the majority of offences, recklessness will suffice for a conviction, but some do require proof of an intent, including murder (an intent to kill or inflict grievous bodily harm), theft, burglary, and wounding with intent. For the distinction between
“There is a presumption that mens rea … is an essential ingredient in every offence; but that presumption is liable to be displaced either by the words of the statute creating the offence or by the subject matter with which it deals, and both must be considered.”
This proposition, that mens rea is the default position for an offence unless its implication is clearly outweighed by other factors, was secured in Sweet v Parsley [1970]. Per Lord Reid: “it is universal principle that if a penal provision is reasonably capable of two interpretations, that interpretation which is most favourable to the accused must be adopted.” Thus the requirement of intention is presumed where a matter is uncertain. However, many statutes do not use the language of ‘knowingly’ or ‘intentionally’ acting; in the case of such strict liability offences, usually regulatory offences without the “disgrace of criminality”[1], there is no element of intent whatsoever for the prosecution to establish.[2]
Normally, an objective view of mens rea, where the defendant fails to recognise the risk of his acts where a reasonable person would have done so, (recklessness in the Caldwell sense) cannot be said to constitute intention. Rather, a subjective, purposive view of intent encompasses the intention to act or to cause a consequence, or foresight or awareness of a risk of acting or causing the consequence (Cunningham [1957]). For the majority of offences, recklessness will suffice for a conviction, but some do require proof of an intent, including murder (an intent to kill or inflict grievous bodily harm), theft, burglary, and wounding with intent. For the distinction between