Loss of life arising from recklessness or deliberate action, is one decided by a jury; however, when the scope of murder is extended beyond reasonable bounds, the verdict does not always reflect the evidence.

When a father became enraged to the point of throwing his three-month old son onto a hard surface, his actions resulted in a fractured skull and death. When indicted, the evidence presented to the jury left questions as to the mens rea of the defendant; and so, it was then left to the presiding judge to direct them accordingly.

In previously similar cases, the test for murder relied upon guidance constructed in R v Nedrick, and one which asked that any jury must avoid the implication of intent, unless they could believe that death or serious bodily harm was ‘virtually certain’ as a result of the defendant’s actions.

This approach narrowed the charge of murder, while allowing for anomalies (such as those presented in the evidence) to contribute towards an alternate conviction for manslaughter.

However, on this occasion the judge derogated from the explicitness of the Nedrick test, using instead, guidance that the appellant:

“[M]ust have realised and appreciated when he threw that child that there was a substantial risk that he would cause serious injury to it…”

Here, the jury found the appellant guilty of murder and dismissed the defence of provocation; and so, when taken to the Court of Appeal, the appellant argued that the widening of the mens rea of murder by the judge, amounted to a gross misdirection and error in law.

The Court dismissed the appeal, while holding that the virtual certainty of death or serious bodily harm was one reserved for cases with limited evidence relating to the actus reus of the accused; and that on this occasion there was sufficient grounds for a widening of the meaning of murderous intent.

However, questions were raised around the need for jury direction in the absence of compelling evidence; in particular whether the defendant intended to kill or cause serious bodily harm, and whether it was virtually certain that in such events, death or serious bodily harm would occur, and that it had been appreciated by the defendant at the time of the act.

Having been brought before the House of Lords, the integrity of the Nedrick test was scrutinised, along with the relevance of judicial direction in matters where the balancing of evidence, and the mens rea of the defendant were pivotal to a fair conviction, as outlined in section 8 of the Criminal Justice Act 1967.

Here, it was found that in the twelve years that the courts had relied upon the Nedrick test, there had been no difficulties in it’s application due to it’s simplicity; and despite some shortcomings in terrorism cases, the test itself was adaptable enough to withstand changes in circumstance.

It was also agreed that by widening the scope of the test through the misuse of words, the trial judge had himself been reckless in his misdirection, and that the conviction was to be quashed in lieu of a manslaughter charge, while further reminding the parties that:

“A jury cannot be expected to absorb and apply a direction which attempts to deal with every situation which might conceivably arise.”


Criminal damage to another’s property when endangering the lives of those in possession, are simultaneous acts that while seemingly joined, are determinable only by the mens rea attached.

In this matter, the defendant appealed against such a conviction on grounds that while capable of the crime itself, he could not be charged for an offence based on subjective opinion, as opposed to lawfully submitted evidence.

After falling out with his business partner, the appellant arrived at his colleague’s home brandishing a rifle; and having rung the doorbell, he then proceeded to aim and fire the gun at the bedroom window, living room window and front door.

No harm was caused to the occupiers; however, once arrested and indicted, he was charged with three offences: possession of a firearm with intent to endanger life under section 16 of the Firearms Act 1968, criminal damage to property with intent under section 1(1) of the Criminal Damage Act 1971 and criminal damage to property while endangering the lives of others, whether through recklessness or intent under section 1(2) of the 1971 Act.

Having pleaded guilty to the first two charges, the appellant argued the third was superfluous to the crime, as the damage caused to the property was not such as to endanger lives, whereas the firing of the gun was evidently sufficient.

Basing his decision on the interpretation of section 1(2) as including not just the physical damage, but the mental intention (mens rea) to endanger lives, the judge dismissed the claim and directed the jury accordingly.

This prompted the appellant to plead guilty, before seeking redress in the Court of Appeal, who allowed the appeal, before the Crown moved to seek the wisdom of the House of Lords. 

While asking the House to determine if, under section 1(2)(b) of the 1971 Act, the prosecution were obliged to establish guilt of endangering life by either the property damage, or the actions of the accused, the House held that the respondent had accepted the recklessness of his actions.

And so, despite the contention of the Crown, it was implausible to suggest that the draftsmen of the 1971 Act had imagined that section 1(2)(b) was to be construed so as to consider the actus reus of the defendant when carrying out the crime, as being sufficient to establish endangerment of life, as opposed to endangerment arising from the physical damage caused.

