Introduction
In Britain and other common law jurisdictions there is a saying that, actus non facit reum, nisi mens sit rea[1] “an act does not make a person guilty unless the mind be also guilty.” In other words, simply doing something will not, in general, make a person a criminal unless their intent was to do, or cause, a criminal act. It is this intention which often establishes mens rea (literally the ‘guilty mind’) and turns the act into a crime.
Mens rea
Mens rea means a mental state, in which a person deliberately violates a law. Thus mens rea means intention to do the prohibited act. These are known as mental elements in criminal liability. Therefore an act in order to be a crime must be committed with a guilty mind, Actus non facit reum nisi mens sit rea, is a well know principle of natural justice meaning no person could be punished in a proceeding of criminal nature unless it can be shown that he had a guilty mind.
Concept
In justice concept, Actus Reus represents the physical aspect of crime and Mens Rea the mental aspect, which must be criminal and co-operate with the former. Actus reus has been defined as such result of human conduct as the law seeks to prevent. Mens rea which is a technical term generally taken to mean some blameworthy mental condition or mind at fault, covers a wide range of mental states and conditions the existence of which would give a criminal hue to actus reus. No act is per seen criminal; it becomes criminal only when the actor does it with guilty mind.
There are three states of mind which separately or together can constitute the necessary mens rea for a criminal offence. These are:
- Intention,
- Recklessness, and
- Negligence.
- Intention[2]
Two types of intentions:
Direct intent (Purpose intent) – It is the typical situation where the consequences of a person’s actions are desired.
ü Basic means direct intention – no lesser forms of punishment.
Oblique intent (Foresight intent) – It covers the situation where the consequence is foreseen by the defendant as virtually certain, although it is not desired for its own sake, and the defendant goes ahead with his actions anyway.
ü Specific means a parson can foresee that there is damage – can be decrease punishment.
Example
An aero plane owner decides to make a fraudulent insurance claim on one of his planes.
a) He plants a bomb on it knowing that when it explodes, some passengers will certainly die but he does not mind and wants this to happen as it will make his claim more realistic. This is direct intention – the consequences of his actions (the death of the passengers) are desired.
b) Alternatively he knows that some passengers will certainly die, although he can honestly say that he does not want them to die, and would be delighted if they all survived! This is oblique intent – the consequences (the death of passengers) were not what he planned, but he nevertheless knew that they would inevitably follow from his actions in blowing up the plane.
v R v Moloney (1985)
The defendant and his stepfather drank a large quantity of alcohol at a dinner party. A few hours later they had a discussion about firearms, and had a shooting contest to see who could load and fire a shotgun faster. The defendant, who was unaware the gun was pointing at the victim, did this and killed his stepfather. Defendant was charged with murder.
Held: on appeal the House of Lords quashed the murder conviction and substituted a verdict of manslaughter, on the ground that only intent to kill or cause really serious injury would be sufficient mens rea for murder.
v R v Hancock and Shankland [1986]
Striking miners threw a concrete block from a bridge onto a road, where it killed a taxi driver.
Held: on appeal a verdict of manslaughter was substituted by the House of Lords who reaffirmed that the prosecution has to establish an intention to kill or do grievous bodily harm on the part of the defendant.
v R v Woolling [1998]
The defendant lost his temper and threw his three months old son on to a hard surface. His son sustained a fractured skull and died. Woolling was charged with murder. He refused that he had intention to cause serious harm.
House of Lord held: having regard to the mental element in murder, a jury was required to determine whether the defendant had intended to kill or do serious bodily harm. The conviction for murder was quashed and conviction for manslaughter substituted.
- Recklessness[3]
Recklessness is the taking of an unjustified risk. However, two different tests have been developed by the courts, the result of which is that recklessness now has two different legal meanings which apply to different offences.
- Subjective test
The defendant knows that the risk or willing to take it and takes it deliberately. The question that must be asked is “was the risk in the defendant’s mind at the time the crime was committed?” This test was established in:
v R v Cunningham [1957]
The defendant had broken a gas meter to steal the money in it with the result that gas escaped into the next-door house. The victim became ill and her life was endangered. The defendant was charged under s23 of the Offences Against the Person Act 1861 with “maliciously administering a noxious thing so as to endanger life”.
