Mens rea – introduction.
Mens rea is the mental element of a crime: ‘guilty mind’.
It is the state of mind D must have had at the time of the crime in order to be guilty
of the offence.
Actus reus + mens rea + no defence = criminal liability.
Mens rea determines the blameworthiness of the offence:
D1 shoots V1 intending to cause death. V1 dies.
D2 shoots at a target. V2 is hiding behind the target, unbeknown to D2.
V2 dies.
It is D1’s state of mind – intention to cause death – that renders
blameworthiness.
Mens rea concerns legal blameworthiness, not moral blameworthiness.
- Yip Chiu-Cheung v The Queen (1995) 1 AC 111 – police officer found to
have conspired with another for the transportation of drugs.
D must have the required state of mind to carry out the act outlined in the offence. It
does not require an intention to knowingly carry out a criminal offence. (D does not
have to know that the act is illegal).
- R v Esop (1836) 173 E.R. 203 – D charged with a sexual offence on a ship
in the English seas. In his own country, the act was legal, but was charged
with sexual assault as he was in England, even though he didn’t know it was a
crime.
Mens rea differs according to the offence:
o Murder: an intention to kill or cause grievous bodily harm (R v Cunningham
1982) (R v Moloney 1985).
o Criminal damage: intending to destroy or damage [property belonging to
another] or being reckless as to whether any such property would be
destroyed or damages (s.1 Criminal Damage Act 1971)
o Rape: A intentionally penetrates the vagina, anus or mouth of another (B) with
his penis…A does not reasonably believe that B consents (S.1 Sexual
Offences Act 2003).
The types of mens rea present in English law:
- Intention.
- Recklessness
- Knowledge
- Belief
- Negligence
- Dishonesty
- The doctrine of transferred malice.
, Mens rea – direct intention.
Different types of intention:
- Direct intention. Our focus.
- Indirect/oblique intention.
- Basic intent. Intoxication.
- Specific intent.
- Ulterior intent. Offences that require more than one
element of mens rea.
Intention is not the same as motive – someone may have a good motive of
doing an act but is still guilty of the mens rea.
- R v Cox (1992) – D (doctor) gives V (patient) a lethal injection with families
support to bring an end to her pain as she was terminally ill. D had intended
to kill V even with good motive to do so, and was convicted of attempted
murder as the courts could not prove whether the injection was the thing that
killed V.
In some cases the courts seem to have interpreted intention narrowly in order to
ensure that certain defendants are not prosecuted.
- R v Steane (1947) – D was in Germany when war broke out and was told he
should broadcast propaganda of the enemy, or he and his family would be put
in a concentration camp. His motive was to save his family but on his release
was charged with assisting the enemy. Courts held that D intended to assist
his family, not the enemy.
o It is argued by Ormerod (author of textbooks) that it would have been
more consistent to charge D with intending to assist the enemy but
given the defence of duress.
Motive can be used a form of evidence to aid a police officer investigation but will
not be enough as a defence in court.
Some cases, however, require us to investigate motive as it is incorporated into the
offence itself as an aggravating factor.
- Section 28(1)(a) Crime and Disorder Act 1998 defines a racially
aggravated offence as one motivated wholly or partly by hostility towards
members of a racial or religious group.
Juries may decide a stereotypically ‘good’ motive is still mad e.g., in mercy killing
cases.
Intention and premeditation are not the same thing – D can spontaneously
form the mens rea (intention) of a crime as they are committing the act.
Intention and foresight are also not the same thing – where D’s purpose is to kill, it
does not matter that he thought he was unlikely to succeed.
- Where D’s primary purpose is unclear/does not relate to killing…foresight of
death (however high) is only evidence from which the jury might find
intention.
Lord Scarman said in Hancock and Shankland (1986).
“Probability, however high, of a consequence is only a factor in
determining mens rea”.
‘Golden rule’ = to give intention its ordinary meaning.
- Lord Bridge, R v Moloney (1985) AC 905: “The golden rule should be
that…the judge should avoid any elaboration or paraphrase of what is meant
by intent and leave it to the jury’s good sense to decide whether the accused
acted with the necessary intent”.
‘Ordinary’ meaning = D’s aim or purpose – this is not the same as want or desire.
