English Criminal Law/Mens rea

Mens rea

The mens rea of a crime is made up of those elements which relate to the state of mind of the accused. In our example of theft, the mens rea elements are "dishonesty" and "intention to permanently deprive". Mens rea elements are often harder to spot in legislation as the words are adjectives, generally non-standard and emotive. Examples might include "dishonest", "intentionally", "fraudulently", or "knowingly". The three types of accepted mens rea elements are intention, recklessness or negligence.

Intention Criminal intention can be further broken into two groups, direct and oblique. A direct intention is the willful desire to commit an act. It must be understood that the intention sufficient to amount to mens rea is only the intention to perform the required criminal act, not an intention for the result to occur. Assault occasioning actual bodily harm (Section 47 of the Offences Against The Person Act 1861) is a good example here. The requisite mens rea is intention to cause assault. If A intentionally assaults B and harm results, he is guilty of the offence. The fact that he does not intend harm is irrelevant. He intended to do the act, and harm is simply a by-product.

Oblique intention, also known as indirect intention, refers to a knowledge or belief that a consequence is a virtual certainty, and acting with this in mind, although the result may not be intended. To explain further: A intends to punch B, but they are separated by a pane of glass. His intention to punch B is direct as he desires to perform this act. Breaking the glass in pursuance of his goal amounts to the actus reus of criminal damage, but A does not desire for this to take place. Since punching B will inevitably result in breaking the glass, it is a virtual certainty. therefore, in punching B, A had oblique intention for criminal damage - he appreciates that it will happen, and although does not desire it, continues to act regardless.

Recklessness Intention will be more clear from an example: suppose that a man has many desires, some of which are deemed to be too visionary, some he lacks the energy to implement. But if he decides to achieve his desires, and begins to start to act to that end, the desire becomes the intention with which he acts.

Transferred malice The doctrine of 'transferred malice' operates when there is an unexpected divergence between the defendant's mental state and the occurrence of the actus reus. The mens rea is regarded as transferred when this divergence is immaterial to the definition of the offence. Thus, if D fires a gun intending to kill T but misses and kills V instead, the fact that V's death was unintended does not preclude D's liability for murder. It is sufficient that D intended to kill a person — the identity of that person is irrelevant to the offence definition. Compare this with the situation where D's bullet, instead of hitting T, breaks a window of the nearby house. Here the intention to kill a person cannot be 'transferred' to make D guilty of criminal damage — an offence with a different mens rea requirement.

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