In the alternative, it was further suggested by the House that the respondent had become culpable for an additional charge under section 17(2) of the Firearms Act 1968, and so the application of section 1(2) of the 1971 Act was both irrelevant and by construction void of effect, while concluding that:

“Upon the true construction of section 1(2)(6) of the Criminal Damage Act 1971 the prosecution are required to prove that the danger to life resulted from the destruction of or damage to property; it is not sufficient for the prosecution to prove that it resulted from the act of the defendant which caused the destruction or damage.”

Hence, the House dismissed the appeal by a majority, while reminding the parties that:

“A person who, at the time of committing an offence under section 1 of the Act of 1971, has in his possession a firearm commits a distinct offence under section 17(2) of the Act of 1968…”


Sexual assault and involuntary intoxication of the accused become central to the question of defence when the mens rea remains equally present despite the influences of a third party.

In this House of Lords appeal, the idea that perhaps existing criminal law has overlooked the subjective effects of those liable for acts against the person, is explored before deciding how best to answer it.

In this case, the actions of two men were complicit to the sexual assault and degradation of a fifteen year-old boy, while under the influence of a powerful sedative.

The background to the matter stemmed from a business arrangement gone sour, and that left the respondent victim to the subterfuge of his colleague, who unknown to him, was acting on behalf of the slighted party.

Having been paid to place the respondent in a compromising position, the man had arranged for them to invite the teenager to a room, before using a number of drugs to induce the victim into a state of unconsciousness, whereupon the respondent engaged in a variety of lewd and sexually abusive acts as his colleague secretly filmed and took pictures of his assault upon the boy.

When the images and recorded film were obtained by the police, the two men were taken to court and charged with indecent assault.

Upon conviction, the the respondent pleaded a defence of involuntary intoxication, on grounds that the co-defendant had also plied him with a similar drug, and that by extension, his actions upon the victim were as a result of diminished responsibility.

It was on this premise that the respondent pleaded his innocence and sought acquittal on the fact that as previous case law provided, involuntary intoxication was sufficient enough to remove the contributory effect of mens rea; and so while the intention to carry out an indecent sexual act was latent within the respondent, it was only manifested through the actions of another, and not by conscious choice.

Precedent for a defence under voluntary intoxication rested upon the outcome of R v Majewski, where the court found that the informed decision to drink excessive amounts of alcohol was not suffice to exemption from the consequences of damage caused afterwards.

However, where a defendant has lost conscious reasoning through the act of another, it was held that mens rea could not logically exist as the decision to act unlawfully was not one of full cognisance but diminished thinking.

In this instance, the capability to sexually abuse minors was knowingly present within the respondent, and so reliance upon an unwittingly ingested drug prior to the act, reduced the foundation of that defence when used as a means of acquittal.

Having subsequently been challenged in the Court Appeal, the conviction was quashed, after which the Crown appealed to the House for reasons of public interest.

The question raised was whether a predilection for young boys negated the defence of involuntary intoxication; and if so, whether it was for the prosecution to establish, or that of the defendant.

Having traced the legal position from as far back as 1830, the idea that temporary insanity or ‘lunacy’ could provide sufficient defence to a criminal act was rebuked when it appeared that certain generosities were afforded those accused, albeit in circumstances contrary to their normal course of behaviour.

In this instance, there was clear evidence that the respondent was predisposed to engaging in deviant sexual acts, and so regardless of what volume or form of intoxication preceded the acts, it was not such that became the source of that unlawfulness, but rather the mindset and neurology of the accused at the point of origin when establishing mens rea.

For that reason, the House denied that the current boundaries of involuntary intoxication defence were to extend further than as before, and that in light of that fact the Crown’s appeal was to be upheld, while going further to remind the parties that:

“[I]t is no answer for the defendant to say that he would not have done what he did had he been sober, provided always that whatever element of intent is required by the offence is proved to have been present.”


As is peculiar to criminal law in most jurisdictions, the necessary component for murder requires evidence beyond a reasonable doubt of the both the act itself (actus reus), and the subjective intention (mens rea) of those accused.

And so, on this occasion the English criminal courts were left with no option other than to reduce a murder sentence to manslaughter, on grounds that there was simply insufficient evidence to adduce deliberate and unlawful killing, as opposed to what could only be construed as a momentary loss of control on the part of the defendant.

Having been born to unloving and dysfunctional parents, the appellant had been later adopted by a well educated and devoted couple when aged only eight years of age, and whose only wish was for her to have a better life than the one she had left behind.