Court of Appeal held: that for a defendant to have acted “maliciously” there had to be proof that he intended to cause the harm in question, or had been reckless as to whether such harm would be caused. In this context recklessness involved the defendant in being aware of the risk that his actions might cause the prohibited consequence.
- Objective test
The risk must be obvious to the reasonable man, in that any reasonable man would have realized it if he had thought about it.
A person is reckless in the new wider sense when he performs an act which creates an obvious risk, and when performing the act, he has either given no thought to the possibility of such a risk arising or he recognized that some risk existed, but went on to take it. This test was established in:
v MPC v Caldwell [1982]
The defendant got drunk and set fire to a hotel as an act of revenge against owner. The fire was discovered and put cut before very serious damage occurred. The defendant was convicted of damaging property with intent to endanger life or being reckless whether life would be endangered under s1(2) Criminal Damage Act (CDA 1971). Mens Rea required was intention or recklessness. Even though the defendant said that he was so drunk at the time that it had never cross his mind that he may be endangering his life, he was convicted as drunkenness cannot be a defence to a basic intent crime.
v R v Reid
The defendant was driving a car with a passenger in the front seat. He attempted to overtake another car whilst still in the nearside lane. A taxi drivers’ rest hut protruded some six feet into the nearside lane. The defendant was convicted of causing death by reckless driving, contrary to s1 of the Road Traffic Act 1972.
- The risk must be obvious to the reasonable prudent person; it needs not be obvious to the defendant.
v Elliot v C [1983]
The defendant and educationally subnormal 14 year old school girl had entered a neighbor’s garden shed, poured white sprit on the floor and ignited it. The defendant then fled as the shed burst into flames. The magistrates dismissed the charge of criminal damage on the basis that she gave no though to the risk of damage, and that even if she had, she would not have been capable of appreciating it. The prosecution appealed and Divisional Court, allowing the appeal, held that this was irrelevant to the issue of recklessness. When the court in Caldwell had talked about an “obvious” risk, they had meant obvious to the reasonable man if he had thought about it.
- Negligence[4]
Negligence consists of falling below the standard of the ordinary reasonable person. The test is objective, based on the hypothetical person and involves the defendant either doing something the reasonable person would not do, or not doing something which the reasonable person would do.
It does not matter that the defendant was unaware that something dangerous might happen, if the “reasonable person” would have realized the risk, and taken steps to avoid it.
v Mc Crone v Riding [1983]
A learner driver was convicted of driving without due care and attention despite the fact that it was accepted by the court that he was “exercising all the skill and attention to be expected from a person with his short experience” because he had failed to attain the required standard.
Transfer of Malice (Bad intention)
Under the doctrine of transferred malice a defendant will be liable for an offence if he has the necessary mesn rea and commits the actus reus even if the victim differs from the one intended. The basis for this principle is the decision of the court in:
v R v Latimer (1886)
The defendant struck a blow with his belt at X. the defendant was convicted of maliciously wounding the victim, and appealed on the ground that it had never been his intention to hurt her.
Held: tht the conviction would be affirmed. The defendant had committed the actus reus of the offence with the necessary mens rea, ie he had acted maliciously. There was no requirement in the relevant act that his mesn rea should relate to a named victim. Thus Latimer’s malice was transferred from his intended to his unintended victim.
It is a general principle in criminal law that for a person’s liability to be established it must be shown that the defendant possessed the necessary mens rea at the time the actus reus was committed – in other words the two must coincide.
a) Continuing acts
Where the actus reus involves a continuing act a later mens rea during its continuance can coincide.
v Fagan v MPC [1969]
The defendant accidently drove his car on to a policeman’s foot and when he realized, he refused to remove it immediately.
Held: that the actus reus of the assault was a continuing act which, while started without mens rea, was still in progress at the time the mesn rea was formed and so there was a coincidence of actus reus and mens rea sufficient to found criminal liability.
b) Chain of events
The second way the courts have dealt with the problem is to consider a chain of events (i.e. a continuing series of acts) to be a continuing actus reus for the purposes of the criminal law. If the actus reus and the mens rea are both present at some time during this chain of events, then there is liability.
v Thabo Meli v R [1954]
The defendant had taken their intended victim to a hut and plied him with drink so that he became intoxicated. They then hit the victim around the head, intending to kill him. In fact the defendants only succeeded in knocking him unconscious but believing the victim to be dead, they threw his body over a cliff. The victim survived but died of exposure some time later. The defendant were convicted of murder, and appealed to the Privy Council on the ground that there had been no coincidence of the mens rea and actus reus of murder.
