MENS REA – INTENTION, MOTIVE and TRANSFERRED MALICE
Establishing Criminal Liability
Crime = Actus Reus + Mens Rea (minus a defence)
Three things have to be established beyond reasonable doubt to the jury by the prosecution in any
criminal trial:
1) That the defendant brought about the prohibited act, omission or state of affairs. This is called
the ‘actus reus’.
2) That the defendant did this with the state of mind prescribed by the definition of the crime.
This is called the ‘mens rea’ and
3) That the defendant is not entitled to the benefit of any defence which may have been argued
on his behalf.
These three points are encapsulated in the Latin maxim:
Actus Non Facit Reum, Nisi Mens Sit Rea – An act does not make a person guilty of committing
an offence unless the mind is legally blameworthy.
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).
Subjective fault – what was the D thinking when he committed the act?
Objective fault – What should the D have been thinking when he committed the act? – What would the
reasonable person consider?
Convicted of rape – not consenting (subjective test) or didn’t have a reasonable belief of consent.
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. Different crimes have different mens rea requirements etc. MR of Murder:
Intention to kill or cause GB or MR of Battery: Intention or Recklessness as to infliction of force
There are varying types of Mens Rea; we will consider:
Intention
Recklessness
Negligence
Knowledge and Belief
Possession
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