Week 7 tutorial: Mens rea – intention
Mens rea is loosely translated as ‘guilty mind’. The mens rea focuses on what is going on in D’s
mind (internal elements).
Identifying mens rea elements:
• Subjective mens rea: the term subjective is used to indicate a mens rea requirement that is
looking to the mind of the individual D: something that is internal. Our focus is the mind of D.
• Objective mens rea: the term objective is used to indicate a requirement that is not looking
within the mind of D, it is looking externally, but is still concerned with D’s state of mind in general
terms, and is still analysed as part of the mens rea. The prosecution must show that D’s conduct
dropped below the standard expected of a reasonable person in her position.
There are two categories of offences where mens rea will not correspond with every element of the
actus reus.
Strict liability: actus reus with no corresponding mens rea
A) Strict or ‘absolute’ liability ‘offences’: the only fault element is that D’s acts must be
voluntary, but beyond this no mens rea is requires as to any other element of the offence. Such
offences are usually dealing with regulatory matters. e.g D selling defective products or failing
to observe regulatory formalities in her business.
B) Strict liability elements: When mens rea is not require as to an element of the actus, it is said
that liability for that element is strict. Strict liability remains problematic: liability is still possible
in the absence of choice as to an essential part of what D is being blamed.
Ulterior mens rea: Mens rea without corresponding acts reus: When we see ulterior mens rea
within offences, the mens rea standard that is invariably required is intention. However, this is not
always the case.
The test for voluntariness
This test is simply whether D had control over her movement, or omission at the time of acting. In
criminal law there is an established presumption that D is acting voluntarily. Rather than the
prosecution having prove that D’s conduct was voluntary in every case, it will be presumed that D’s
conduct was voluntary unless D can produce evidence to suggest that is was not. It is only when D
has discharged this evidential burden of the proof that the prosecution will have to prove beyond
reasonable doubt that D’s acts were in fact voluntary. Liability will fail because D has not acted
voluntarily unless the reason for her lack of control was self-induced (e.g intoxication)
Mens rea terms
A) Mens rea terms are interpreted consistently between offences: The general rule is that
each mens rea terms can be defined independently of the offence in which it arises. There is
one definition for every term (intention, knowledge, etc) and every time any offence uses those
terms that same definition is the one to apply. The meaning of the mens rea terms does not
change upon the offence context.
B) The criminal law is concerned with the legal definition of mens rea terms: the definitions
distinguish criminal from non-criminal conduct and make the difference in serious offences
between prison or liberty.
C) Mens rea terms are (for better and for worse) by the common law: the definition of mens
rea is not fixed, but rather a matter of precedent between the courts. Definitions have changed
over time and are not settled in their present state. There is no a fixed list of mens rea terms.
Intention: it demonstrates the greatest culpability and blameworthiness.
• Direct intention: D intends something in law if she acts with the purpose or aim towards it. If the
actus reus requirement is a circumstance element(that property belongs to another), D intends it
directly where she acts with the purpose or aim that it should be present. Where the actus reus
Mens rea is loosely translated as ‘guilty mind’. The mens rea focuses on what is going on in D’s
mind (internal elements).
Identifying mens rea elements:
• Subjective mens rea: the term subjective is used to indicate a mens rea requirement that is
looking to the mind of the individual D: something that is internal. Our focus is the mind of D.
• Objective mens rea: the term objective is used to indicate a requirement that is not looking
within the mind of D, it is looking externally, but is still concerned with D’s state of mind in general
terms, and is still analysed as part of the mens rea. The prosecution must show that D’s conduct
dropped below the standard expected of a reasonable person in her position.
There are two categories of offences where mens rea will not correspond with every element of the
actus reus.
Strict liability: actus reus with no corresponding mens rea
A) Strict or ‘absolute’ liability ‘offences’: the only fault element is that D’s acts must be
voluntary, but beyond this no mens rea is requires as to any other element of the offence. Such
offences are usually dealing with regulatory matters. e.g D selling defective products or failing
to observe regulatory formalities in her business.
B) Strict liability elements: When mens rea is not require as to an element of the actus, it is said
that liability for that element is strict. Strict liability remains problematic: liability is still possible
in the absence of choice as to an essential part of what D is being blamed.
Ulterior mens rea: Mens rea without corresponding acts reus: When we see ulterior mens rea
within offences, the mens rea standard that is invariably required is intention. However, this is not
always the case.
The test for voluntariness
This test is simply whether D had control over her movement, or omission at the time of acting. In
criminal law there is an established presumption that D is acting voluntarily. Rather than the
prosecution having prove that D’s conduct was voluntary in every case, it will be presumed that D’s
conduct was voluntary unless D can produce evidence to suggest that is was not. It is only when D
has discharged this evidential burden of the proof that the prosecution will have to prove beyond
reasonable doubt that D’s acts were in fact voluntary. Liability will fail because D has not acted
voluntarily unless the reason for her lack of control was self-induced (e.g intoxication)
Mens rea terms
A) Mens rea terms are interpreted consistently between offences: The general rule is that
each mens rea terms can be defined independently of the offence in which it arises. There is
one definition for every term (intention, knowledge, etc) and every time any offence uses those
terms that same definition is the one to apply. The meaning of the mens rea terms does not
change upon the offence context.
B) The criminal law is concerned with the legal definition of mens rea terms: the definitions
distinguish criminal from non-criminal conduct and make the difference in serious offences
between prison or liberty.
C) Mens rea terms are (for better and for worse) by the common law: the definition of mens
rea is not fixed, but rather a matter of precedent between the courts. Definitions have changed
over time and are not settled in their present state. There is no a fixed list of mens rea terms.
Intention: it demonstrates the greatest culpability and blameworthiness.
• Direct intention: D intends something in law if she acts with the purpose or aim towards it. If the
actus reus requirement is a circumstance element(that property belongs to another), D intends it
directly where she acts with the purpose or aim that it should be present. Where the actus reus