The Privy Council held that the correct view of what the defendants had done was to treat the chain of events as a continuing actus reaus. The actus reus of causing death started with the victim being stuck on the head and continued until he died of exposure. It was sufficient for the prosecution to establish that at some time during that chain of events the defendants had acted with the requisite mens rea.
Mens Rea Cases at a glance[5]
| Name | Case | Legal Principle |
| Moloney (1985) | D and step father were drunk. Talking and laughing, d phoned police, saying had murdered step father. Had seen who was faster at loading and firing shotgun. Convicted of murder but conviction was quashed on appeal. | HOL ruled that foresight of consequence is only evidence of intention. Was death serious injury/natural consequence? Did D foresee that consequence as being natural result? |
| Hancock and Shankland (1986) | Ds were miners on strike. Tried to prevent another miner from going work by pushing concrete block from bridge onto road. Block struck windscreen and killed driver. | Omission of word “probable” was held here to make guidelines defective. Guidelines are therefore no longer law |
| Nedrick (1986) | D had grudge against woman. Poured paraffin through letter box and set alight. Child died in fire. | COA told jury to ask themselves 2 Qs – How probable was consequence? Did D foresee that consequence? |
| Woollin (1998) | D threw 3 month baby towards pram against wall. Baby suffered head injuries and died. | Went to the HOL, who felt that COA’s views are not helpful. |
| Matthews and Alleyne (2003) | D dropped victim 25 feet from bridge. Could not swim. Watched him “dogpaddle” left and v drowned. | It meant foresight of consequence is not intention. Rule of evidence. If jury decides that D foresaw virtual certainty of death or serious injury then entitled to find intention but do not have to do so. |
| Cunningham (1957) | D tore gas meter from wall of empty house to steal money. Caused gas to seep into next door where woman suffered. | Uses the word “maliciously” to indicate mens rea required. D must either intend consequence or realise risk to consequence |
| Metropolitan Police Commissioner v Caldwell (1981) | D had grievance against hotel owner. Got drunk and decided to put fire in hotel. Fire was put out quickly, without serious damage | During 1982 and 2003, D could be guilty of certain offences even though he had not realised there was a risk. |
| G and another (2003) | Ds, 11 and 12 boys set fire to bundles of newspapers. Threw under wheelie bun and left. Caught fire to shop and other buildings, causing £1 million damages | HOL held that D could not be guilty unless had realised risk and decided to take it. |
| Lidar (2000) | D and others asked to leave public house. 1 shouted something at V, doorman of pub. V put arms in window. D drove off. V was dragged under rear wheel and suffered injuries and died. | COA affirmed that involuntary manslaughter could still based on subjective recklessness. Must be prove manslaughter, must be shown that D foresaw there was highly probable risk of serious injury ( or death) to V. |
| Sweet v Parsley (1969) | Owned farmhouse to students who were smoking cannabis. Was not guilty as no knowledge. | Even if Act does not actually state that D must have knowledge, sometimes inferred that knowledge is required for D to be guilty. |
| Latimer (1886) | D aimed blow with belt at man at pub who had attacked him. Belt bounced off man and hit woman face. Guilty of assault against woman | D can be guilty if he intended to commit a similar crime but against different victim. |
| Thabo Meli v R (1954) | Ds attacked man and believed to have killed him. Pushed body over cliff. In fact, man survived attack but died of exposure when unconscious at foot of cliff. | Court had to decide whether actus reus and mens rea were present together. |
| Church (1965) | D had fight and knocked out woman. Unsuccessfully, tried to bring her round. Thought was dead and put in river. She drowned. | D in this case were guilty as required mens rea and actus reus were combined in series of acts |
| Fagan v Metropolitian Police Commissioner (1986) | Told by police to park by kerb. In this, drove on policeman’s foot without realizing. At first, F refused to move car. When policeman pointed out what happened, asked F several times to move car off foot. Eventually, f did move car. | Where continuing act for actus reus and some point while act is still going on, D has necessary mens rea, then 2 do coincide d will be guilty. |
Conclusion
Under the Penal Code the mistake must be one of facts and not of law. Where, through a mistake, a man intending to do a lawful act, does that which is unlawful, the deed and the will act separately; there is not that conjunction between them which is necessary to form a criminal act. But where an act is clearly a wrong in itself, and a person, under a mistaken impression as to the facts which render it criminal, commits the act, and then he will be guilty of a criminal offence.
