Mens Rea
Introducing Mens Rea
Criminal liability requires mens rea.
Translation – ‘guilty mind’, but this is misleading.
To have relevant mens rea, the defendant doesn’t need to feel guilty (not to
do with emotional state), nor do they need to see what they have done as
wrongful.
Mens rea is not the same as motive.
Not about whether you are a good or bad person.
It is about whether you are responsible for doing or causing something that is
prohibited by the criminal law.
Each criminal offence will have mens rea elements in it.
Why is mens rea important?
Blameworthiness.
Only appropriate and justifiable to sanction and punish someone if
they are blameworthy.
If they are in some sense morally responsible for the harm that they
have caused for the prohibited action or consequence they have
caused.
Autonomy.
In a liberal society, autonomy is a foundational principle.
We only punish people who have willingly, in some sense, made a
choice to engage in wrongdoing.
Autonomy is about freedom.
It wouldn’t be fair to punish someone for something they had
no control over.
Effectiveness of punishment.
Presumption of Mens Rea
Voluntariness requirement.
The defendant has to have been physically in control of their actions.
Driving without insurance has no mens rea requirement, but still has a
voluntariness requirement.
Minimum level of mens rea that attaches to all criminal offences.
Presumption of mens rea – statutory interpretation.
Sometimes statutes set out what the mens rea requirements are.
Sometimes a statutory offence will be explicit and clear that there are
no mens rea requirements – strict liability offence.
Sometimes it won’t be entirely clear, so the statutory offence won’t
explicitly spell out any particular mens rea requirements, but also
won’t explicitly say that it is a strict liability offence that doesn’t
require mens rea.
Court would have to presume that the offence requires mens
rea if unclear from the statute.
That presumption can be rebutted.
o Sweet v Parsley (1970) – House of Lords.
, o B (A Minor) v DPP (2000) – House of Lords.
o Gammon Ltd v Attorney General of Hong Kong (1985) –
Privy Council.
Strict Liability
Volume of offences.
There is a huge volume of strict liability offences in English and Welsh law.
Research in 2000 estimated that there were about 8000 offences in
English law at that time.
This has since increased, especially as there are now more criminal
offences in general.
Strict liability offences are not rare.
Types of offences.
Regulatory offences.
Offences concerned with the maintenance of certain standards.
About public safety.
Offences that are likely to be committed by businesses, rather than
individuals.
Food safety.
Consumer protection.
Health and safety at work.
Manufacturing standards.
Environment.
Driving offences.
Tend to be less serious offences.
Quasi-criminal offences.
Offence of possession of an indecent photograph of a child.
Doesn’t matter if you realised what it was of, or that you knew it was
in your possession.
The fact of having that image in your possession is enough to be guilty
of that offence.
Offence of rape of a child under 13.
Need to show that physical actions were voluntary and intentional,
but do not need to show any mens rea in relation to the victim’s age.
Defences.
Due diligence defence.
The defendant can escape liability if they show that they have done
everything they could, they’ve taken all reasonable steps to avoid the
prohibited result coming about.
Shifting of burden of proof to the defendant, to show that, in
fact, they’ve done everything in their power to stop the
prohibitive result coming about.
Prosecution doesn’t need to prove any mens rea.
Enforcement and sentencing.
, Lower level regulatory offences.
Emphasis on compliance and encouraging businesses to adhere to
certain standards.
Enforcement agencies tend to initially use administrative remedies.
Improvement notices.
Criminal prosecution is a last resort.
Sentences tend to be low-level.
Imprisonment is unlikely.
Most likely to be fines.
Light-touch approach for businesses who may actually be causing
detrimental harm.
Harsher sentencing for harsher crimes.
Instrumental considerations:
Public protection.
Shouldn’t the public always be protected?
Deterrence/raising standards.
Protect consumers.
Protect employees.
Protect environment.
Encouraging drivers to take the utmost care to protect other drivers.
Is this not true of other criminal offences – aim to deter?
Efficiency.
If prosecution only need to prove actus reus elements, and not mens
rea, it is much easier for them to prove that someone is guilty of an
offence.
Those prosecutions are less likely to be contested, and less likely to go
to trial.
Convict people more easily to save money.
Is this not true of all criminal offences?
Would be much easier in general to convict people of crimes if
mens rea was not required.
Moral considerations of using mens rea:
Protecting autonomy.
Ensuring the punishment serves a purpose.
