MENS REA (MURDER)
The role of mens rea
Where all elements of the actus reus and the mens rea are proved and there is no defence, there
has been a crime committed
Most (serious) crimes require proof that the defendant had the specified blameworthy state of mind
Court [1989]- demonstrated that the mens rea has a transformative role in criminal law (case of
indecent assault now found in the Sexual Offences Act 2003- defendant pled guilty to assault,
however, given the purpose was to gain sexual gratification, this was chanreckged to indecent
assault)
‘The act constituting a crime may in some circumstances be objectively innocent and take its
criminal colouring entirely from the intent with which it was done’ (Criminal Law: The General Part,
2nd edn., Glanville Williams [1961])
Common terms include intention, recklessness, knowledge, belief, malice, dishonesty (and
negligence)
For example, s1 of the Criminal Damage Act 1971 as relates to destroying and damaging
property requires the mens rea of either intention or recklessness (primary terms)
‘A person who without lawful excuse destroys or damages any property belonging to
another intending to destroy or damage any such property or being reckless as to whether
any such property would be destroyed or damaged shall be guilty of an offence’
Intention concerns aim or purpose (not desire)- Anthony Duff ‘success and failure’ test for
direct intention (upon the result, would D consider what their conduct was to be a success or
failure?)
Does not always work in ‘means to an end’ test (if killing for inheritance, if she died of
natural causes, this would not be a failure)
ACTUS REUS MENS REA
Conduct element Any act (or omission) that causes the result Voluntary
Circumstance The property damaged belongs to another Intention or recklessness
element
Result element Damage or destruction Intention or recklessness
Subjective and objective fault has generated significant debate
G [2003]- reversion back to a subjective test of recklessness from the objective test in Caldwell
[1982]
Two 11 and 12-year-old boys charged with committing arson under s1(1) and (3) of the
Criminal Damage Act 1971
However, this was an accidental action which caused £1 million worth of damage (falsely
believed that the paper that they were lighting would extinguish itself)
, Court of Appeal initially applied an objective test of recklessness without making
concessions for the boys’ lack of maturity and good character
Discussion of the principle of fair labelling
Role of objectivity in jury decisions can inadvertently compromise the notion of a subjective
test (jury more inclined towards making a decision which they believe themselves to be that
of a reasonable person)
Ruled that there was no blameworthy conduct where ‘one genuinely does not perceive the
risk’ (prior objective test ‘is capable of leading to ‘obvious unfairness’ both from a moral and
legal standpoint)
Significant criticism of the objective test as established in Caldwell (see textbook)
The reversion back to the subjective test after 20 years fails to address those cases wrongly
decided over the course of this time (potential point of criticism)
Some serious crimes mix subjectivity with objectivity- eg. rape (under s1 of the Sexual Offences Act
2003- A must not reasonably believe that B consents)
‘Showing mens rea requires only that the prosecutor establish that the defendant had, at the time
of doing the actus reus, the specific mental state toward that actus reus which is required for the
crime. In itself, this is incomplete. Proof of mens rea does not establish that the defendant did
anything that was culpably wrong. In particular, she may avail herself of a variety of justifications or
excuses, thereby, defraying the attribution of fault despite the presence of mens rea’ (Four
Functions of Mens Rea, Chan and Simester [2011])
Can be subject to justifications and excuses
Yip Chiu-Cheung [1995]- undercover agent conspiring with another to smuggle drugs from
Hong Kong to Australia lacked the necessary mens rea of the offence as they had no
intention of committing the crime and thus being a conspirator to the crime
Kingston [1994]- ruled that voluntary intoxication is no defence if mens rea was present, even if the
mens rea was induced by voluntary intoxication
Defendant lured by enemy to his house, where he is drugged and sexually assaults a 15-
year-old boy after being unable to act on his paedophilic tendencies (had never previously
acted on them)- at the time, he acted with the purpose and intention of committing sexual
assault
Differentiation between notions of morality and the mens rea (not his fault that he was
unwittingly drugged and acted on otherwise dormant tendencies, as at the time, he had the
requisite mens rea of intention to commit the sexual assault)
