Principles of Criminal Law – Intention – an essential element of crime

This research paper deals with various aspects of intention under criminal law. Intention is one of the essential elements for an act to constitute crime. Eventually this research paper identifies its research questions regarding Actus Reus and Mens Rea and on the aspect of proving intention.

In other words intention may be called “Mens Rea” which means “guilty mind”. And Actus Reus which means “guilty act” and needs to be proved beyond reasonable doubt in combination with Mens Rea. The research paper also deals with the basic meaning of term “intention” which says intention is a desire but a visionary desire. And lastly the question as to proving of the Mens Rea (guilty mind) or intention.


  1. What are Actus Reus and mens rea?
  2. How can intention be proved?

The mere commission of a criminal act(or bringing about the state of affairs that the law provides against) is not enough to constitute a crime, at any rate in the case of the ore serious crime. These generally require, in addition, some element of wrongful intent or other fault.

If a penal statute does not include a mental element expressly, the courts will sometimes, sporadically and without much discernible principle, imply the requirement, on the assumption that parliament probably intended the new offence to be read in the light of a general “ Mens Rea” requirement.

Mens rea in Latin means a guilty mind, but in legal use it denotes the mental state(subjective element) required for the particular crime in question. Or it can refer to the mental states commonly required for serious crimes (and a number of lesser offences).

Actus Reus denotes the external situation forbidden by law, the external elements of the offence. Normally, the required mental element is either:

  • An intention to do the forbidden act, or otherwise to bring about the external elements of the offence
  • In most of the crimes, recklessness as to such elements. Intention includes knowledge.1

The traditional common law definitions and the modern definitions approach the crime from different angles.

In the traditional common law approach, the definition includes:

  1. Actus Reus: unlawful killing of a human being;
  2. Mens rea: malice aforethought.

Modern law approaches the analysis somewhat differently. Homicide is a “results” crime in that it forbids any “intentional” or “knowing” conduct those results in the death of another human being. “Intentional” in this sense means the actor possessed a “purpose” or “desire” that his or her objective (i.e. death of another human being) be achieved. “Knowing” means that the actor was aware or practically certain that the death would result. Thus, the Actus Reus and mens rea of homicide in a modern criminal statute can be considered as follows:

  1. Actus Reus: any conduct resulting in the death of another individual;
  2. Mens rea: intent or knowledge that the conduct would result in the death.

In the modern approach, the attendant circumstances tend to replace the traditional mens rea, indicating the level of culpability as well as other circumstances. For example, the crime of theft of government property would include as an attendant circumstance that the property belong to the government.2

In order for an Actus Reus to be committed there has to have been an act. Various common law jurisdictions define act differently buy generally, an act is a bodily movement whether voluntary or involuntary”.3

In Robinson v. California4, the U.S supreme court ruled that a California law making it illegal to be a drug addict was unconstitutional because the mere status of being a drug addict was not an act and thus not a criminal. Commentator Dennis baker assets: “although lawyers find the expression Actus Reus convenient, it is misleading in one respect. It means not just the criminal act but all the external elements of an offence. Ordinarily, there is a criminal act, which is what makes the term Actus Reus generally acceptable.

Adams, R v [1957] Devlin J – A doctor was charged with “easing the passing” of elderly patients by giving drugs calculated to hasten their deaths (one had left a bequest – including a Rolls-Royce – to him in her will). Held: A doctor has no special defence, but “he is entitled to do all that is proper and necessary to relieve pain even if the measures he takes may incidentally shorten life”.

Frankland & Moore v R [1987] (Isle of Man) – [Murder – intention – what a reasonable man would have foreseen not the test] – DD were charged with murder in the Isle of Man, where no provision corresponding tos.8 of the Criminal Justice Act 1967 was at the time in force and the law of murder was essentially the English common law. The trial judge followed DPP v Smith and directed the jury that the test was what a reasonable man would have foreseen as the probable consequence of DD’s acts. Held: DD’s appeal against conviction, strongly disapproving DPP v Smith and declaring that no such objective had ever been part of the common law so far as murder was concerned.5

The general legal opinion is that “intention” cannot be satisfactorily defined and does not need a definition, since everyone knows what it means. This is largely true. Trouble has been caused in the past because when judges have provided the jury with definitions or tests of intention, they have used wide language going beyond the ordinary meaning of the word. 6

A range of words represents shades of intention in criminal laws around the world. The mental element, or mens rea, of murder, for example, is traditionally expressed as malice aforethought, and the interpretations of malice, “maliciously” and “willfully” vary between pure intention and recklessness depending on the jurisdiction in which the crime was committed and the seriousness of the offence.

  1. Offenses requiring basic intent specify a mens rea element that is no more than the intentional or reckless commission of the Actus Reus. The actor either knew (intended) or deliberately closed his mind to the risk (recklessness) that his action (Actus Reus) would result in the harm suffered by the victim. The crime of battery, for example, only requires the basic intent that the actor knew or should have known that his action would lead to harmful contact with the victim.
  2. A limited number of offences are defined to require a further element in addition to basic intent, and this additional element is termed specific intent. There are two classes of such offences:

(a) Some legislatures decide that particular criminal offenses are sufficiently serious that the mens rea requirement must be drafted to demonstrate more precisely where the fault lies. Thus, in addition to the conventional mens rea of intention or recklessness, a further or additional element is required. For example, in English law, s18 Offences against the Person Act 1861 defines the Actus Reus as causing grievous bodily harm but requires that this be performed:

  1. unlawfully and maliciously – the modern interpretation of “malice” for these purposes is either intention or recklessness, “unlawfully” means without some lawful excuse (such as self-defence); and with
  2. The intent either to cause grievous bodily harm or to resist lawful arrest.