Sadly during her adolescence, the appellant was further diagnosed with an IQ of just 74, a personality disorder, attention deficit and hyperactivity disorder (ADHD) and prolonged depression, for which she was on prescribed medication.

After meeting her former partner at the young age of sixteen, the appellant soon became pregnant, and gave birth to their son Billy two years later; and although the two of them remained together for a further three years, her partner was eventually incarcerated for assaulting her; an act which had followed years of his routine verbal and physical abuse towards her both before, and after, their son’s arrival.

At the point of her indictment before the Central Criminal Court, the appellant was reported to have called the ambulance services complaining that her son had stopped breathing, and yet despite clear instructions to perform emergency cardiopulmonary resuscitation (CPR) at the time of the call, her son was pronounced dead almost five hours later.

After which, it was claimed by court that the appellant had murdered her son by way of asphyxiation, and that there was sufficient medical evidence upon which to sustain the conviction; whereupon the appellant challenged the verdict in the Court of Appeals.

Here, the appellant contended that when reaching summary judgment, the trial court had erroneously accepted circumstantial evidence relating to previous interactions with her son, and which presented her in a poor light,

However, the court referred to R v Penman; in which, the deciding court had held that:

“[W]here it is necessary to place before the jury evidence of part of a continual background of history relevant to the offence charged in the indictment and without the totality of which the account placed before the jury would be incomplete or incomprehensible, then the fact that the whole account involves including evidence establishing the commission of an offence with which the accused is not charged is not of itself a ground for excluding the evidence.”

R v Penman

Thus, the first aspect of her appeal was denied, while on a second count, the appellant claimed that lack of witness testimony, and only one physical symptom of trauma, prevented the court from establishing beyond a reasonable doubt that she had intended to murder, or at the very least unlawfully kill her son in the moments before his death.

Here, the court was reliant upon the presence of petechial haemorrhaging upon her child’s face, which in most instances was attributable to asphyxial death.

However, there was also theoretical argument that prolonged resuscitation could also prove a contributory factor; yet further circumstantial evidence proposed this as incredible, based upon the appellant’s refusal to perform CPR whilst waiting for the ambulance crew to arrive, and via witness testimony citing visible evidence of the symptoms upon their arrival.

In addition to this, there was further evidence of bleeding from the child’s ears, which according to expert medical testimony, had often been found present when addressing traumatic asphyxiation cases in which young children had become trapped in washing lines.

A fact which only exacerbated the suggestion that the appellant had either strangled or smothered her son whilst alone with him; therefore, the court held that there was sufficient evidence for a jury to determine that the appellant had unlawfully killed her child.

This left only the third count, which was that a murder conviction was unsafe due to the first two factors; and that there was simply no direct evidence to support the contention that the appellant had wilfully and with malice, killed her child, but that instead, the best the court could hope to rely upon was a manslaughter charge; an argument that caused the court to uphold the third ground of appeal, before quashing the murder conviction on grounds that in R v Stacey it had held that:

“[A]n intent to do serious bodily harm may be quickly formed and soon regretted; but so may a less serious intent, simply to stop a child crying by handling him in a way that any responsible adult would realise would cause serious damage or certainly might do so. That would only provide the mental element necessary for manslaughter.”


Reckless driving, while contextually similar to the criminal charge of recklessness, was at the time of this case, still unclear in terms of the mens rea of drivers brought to trial. Unfortunately for the victim’s family, this uncertainty resulted in an acquittal from the offence on grounds of a confused and thereby ineffective, jury.

In 1979, a couple took a visit to their local off-licence in order to purchase some soft drinks for their children. Parking opposite the shop, the mother entered the store, before standing at the kerbside in preparation for crossing back over the road.

Moments after blowing her husband a kiss, the victim stepped into the road, before being struck by one of two motorcycles, dying instantly, while being carried at speed on the front of the driver’s vehicle.

Upon indictment, the defendant was convicted by a majority jury of reckless driving under section 1 of the Road Traffic Act 1972; while there were questions raised at the time around the exact speed at which the motorcycle was travelling, with opinions ranging from 30 -80mph.

This resulted in a lengthy trial that despite an absolute conviction, left the jury seeking clarification as to exactly what reckless driving required, and whether there was a need to appreciate the mindset of the defendant at the time both before, and during, the time of the offence.

Upon appeal, the Court quashed the conviction upon grounds that where uniform agreement could not be found as to how reckless driving existed under the 1972 Act, there could be no established verdict beyond any reasonable doubt.