Mens Rea Concepts
Introducing Mens Rea
Criminal liability requires mens rea.
Translation – ‘guilty mind’, but this is misleading.
To have relevant mens rea, the defendant doesn’t need to feel guilty (not to
do with emotional state), nor do they need to see what they have done as
wrongful.
Mens rea is not the same as motive.
Not about whether you are a good or bad person.
It is about whether you are responsible for doing or causing something that is
prohibited by the criminal law.
Each criminal offence will have mens rea elements in it.
Why is mens rea important?
Blameworthiness.
Only appropriate and justifiable to sanction and punish someone if
they are blameworthy.
If they are in some sense morally responsible for the harm that they
have caused for the prohibited action or consequence they have
caused.
Autonomy.
In a liberal society, autonomy is a foundational principle.
We only punish people who have willingly, in some sense, made a
choice to engage in wrongdoing.
Autonomy is about freedom.
It wouldn’t be fair to punish someone for something they had
no control over.
Effectiveness of punishment.
Presumption of Mens Rea
Voluntariness requirement.
The defendant has to have been physically in control of their actions.
Driving without insurance has no mens rea requirement, but still has a
voluntariness requirement.
Minimum level of mens rea that attaches to all criminal offences.
Presumption of mens rea – statutory interpretation.
Sometimes statutes set out what the mens rea requirements are.
Sometimes a statutory offence will be explicit and clear that there are
no mens rea requirements – strict liability offence.
Sometimes it won’t be entirely clear, so the statutory offence won’t
explicitly spell out any particular mens rea requirements, but also
won’t explicitly say that it is a strict liability offence that doesn’t
require mens rea.
Court would have to presume that the offence requires mens
rea if unclear from the statute.
That presumption can be rebutted.
o Sweet v Parsley (1970) – House of Lords.
, o B (A Minor) v DPP (2000) – House of Lords.
o Gammon Ltd v Attorney General of Hong Kong (1985) –
Privy Council.
Strict Liability
Volume of offences.
There is a huge volume of strict liability offences in English and Welsh law.
Research in 2000 estimated that there were about 8000 offences in
English law at that time.
This has since increased, especially as there are now more criminal
offences in general.
Strict liability offences are not rare.
Types of offences.
Regulatory offences.
Offences concerned with the maintenance of certain standards.
About public safety.
Offences that are likely to be committed by businesses, rather than
individuals.
Food safety.
Consumer protection.
Health and safety at work.
Manufacturing standards.
Environment.
Driving offences.
Tend to be less serious offences.
Quasi-criminal offences.
Offence of possession of an indecent photograph of a child.
Doesn’t matter if you realised what it was of, or that you knew it was
in your possession.
The fact of having that image in your possession is enough to be guilty
of that offence.
Offence of rape of a child under 13.
Need to show that physical actions were voluntary and intentional,
but do not need to show any mens rea in relation to the victim’s age.
Defences.
Due diligence defence.
The defendant can escape liability if they show that they have done
everything they could, they’ve taken all reasonable steps to avoid the
prohibited result coming about.
Shifting of burden of proof to the defendant, to show that, in
fact, they’ve done everything in their power to stop the
prohibitive result coming about.
Prosecution doesn’t need to prove any mens rea.
Enforcement and sentencing.
, Lower level regulatory offences.
Emphasis on compliance and encouraging businesses to adhere to
certain standards.
Enforcement agencies tend to initially use administrative remedies.
Improvement notices.
Criminal prosecution is a last resort.
Sentences tend to be low-level.
Imprisonment is unlikely.
Most likely to be fines.
Light-touch approach for businesses who may actually be causing
detrimental harm.
Harsher sentencing for harsher crimes.
Instrumental considerations:
Public protection.
Shouldn’t the public always be protected?
Deterrence/raising standards.
Protect consumers.
Protect employees.
Protect environment.
Encouraging drivers to take the utmost care to protect other drivers.
Is this not true of other criminal offences – aim to deter?
Efficiency.
If prosecution only need to prove actus reus elements, and not mens
rea, it is much easier for them to prove that someone is guilty of an
offence.
Those prosecutions are less likely to be contested, and less likely to go
to trial.
Convict people more easily to save money.
Is this not true of all criminal offences?
Would be much easier in general to convict people of crimes if
mens rea was not required.
Moral considerations of using mens rea:
Protecting autonomy.
Ensuring the punishment serves a purpose.
Mens Rea Concepts