Bibliography
- American Law Institute. Model Penal Code and Official Commentaries, Philadelphia: ALI, 1985.
- ASHWORTH, ANDREW. Principles of Criminal Law. 2 ed. Oxford: Clarendon Law Series, 1995.
- COKE, EDWARD . The Third Part of the Institutes of the Laws of England: Concerning High
- Treason, and Other Pleas of the Crown, and Criminal Causes (1644). London: E. and R. Brooke, 1797.
- FLETCHER, GEORGE P. “The Theory of Criminal Negligence: A Comparative Analysis”, 119
- University of Pennsylvania Law Review, 1971: pp. 401- 415.
- FLETCHER GEORGE P. Rethinking Criminal Law. Boston: Little, Brown, 1978.
- HALL, JEROME. General Principles of Criminal Law. 2 ed. Indianapolis: Bobbs-Merrill, 1960.
- KADISH , SANFORD H. “The Decline of Innocence”, 26 Cambridge Law Journal, 1968: 273.
- KELMAN, MARK. “Interpretive Construction in the Substantive Criminal Law”, 33 Stanford Law, Review, 1981: 591.
- PACKER, HERBERT L. “Mens Rea and the Supreme Court”, Supreme Court Review, 1962: 107.
- POLLOCK, FREDERICK, and MAITLAND, FREDERICK W. The History of English Law Before the Time of Edward I (1895). 2 d ed. 2 vols. With a new introduction and select bibliography by S.F.C. Milsom. London: Cambridge University Press, 1968.
- ROBINSON PAUL H. “A Brief History of Distinctions in Criminal Culpability”, 31 Hastings Law, Journal, 1980: 815.
- ROBINSON PAUL H. “ A Functional Analysis of the Criminal Law”, 88 Northwestern University, Law Review, 1994: 857.
- ROBINSON PAUL H. “Rules of Conduct and Principles of Adjudication”, 57 University of Chicago, Law Review, 1990: 729.
- ROBINSON PAUL H. “Should the Criminal Law Abandon the Actus Reus- Mens Rea
Distinction?” in Shute, Gardner, and Horder, eds., Action and Value in Criminal Law, Oxford: Oxford Press (1993).
- ROBINSON PAUL H. and GRALL, JANE A. “Element Analysis in Defining Criminal Liability: The Model Penal Code and Beyond”, 35 Stanford Law Review, 1983: 681.
- ROBINSON PAUL H. and DARLEY, JOHN M. “The Utility of Desert”, 91 Northwestern University, Law Review, 1997: 453.
- SAYRE , FRANCIS BOWES, “The Present Significance of Mens Rea in the Criminal Law”, Harvard, Legal Essays, 1939: 399.
- STEPHEN, JAMES F. A History of the Criminal Laws of England. 3 vols. London: Macmillan, 1883.
- STROUD, DOUGLAS. Mens Rea; or, Imputability Under the Laws of England. London: Sweet and Maxwell, 1914.
- TURNER, J.W.C. “The Mental Element in Crimes at Common Law.” Cambridge Law Journal 6 (1936): 31-66.
- WILLIAMS, GLANVILLE . Criminal Law: the General Part. 2 ed. London: Stevens, 1961.
[1] Source: http://www.duhaime.org/LegalDictionary/A/ActusReusNonFacitReumNisiMensSitRea.aspx
[2] Criminal law recognizes two types of intention: direct intent and oblique (or indirect) intent. These concepts will be explored in detail in the following sections. Over the past sixty years, the courts (and even Parliament) have attempted to explain the concept of oblique intention.
[3] Although the House of Lords stated in R v G and another that their Lordships’ definition of recklessness related specifically to criminal damage, the Court of Appeal in Attorney General’s Reference (No. 3 of 2003) [2004] 2 Cr App R 367 later held that R v G and another laid down general principles. In practice, it seems likely that the definition of recklessness adopted in R v G and another will be applied to other statutory offences, unless the contrary is stated within the relevant statute.
[4] Another notable example is the offence of causing or allowing the death of a child or vulnerable adult under s.5 of the Domestic Violence, Crime and Victims Act 2004
[5] Source: http://www.lawteacher.net/PDF/Mens%20Rea%20Intention%20Table.pdf