Murder
The role of mens rea
Where all elements of the actus reus and the mens rea are proved and there is no defence, there
has been a crime committed
Most (serious) crimes require proof that the defendant had the specified blameworthy state of mind
Court [1989]- demonstrated that the mens rea has a transformative role in criminal law (case of
indecent assault now found in the Sexual Offences Act 2003- defendant pled guilty to assault,
however, given the purpose was to gain sexual gratification, this was chanreckged to indecent
assault)
‘The act constituting a crime may in some circumstances be objectively innocent and take its
criminal colouring entirely from the intent with which it was done’ (Criminal Law: The General Part,
2nd edn., Glanville Williams [1961])
Common terms include intention, recklessness, knowledge, belief, malice, dishonesty (and
negligence)
For example, s1 of the Criminal Damage Act 1971 as relates to destroying and damaging
property requires the mens rea of either intention or recklessness (primary terms)
‘A person who without lawful excuse destroys or damages any property belonging to
another intending to destroy or damage any such property or being reckless as to whether
any such property would be destroyed or damaged shall be guilty of an offence’
Intention concerns aim or purpose (not desire)- Anthony Duff ‘success and failure’ test for
direct intention (upon the result, would D consider what their conduct was to be a success or
failure?)
Does not always work in ‘means to an end’ test (if killing for inheritance, if she died of
natural causes, this would not be a failure)
ACTUS REUS MENS REA
Conduct element Any act (or omission) that causes the result Voluntary
Circumstance The property damaged belongs to another Intention or recklessness
element
Result element Damage or destruction Intention or recklessness
Subjective and objective fault has generated significant debate
G [2003]- reversion back to a subjective test of recklessness from the objective test in Caldwell
[1982]
Two 11 and 12-year-old boys charged with committing arson under s1(1) and (3) of the
Criminal Damage Act 1971
However, this was an accidental action which caused £1 million worth of damage (falsely
believed that the paper that they were lighting would extinguish itself)
, Court of Appeal initially applied an objective test of recklessness without making
concessions for the boys’ lack of maturity and good character
Discussion of the principle of fair labelling
Role of objectivity in jury decisions can inadvertently compromise the notion of a subjective
test (jury more inclined towards making a decision which they believe themselves to be that
of a reasonable person)
Ruled that there was no blameworthy conduct where ‘one genuinely does not perceive the
risk’ (prior objective test ‘is capable of leading to ‘obvious unfairness’ both from a moral and
legal standpoint)
Significant criticism of the objective test as established in Caldwell (see textbook)
The reversion back to the subjective test after 20 years fails to address those cases wrongly
decided over the course of this time (potential point of criticism)
Some serious crimes mix subjectivity with objectivity- eg. rape (under s1 of the Sexual Offences Act
2003- A must not reasonably believe that B consents)
‘Showing mens rea requires only that the prosecutor establish that the defendant had, at the time
of doing the actus reus, the specific mental state toward that actus reus which is required for the
crime. In itself, this is incomplete. Proof of mens rea does not establish that the defendant did
anything that was culpably wrong. In particular, she may avail herself of a variety of justifications or
excuses, thereby, defraying the attribution of fault despite the presence of mens rea’ (Four
Functions of Mens Rea, Chan and Simester [2011])
Can be subject to justifications and excuses
Yip Chiu-Cheung [1995]- undercover agent conspiring with another to smuggle drugs from
Hong Kong to Australia lacked the necessary mens rea of the offence as they had no
intention of committing the crime and thus being a conspirator to the crime
Kingston [1994]- ruled that voluntary intoxication is no defence if mens rea was present, even if the
mens rea was induced by voluntary intoxication
Defendant lured by enemy to his house, where he is drugged and sexually assaults a 15-
year-old boy after being unable to act on his paedophilic tendencies (had never previously
acted on them)- at the time, he acted with the purpose and intention of committing sexual
assault
Differentiation between notions of morality and the mens rea (not his fault that he was
unwittingly drugged and acted on otherwise dormant tendencies, as at the time, he had the
requisite mens rea of intention to commit the sexual assault)
Murder