Mens rea is the mental element of a crime: ‘guilty mind’.
It is the state of mind D must have had at the time of the crime in order to be guilty
of the offence.
Actus reus + mens rea + no defence = criminal liability.
Mens rea determines the blameworthiness of the offence:
D1 shoots V1 intending to cause death. V1 dies.
D2 shoots at a target. V2 is hiding behind the target, unbeknown to D2.
V2 dies.
It is D1’s state of mind – intention to cause death – that renders
blameworthiness.
Mens rea concerns legal blameworthiness, not moral blameworthiness.
- Yip Chiu-Cheung v The Queen (1995) 1 AC 111 – police officer found to
have conspired with another for the transportation of drugs.
D must have the required state of mind to carry out the act outlined in the offence. It
does not require an intention to knowingly carry out a criminal offence. (D does not
have to know that the act is illegal).
- R v Esop (1836) 173 E.R. 203 – D charged with a sexual offence on a ship
in the English seas. In his own country, the act was legal, but was charged
with sexual assault as he was in England, even though he didn’t know it was a
crime.
Mens rea differs according to the offence:
o Murder: an intention to kill or cause grievous bodily harm (R v Cunningham
1982) (R v Moloney 1985).
o Criminal damage: intending to destroy or damage [property belonging to
another] or being reckless as to whether any such property would be
destroyed or damages (s.1 Criminal Damage Act 1971)
o Rape: A intentionally penetrates the vagina, anus or mouth of another (B) with
his penis…A does not reasonably believe that B consents (S.1 Sexual
Offences Act 2003).
The types of mens rea present in English law:
- Intention.
- Recklessness
- Knowledge
- Belief
- Negligence
- Dishonesty
- The doctrine of transferred malice.
, Mens rea – direct intention.
Different types of intention:
- Direct intention. Our focus.
- Indirect/oblique intention.
- Basic intent. Intoxication.
- Specific intent.
- Ulterior intent. Offences that require more than one
element of mens rea.
Intention is not the same as motive – someone may have a good motive of
doing an act but is still guilty of the mens rea.
- R v Cox (1992) – D (doctor) gives V (patient) a lethal injection with families
support to bring an end to her pain as she was terminally ill. D had intended
to kill V even with good motive to do so, and was convicted of attempted
murder as the courts could not prove whether the injection was the thing that
killed V.
In some cases the courts seem to have interpreted intention narrowly in order to
ensure that certain defendants are not prosecuted.
- R v Steane (1947) – D was in Germany when war broke out and was told he
should broadcast propaganda of the enemy, or he and his family would be put
in a concentration camp. His motive was to save his family but on his release
was charged with assisting the enemy. Courts held that D intended to assist
his family, not the enemy.
o It is argued by Ormerod (author of textbooks) that it would have been
more consistent to charge D with intending to assist the enemy but
given the defence of duress.
Motive can be used a form of evidence to aid a police officer investigation but will
not be enough as a defence in court.
Some cases, however, require us to investigate motive as it is incorporated into the
offence itself as an aggravating factor.
- Section 28(1)(a) Crime and Disorder Act 1998 defines a racially
aggravated offence as one motivated wholly or partly by hostility towards
members of a racial or religious group.
Juries may decide a stereotypically ‘good’ motive is still mad e.g., in mercy killing
cases.
Intention and premeditation are not the same thing – D can spontaneously
form the mens rea (intention) of a crime as they are committing the act.
Intention and foresight are also not the same thing – where D’s purpose is to kill, it
does not matter that he thought he was unlikely to succeed.
- Where D’s primary purpose is unclear/does not relate to killing…foresight of
death (however high) is only evidence from which the jury might find
intention.
Lord Scarman said in Hancock and Shankland (1986).
“Probability, however high, of a consequence is only a factor in
determining mens rea”.
‘Golden rule’ = to give intention its ordinary meaning.
- Lord Bridge, R v Moloney (1985) AC 905: “The golden rule should be
that…the judge should avoid any elaboration or paraphrase of what is meant
by intent and leave it to the jury’s good sense to decide whether the accused
acted with the necessary intent”.
‘Ordinary’ meaning = D’s aim or purpose – this is not the same as want or desire.
