CRIMINAL LAW
MENS REA – INTENTION, MOTIVE and TRANSFERRED MALICE
Establishing Criminal Liability
Crime = Actus Reus + Mens Rea
NB - A person may be convicted on the basis of having committed the Actus Reus alone if it
is a Strict Liability offence (no need to prove mens rea)
Mens Rea
Definition of Mens Rea:
Mens Rea is the legal term used to describe the element of the criminal law that relates to
the defendant’s mental state.
Each offence consists of a prohibited act or omission coupled with whatever state of
mind is called for by the statute or rule of the common law which creates the offence.
In those offences which are not absolute the state of mind which the prosecution
must prove to have underlain the act or omission – the ‘mental element’ – will in the
majority of cases be such as to attract disapproval. The mental element will then be
the mark of what may properly be called a ‘guilty mind’.
Lord Mustill, R v Kingston [1994] 3 WLR 519
Subjective and Objective Fault:
According to Smith and Hogan’s Criminal Law (14 th Edition) page 114:
Subjective fault requires proof that D has personal awareness of his actions and is cognizant
of the relevant circumstances and consequences comprising the actus reus of the offence.
Objective fault requires only that a reasonable person would have been aware of the
relevant circumstances/consequences comprising the actus reus, irrespective of whether the
D himself was aware of them.
1
, Types of Mens Rea:
There are varying types of mens rea; we will consider:
Intention
Recklessness
Negligence
Knowledge and Belief
Possession
Different crimes have different mens rea requirements.
2
MENS REA – INTENTION, MOTIVE and TRANSFERRED MALICE
Establishing Criminal Liability
Crime = Actus Reus + Mens Rea
NB - A person may be convicted on the basis of having committed the Actus Reus alone if it
is a Strict Liability offence (no need to prove mens rea)
Mens Rea
Definition of Mens Rea:
Mens Rea is the legal term used to describe the element of the criminal law that relates to
the defendant’s mental state.
Each offence consists of a prohibited act or omission coupled with whatever state of
mind is called for by the statute or rule of the common law which creates the offence.
In those offences which are not absolute the state of mind which the prosecution
must prove to have underlain the act or omission – the ‘mental element’ – will in the
majority of cases be such as to attract disapproval. The mental element will then be
the mark of what may properly be called a ‘guilty mind’.
Lord Mustill, R v Kingston [1994] 3 WLR 519
Subjective and Objective Fault:
According to Smith and Hogan’s Criminal Law (14 th Edition) page 114:
Subjective fault requires proof that D has personal awareness of his actions and is cognizant
of the relevant circumstances and consequences comprising the actus reus of the offence.
Objective fault requires only that a reasonable person would have been aware of the
relevant circumstances/consequences comprising the actus reus, irrespective of whether the
D himself was aware of them.
1
, Types of Mens Rea:
There are varying types of mens rea; we will consider:
Intention
Recklessness
Negligence
Knowledge and Belief
Possession
Different crimes have different mens rea requirements.
2