The rule in cases involving such offenses is that the basic element can be proved in the usual way, but the element of specific intent must be shown using a more subjective than objective test so that the legislature’s express requirement can be seen to be satisfied.

(b) The inchoate offenses such as attempt and conspiracy require specific intent in a slightly different sense. The rationale for the existence of criminal laws is as a deterrent to those who represent a danger to society. If an accused has actually committed the full offense, the reality of the danger has been demonstrated. But, where the commission of the Actus Reus is in the future and the accused is merely acting in anticipation of committing the full offense at some time in the future, a clear subjective intention to cause the Actus Reus of the full offense must be demonstrated. Without this specific intent, there is insufficient evidence that the accused is the clear danger as feared because, at any time before the commission of the full offense, the accused may change their mind and not continue. Hence, this specific intent must also be demonstrated on a subjective basis.

At times a forensic psychiatric examination may be helpful in ascertaining the presence or absence of mens rea in crimes which require specific intent.7

The burden of proving a necessary mental element rests upon the prosecution. No presumption shifts the burden to the defendant. A defence that the defendant did not intend a consequence to follow from his act is frequently called a defence of accident, but this is merely a denial of intention and recklessness. And the burden of proving intention or recklessness rests on the crown. In the same way, the prosecution must prove dishonesty and fraud, where these were required elements.8it makes no difference that the mental element is a matter lying peculiarly within the knowledge of the defendant.9

The courts do not generally impose an evidential burden on the defendant on the issue of mens rea, but the facts put in would certainly be held sufficient to discharge the prosecution’s evidential burden. The jury must be directed that the burden of proving the intention to kill (where the charge is of murder) rests on the prosecution, and that such intention must be proved beyond reasonable doubt. But they may also be told that they are entitled to infer an intention from the evidence.

Certain modes of proof are accepted as sufficient to distinguish between the genuine and the feigned defence.

Facts are proved by direct evidence (the evidence of witnesses- including the defendant himself who perceived or experienced them) or by circumstantial (indirect) evidence (the evidence of witnesses as to other facts, from which the facts in issue are inferred). This is as true of the proof of intention as of the proof of other facts.

  1. Intention may be directly proved from what the defendant says. Evidence may be given of what he said contemporaneously with the act( by way of application of the rule res gestae rule), or of his prior or subsequent admission of what he intended to do. Such evidence is , of course , not conclusive in itself. It may be overborne by stronger evidence the other way. But usually it will be sufficient for a finding of intention. A subsequent admission of guilt is called a confession, whether it is made before or at the trial.
  2. If the defendant does not give the court this assistance, the jury (or magistrates) will have no direct access to his mind. Therefore, unless the defendant confesses, the state of his mind at the time in question must be judged from his outward acts, whether they are contemporaneous or not.

The evidence may be gathered from previous or subsequent conduct on his part. There may be evidence of previous planning, or a subsequent flight from justice. An important part of the law of evidence relates to evidence of other offences.

More frequently, the defendant’s intention will have to be collected from the evidence of what he did on the occasion in question. If a man loads a revolver, points it at another, aims it carefully at the victim’s heart and pulls the trigger, the jury will find that he intended to kill, because that is the only reasonable hypothesis to explain his conduct. 10

Thus, motive is the ulterior intention, but lawyers generally use the word to denote an unterior intention that is not part of the legal rule. Whether the court will interpret a particular intention as an illegal purpose or as an immaterial motive sometimes depends upon the court’s perception of policy, as in the offence of willfully obstructing a constable in the execution of his duty.

In the past, a body of legal opinion has favoured a concept of fictitious or constructive intention, in terms of the defendant’s knowledge that the consequence is probable.

However, the definition of intention as actual intention must be modified or explained in one respect. Awareness that a consequence is certain or practically certain may be taken to be intention in law, unless this is contrary to justice.


  • Glanville Williams, text book of criminal law.
  • Criminology, Ram Ahuja
  • Google scholar

I would like to thank Mrs. Mangala, Christ School of Law for giving me an opportunity to do a research paper on various aspects of intention under criminal law. This research gave me a vivid idea about Mens Rea and other topics under intention. It was a very interesting and I have learnt a lot regarding this topic.

1 The text book of criminal law , Glanville Williams, universal law publishing co. Pg 70-71

2 Dubber, pg-46

3 Model penal code 1.13(2)

4 370 U.S.660 (1962)


6  The text book of criminal law , Glanville Williams, universal law publishing co. Pg 74.

7 Burztajn HJ,scherr AE,Brodsky A. The rebirth of forensic psychiatry in light of recent historical trends in criminal responsibility, psychiatry clinic , 1994;17:611-635

8 Lusty(1963)1 WLR 606, 1 All E R 690

9 Spurge(1961) 2 QB at 212-213

10 The text book of criminal law , Glanville Williams, universal law publishing co. Pg 79-80

Leave a Reply

Your email address will not be published. Required fields are marked *

This site uses Akismet to reduce spam. Learn how your comment data is processed.