Detailed notes on this element of the criminal law. In-depth explanation of concepts and reference to cases throughout. Useful for coursework/assignments and revision for exams.
Mens rea is the legal term used to describe the element of the criminal law that relates to the
defendants mental state. Diferent crimes have diferent mens rea requirements.
The burden of proving mens rea is on the prosecuton. Mens rea is something that has
to be proved, just like each element of the actus reus.
The mens rea of a crime is not ‘intentonn or ‘recklessnessn, but intenton to bring about
some result, or recklessness about a consequence, and so on. What has to be intended
or foreseen depends on how the crime is defned.
How is mens rea proved?
We are concerned with what has to be proved, not how.
Do not become distracted by the queston of how the prosecuton can prove what D was
thinking. The jury can infer what D was thinking from the evidence
It is generally thought that intenton is the most serious kind of mens rea, reckless the next
most serious, and negligence the least serious.
Subjectvism and objectvism
Mens rea is ofen classifed as being either subjectve or objectve.
Any mens rea which is assessed subjectvely is assessed by the fact-fnder (the jury or
magistrates) according to what D was thinking at the tme of the actus reus.
An objectve mens rea is one which considers what a reasonable person would have
thought. So, if D did not realise their act might harm V, but a reasonable person in their
shoes would have done, D may be found to have an objectve mens rea, even if they did
not have a subjectve mens rea.
Which mens rea words are assessed subjectvely and which are assessed objectvely?
Subjectvely
Intenton (Moloney [1985])
Recklessness (Cunningham [1957], R v G [2004])
Objectvely
Negligence, including gross negligence (Adomako [1994])
, Criminal Law
How to explain subjectve and subjectve states of mind
Subjectve (the exact term to be used will Objectve (the exact term to be used will
depend on the mens rea of the crime) depend on the mens rea of the crime)
Did D intend the result? Did D realise, Should D have thought about the
recognise, want, or aim to achieve the result? consequences of his acts? Would a reasonable
Did D foresee the result? person have thought about what might
happen, and is D at fault for not thinking about
it?
Note: express it from Dns point of view. It is Note: express it from the reasonable personns
not OK to say D should have thought about... point of view. It is OK to say D should have
thought about...
Intenton
Direct intent
The House of Lords in Moloney [1985] stated that in most cases the jury should simply be told
that intenton should be given its normal meaning and the judge should not try and defne the
term. The normal meaning of intenton is generally taken to mean a result which the defendant
wanted or aimed to produce (Mohan (1985)). In legal writng it is ofen known as direct
intenton.
Indirect intent
There are cases of so-called indirect intenton (oblique intent). This is where, although the
defendant did not want or aim to produce it, they did foresee the result as very likely to occur
as a result of their actons. The courts have accepted that in some cases of indirect intent the
jury is permited to defne intent.
The degree of foresight;
Case/Statute Key point
DPP v Smith [1961] D is presumed to intend or foresee the natural
consequences of his actons
Criminal Justce Act 1967 s8 Repealed the decision in Smith (above). The
jury is not bound in law to infer intent or
foresight, but is to draw inferences from the
evidence.
Hyam [1975] The mens rea for murder is satsfed if D knew
death or serious harm was highly probable.
Moloney [1985] Intent could be inferred where the defendant
foresaw the consequence as a natural
consequence of his act.
Hancock and Shankland [1986] The greater the probability of a consequence
the more likely it was that the consequence
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