MENS REA: THE MENTAL ELEMENT

MENS REA: THE MENTAL ELEMENT

CENTRAL ISSUES

One. A defendant is taken to have intended a result if it was her or his aim or purpose. If the result was foreseen as virtually certain to occur as a result of the defendant's actions, and the defendant realized this, then the jury are entitled to find that the defendant intended the result.

Two. Defendants will be found to be reckless if they appreciated that because of their actions there was a chance that the result might occur, and it was unreasonable for them to act as they did.

PART ONE: THE LAW

One. THE MEANING OF MENS REA

Mens rea is the legal term used to describe the element of a criminal offence that relates to the defendant's mental state. Those who suffer from Latin-phobia may prefer the phrase 'the mental element of the crime'. Different crimes have different mentes reae: some require intention, others recklessness, negligence, or knowledge. Some crimes do not require proof

Three. A defendant will be negligent if he or she behaved in a way that a reasonable person would not. It is rare for negligence to be sufficient mens rea for a serious criminal offence.

Four. If a defendant is voluntarily intoxicated when committing an offence, then generally he or she will be found to have been reckless. If the defendant, even though intoxicated, intended the result, then the jury should find that there was intention.

of any mental state of the defendant. These are known as strict liability offences and will be discussed in Chapter Four.

It has often been suggested that mens rea plays the crucial role of ensuring that only blameworthy defendants are punished for their crimes. Someone who causes another's death by an unforeseeable accident does not deserve punishment; someone who causes another's death intentionally does. However, in assessing a defendant's blameworthiness his or her state of mind is only part of the picture. A mercy killer and a contract killer may both intend to kill, but most people would not regard their actions as equally wicked. Indeed, the existence of defences such as duress or self-defence demonstrate that mens rea is not by any means the law's sole criterion for determining blameworthiness. Also the courts have made it quite clear that mens rea is not equivalent to moral guilt. In Yip Chiu-Cheung a police officer, as part of an undercover operation, pretended to be a drug dealer and agreed with a drug baron to import drugs. The Privy Council confirmed that the police officer had the mens rea for a conspiracy to import drugs. In moral terms his behaviour was not blameworthy (some would even say it was commendable), but in the eyes of the law he had the mens rea for the conspiracy because he agreed to import drugs.

This chapter will consider the following concepts that are used throughout criminal law: (a) intention, (b) recklessness, (c) negligence, and (d) knowledge. These are not the only kinds of mens rea. Others will be discussed elsewhere in the book in the context of specific offences. For example, dishonesty will be discussed when we consider property offences. Which mens rea is required depends on the particular offence. For example, murder requires proof that the defendant intended death or grievous bodily harm, while criminal damage requires proof that the defendant was reckless as to whether the property belonging to another would be damaged. Occasionally an offence will have a different mens rea in respect of different aspects of the actus reus. For example, in rape the defendant must intend to commit sexual intercourse, but need only be reckless as to whether the victim was not consenting.

As a general rule intention is seen as the worst kind of mens rea, recklessness the next worst, and negligence the least serious. Therefore these concepts will be discussed in that order.