Importance Of Mens Rea In Current Criminal Law

MENS REA

Mens Rea is described as "A guilty mind; a guilty or wrongful purpose; a criminal intent; Guilty knowledge and willfulness". [2]

In criminal law it is the basic principle that a crime consists of a mental element and a physical element. A person's awareness of the fact that his or her conduct is criminal is the mental element, and 'actus reus' (the act itself) is the physical element.

The concept of Mens Rea started its development in the 1600s in England when judges started to say that an act alone could not create criminality unless it was adjunct with a guilty state of mind. The degree for a particular common law crime varied for Mens Rea. Murder required a malicious state of mind, whereas larceny required a felonious state of mind.

Mens Rea is generally used along with the words general intent, however this creates confusion since general intent is used to describe criminal liability when a defendant does not intend to bring about a particular result. On the other hand specific intent describes a particular state of mind above and beyond what is generally required. [1]

NEED TO ESTABLISH MENS REA IN ORDER TO SECURE A CONVICTION

To secure a conviction, the prosecution side must prove that the defendant committed the crime while in a certain state of mind. The definition is specified of every crime before a person can be convicted as a prerequisite for Mens Rea. There are three states of mind which constitute the necessary Mens Rea for a criminal offence. These are intention, recklessness and negligence and are described below. [3]

Intention

Direct intent is the normal situation where the consequences of a person's actions are desired. Oblique intent comes in the situation where the consequence is known by the defendant as virtually certain, although it is not desired for its own sake, and the defendant goes ahead with his actions anyway.

Intention Based On Foresight of Consequences

The law states that foresight of consequences can only be evidence of intention if the accused knew that those consequences would definitely happen. Therefore just a possibility of a particular occurrence is not sufficient.

To clarify the jury's comprehension, Section 8 of the Criminal Justice Act 1967 deals with how intention or foresight must be proved, provides:

"A court or jury in determining whether a person has committed an offence, (a) shall not be bound in law to infer that he intended or foresaw a result of his actions by reason only of its being a natural and probable consequence of those actions; but (b) shall decide whether he did intend or foresee that result by reference to all the evidence drawing such inferences from the evidence as appear proper in the circumstances.

Consequently, where foresight needs to be established a person is not to be taken as intending the natural and probable consequences of his act simply because they were natural and probable, although a jury may infer that from looking at all the evidence. The test is therefore subjective and a jury is to decide what the defendant's intention was from considering all the evidence."

The cases where they were applied are:

The relationship between foresight and intention was considered by the House of Lords in:

* Hyam v DPP [1975] AC 55

* R v Moloney [1985] 1 All ER 1025

* R v Hancock and Shankland [1986] 2 WLR 257.

It is important to note that foresight of consequences is not the same as intention but only evidence of intention:

* R v Scalley [1995] Crim LR 504.

The most recent case in this area is the decision of the House of Lords in:

* R v Woollin [1998] 4 All ER 103.

The law says - To require proof that it was the defendant's purpose to bring about a particular consequence may involve placing a very heavy evidential burden on the prosecution (R v Moloney, 1985). Criminal law normally only requires proof of oblique intent (foresight intent) as opposed to direct intent

Recklessness

Recklessness is taking an unjustified risk. In most cases, there is clear subjective evidence that the accused predicted but did not desire the particular outcome. When the accused committed the act, the risk of causing the given loss or damage was taken. There is always some degree of intention included with recklessness.

The law says - Clause 18(c) of the DCCB proposes a 'subjectivist' formulation for the concept of recklessness:

"... a person acts- (c) 'recklessly' with respect to - (i) a circumstance when he is aware of a risk that it exists or will exist; (ii) a result when he is aware of a risk that it will occur; and it is, in the circumstances known to him, unreasonable to take the risk"

Negligence

Negligence means falling below the standard of the ordinary reasonable person. This test is objective and is based on the hypothetical person involving the defendant either doing something the reasonable person would not do, or not doing something which the reasonable person would do. It doesn't matter whether the defendant was unaware that something dangerous might happen, if the "reasonable person" would have realised the risk, and taken steps to avoid it.

The law says - The leading statement to describe 'criminal negligence' at common law for the purposes of establishing a test for manslaughter in English law, may be found in the statement by Lord Hewart CJ in the case of R v Bateman (1925) 28 Cox's Crim Cas 33:

"In explaining to juries the test which they should apply to determine whether the negligence, in the particular case, amounted or did not amount to a crime, judges have used many epithets, such as 'culpable', 'criminal', 'gross', 'wicked', 'clear', 'complete'. But, whatever epithet be used and whether an epithet be used or not, in order to establish criminal liability the facts must be such that, in the opinion of the jury, the negligence of the accused went beyond a mere matter of compensation between subjects and showed such disregard for the life and safety of others as to amount to

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