In response, the regional Chief Constable appealed on behalf of the Crown to the House of Lords, while trying to find agreement as to what section 1 of the Road Traffic Act 1972 truly meant.

Referring to the meaning of recklessness as defined by R v Murphy, the courts recognised that:

“A driver is guilty of driving recklessly if he deliberately disregards the obligation to drive with due care and attention or is indifferent as to whether or not he does so and thereby creates a risk of an accident which a driver driving with due care and attention would not create.”

R v Murphy

However, in cases such as R v Caldwell, the jury were required to consider not only the actus reus (actions) of the accused, but the mens rea (mindset) prior to the act of arson duly charged.

This by convention, had not been something applied during road traffic accidents, therefore the jury in this trial were left confused as to whether an objective evaluation was in itself sufficient, or whether subjective consideration was needed to fully contain the origin of recklessness, as opposed to arguments over which speed the defendant was travelling when the offence occurred.

Though a comprehensive chronology of reckless driving within the road traffic offences, the House held that there needed to be two elements to a conviction of recklessness, namely:

(i) “[T]hat the defendant was in fact driving the vehicle in such a manner as to create an obvious and serious risk of causing physical injury to some other person who might happen to be using the road or of doing substantial damage to property…”


(ii) “[T]hat in driving in that manner the defendant did so without having given any thought to the possibility of there being any such risk or, having recognised that there was some risk involved, had nonetheless gone on to take it.”

Therefore, it was left to the jury to determine if, as hypothetical road users themselves, they felt that a defendant did knowingly choose to take charge of a vehicle with the intention to cause harm, as opposed to harm being caused by means beyond their control.

This by effect, also rendered the Murphy direction null and void, while paving the way clear for expeditious trials under similar circumstances, while the House reminded the parties that:

“A direction to a jury should be custom built to make the jury understand their task in relation to a particular case. Of course it must include references to the burden of proof and the respective roles of jury and judge. But it should also include a succinct but accurate summary of the issues of fact as to which a decision is required, a correct but concise summary of the evidence and arguments on both sides, and a correct statement of the inferences which the jury are entitled to draw from their particular conclusions about the primary facts.” 


Actus reus and mens rea are two very widely used criminal law maxims that once were essential for the clarification of intention, but sadly over the passage of time, the former has become victim to legal abuses by lawyers seeking to bend a virtue that perhaps warrants review after hundreds of years of application.

In this matter, the accused was a homeless man, who after drinking a reasonable amount of alcohol, entered a vacant home, before taking up occupancy in an empty room.

After lighting a cigarette, he then fell asleep on a mattress; at which point, the cigarette began to ignite the mattress fibres, causing it to slowly smoulder.

Upon waking, the appellant saw what was happening, but chose to simply get up from the mattress and walk into an adjacent room, before returning to sleep.

It was not until the arrival of the local fire brigade, that he awoke again to discover that the room he had since left was now ablaze, and that significant fire damage had resulted from his failure to extinguish the burning mattress.

Upon summary, the appellant stood accused of recklessness causing criminal damage to another’s property, that in turn led to a conviction of arson under section 1(1)(3) of the Criminal Damage Act 1971.

While under appeal, it was argued that both mens rea and actus reus are key elements to a criminal conviction, and that because the appellant had left the room, he could not be found liable through inaction, as opposed to action (actus reus), while further arguing that he was under no obligation to extinguish the burning mattress, and that his mens rea was ultimately irrelevant to the proceeding fire.

The crux of this defence misdirection is that while actus reus explores the actions of a defendant, the reality of life is that inaction by its own virtue, is an equally destructive process when the party in question can see very clearly that it was his previous actions that initiated the root offence, and that there were sufficient steps available to the defendant to prevent the damage from spreading (including seeking the assistance of third parties to that effect).

Therefore, a defence based upon the interpretation of a word does nothing to circumvent the social responsibility of those faced with potentially (yet avoidable) damaging situations.

While the appeal was dismissed, it was again put before the House of Lords; who listened intently to a bargaining application for the quashing of an arson charge.

Here, the House explained that it was evident the appellant had elected to recklessly avoid his personal obligation to prevent the fire from growing, in favour of distancing himself from his original action, regardless of the foreseeable consequences that followed, while the House reminded the parties that:

“The habit of lawyers of referring to the “actus reus” suggestive as it is of action rather than inaction, is no doubt responsible for any erroneous notion that failure to act cannot give rise to criminal liability in English Law.”