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CRIMINAL LAW: MENS REA (INTENTION)

Updated: May 17, 2023


CRIMINAL LAW: MENS REA (INTENTION)


Criminal Law: mens rea (intention) is the mental element of crime. It is the guilty intention to bring about a desired result which is considered criminal. The mens rea of murder is conventionally explained as "malice aforethought", but this can be deceptive because (as Lord Hailsham LC pointed out) neither word takes its usual meaning. Malice needs not be truly malicious - euthanasia for reasons of compassion is still murder - and no more than a split second's premeditation is necessary. Moreover, murder can be committed without the intention to cause death: the mens rea is an intention to cause either death or grievous bodily harm to any person.


The Homicide Act of 1957 explains mens rea for murder, ‘malice afterthought’ as:


1) An intention to kill (express malice) or

2) An intention to cause grave bodily harm (implied malice)


DIRECT INTENTION


There are two kinds of intention in criminal law: direct intention and oblique intention. Direct intention is where the consequence is what the Defendant wanted to happen by his act, it was the purpose of the Defendant’s act.


OBLIQUE INTENTION


Oblique intention refers to those circumstances where the Defendant does not necessarily desire an outcome but he appreciates as inevitable the side effect of his action. He will be considered to have an intention to commit the actus reus even if he has oblique intent.


The Draft Criminal Code includes oblique intention in the definition of intention:

According to Section 1 ‘a person acts


(a) ‘intentionally’ with respect to a result when –


(i) it is his purpose to cause it, or

(ii) although it is not his purpose to cause it, he knows that it would occur in the ordinary course of events if he were to succeed in his purpose of casing some other result


MOTIVE AND INTENTION


Intention must not be confused with motive or desire. Even though the defendant has a motive (for example, a reason to kill) that does not mean that when he commits the actus reus he can be automatically be taken to have the intention to kill.


RECKLESSNESS


The Defendant takes an unjustified risk that might cause a serious consequence with awareness of that risk.


TRANSFERRED MALICE


Whether the Defendant has the mens rea of a particular crime and he acts causing the actus reus of that crime, he cannot say that the actus reus was carried out in a way that was not exactly as he intended it.


CO- INCIDENCE OF ACTUS REUS AND MENS REA


The actus reus and the mens rea must normally coincide in time, but the courts are prepared to take a broad view.


CAUSATION


The two elements of actus reus and mens rea can be looked at in terms of causation. A link between the two may be considered sufficient whether they cooperate in reaching the outcome.


MISTAKE


There are circumstances in which the court may take into consideration a mistaken consideration of the Defendant. Nevertheless, the defence of ignorance of the law does not allow the escape from liability.


SUMMARY

  • The concept of mens rea refers to the mind of the person committing the unlawful action.

  • Mens rea may constitute intention, recklessness, malice, negligence and dishonesty.

  • Intention is the highest form of mens rea essential in order to establish murder.

  • Recklessness is the form of mens rea used in non-fatal offences against persons.

  • ‘Transferred malice’ is a principle that refers to those circumstances where the Defendant has actus reus and mens rea but the way he carried out the actus reus was not exactly as he planned.

  • The elements of actus reus and mens rea must coincide at some point in time.

  • The court might take into consideration in some specific circumstances whether the Defendant has mistakenly acted.

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