Mens Rea An Enormous Aspect Of Criminal Law Philosophy Essay

Mens Rea is an enormous aspect of criminal law. Is the mental element that beseeched by the definition of a circumstantial crime and it encompass three degrees: intention, recklessness and negligence. The most reprehensible form of mens rea is intention, as it is more censurable to cause harm premeditatedly and additionally is used in more crucial offences such as murder which demands intention to kill or to engender Grevious Bodily Harm. A part of analysts considered negligence as the third degree of mens rea, as it refers to a failure to acknowledge the dangers. Hence, it will be evaluated as a distinctive guideline of blame as it mentions to the absence of a state of mind. Notwithstanding, mens rea is engaged with the appellant’s state of mind at the time of the actus reus, which covers everything except of the defendant’s state of mind, as it often illustrates the guilty act. Conjointly, the doctrine of transferred malice, appoint liability to the defendant of an offence if he has the appropriate intention and accomplished the actus reus on a different person than the intended. 0n this wise, in Latimer [1] , the defendant attempted to blow at one person but he missed and crashed one other, thus the doctrine of transferred malice exists, as the mens rea is the same. Consequently, in order for a criminal liability to subsist, the actus reus and the mens rea must coincide. Obviously mens rea associates with serious crimes such as homicide, theft and burglary, which have a wide range of elements in order to recognise the intention of the defendant.

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Homicide is an enormous aspect of criminal law which includes all the unlawful killings. The main categories of them are murder and manslaughter. All the homicide offences have a common actus reus, the unlawful killing. If the defendant has the mens rea for the murder, then the prima facie liability for the murder starts to exist. At this stage the jury has to consider if the defendant has the defence of provocation or diminished responsibility. If he has so, then he is liable of voluntary manslaughter, but if he has not, then he is liable for murder. On the other hand, if the defendant does not have the appropriate intention for murder, then he is convicted with involuntary manslaughter. As reported to section 1 of the Homicide Act “killing shall not amount to murder unless done with malice aforethought” [2] , which was illustrated in Cunningham [3] , as express and implied malice. Express malice divided into two sections, direct and oblique malice. Direct malice, is an uninterrupted intention to kill someone and oblique malice, is not the prime purpose of the defendant. He has no intention to cause death but nevertheless, as a result of his actions, the victim died. Hence, if the jury has satisfied that at the time when the defendant recognised that fatal consequences would be virtually certain to result from his actions, then there is an intention to kill even thought there is no actual desire to achieve that result. In Woolin [4] , the defendant had thrown his baby causing him to die. Woolin did not intent to kill his baby, but he could foresight that his actions was about to cause the death of the baby. Moreover, another aspect of malice aforethought is implied malice. This indicates that, the defendant’s main intention is to cause GBH but as a result of his actions, the victim dies.

In consonance with section 8 [5] , the jury has to consider all the evidence, before adjudicated that the defendant is guilty of murder, and not only if he intended or foresaw a result of actions as a natural and probable consequence. In other words, the jury has to consider only the appellant’s subjective state of mind. According to this section, a jury has the opportunity to conclude about the mental state of the accused from the objective view of the reasonable man and if they decided that a reasonable man would intended to cause death or serious injury, then they will be persuaded that the defendant did. In Moloney [6] , the jury could argue that the defendant foresaw the consequences of his actions as a natural consequence, so he is liable for the death of the victim even if he did not wish or desire to kill him. On the other hand, if the accused did not have the intention to kill or to cause serious injury, as happened in Hancock and Shankland [7] , then the convictions of murder overturned to those of manslaughter. This is able to happen only if death was not a natural consequence but a probability. As it was stated in Nedrick [8] , the evidence of foresight is intention evidence. The judges directed the jury to consider if the death was intended, as natural consequence becomes virtual certainty, as I mentioned above.

Apparently, as the mens rea in murder is intention to kill or to cause GBH, under the Homicide Act [9] there are three defences which decrease liability from murder to voluntary manslaughter. These defences are provocation, diminished responsibility and suicide pact. If the appellant is liable for murder, meaning that he has the appropriate elements of actus reus and mens rea, and he can rely on one of the above defences, then he is liable for manslaughter. Under section 3 [10] , a person who charged with murder, was provoked by things said or done or both, to lose his self-control. Pursuant to this the jury has to indentify if the defendant actually provoked to act and whether a reasonable person would be provoked to act as the defendant did. Section 2 [11] , illustrates the defence of diminished responsibility, where a person cannot convicted of murder if he suffers from an abnormality of mind, as this disorder invalidated his mental responsibility of what he is doing. Additionally, section 4 [12] demonstrates the defence of suicide pacts. The defendant kills the victim if there is a common agreement between two or more parties and the object of that agreement is death. This indicate that if a person convicted with murder, then if he has the appropriate proof that he was acting under a suicide pact then he would be liable for manslaughter. In some cases manslaughter can be caused due to negligent actions of the defendant, as he has a duty of care towards the victim. If he failed to perform his duty then he is in a breach of duty and that may cause the death of the victim. In Adomako [13] , the breach of that duty caused the death of the victim. I think that people who have duty of care towards others, must be able to recognise if there is a possibility for a death and try to avoid it.

Pursuant to the Theft Act 1968, “a person is guilty of theft if he dishonest appropriates property belonging to another with the intention of permanently depriving the other of it” [14] . Conspicuously, there are two essential features of mens rea in theft, dishonesty and the intention of permanently depriving. Dishonesty is the first element of the mens rea in theft and as it construes in section 2(1) of the Theft Act a person cannot be dishonest if he has the presumption that he has the right in law to deprive the other of the property. Additionally, he cannot be dishonest if the embezzlement accomplished in the belief that the others would acquiesce if they have the knowledge of the stealing and if there is an authentic belief that the owner of the property would not be able to detect it by taking reasonable steps. On the contrary, as it reported to section 2(2) [15] , a person can be found liable for dishonest if he misappropriates the property of someone else, in spite of his desire to pay for the property. In consonance with Feely [16] , the plaintiff apprehended that his action was dishonest and he said that he has the intention to repay for the stealing. Under those circumstances, the jury has to make a determination whether the facts of dishonesty coexist with the standards of the ordinary decent person. As a result, the Court of Appeal, in the case of Ghosh [17] , conceived a test so that to be able to recognise if the appellant’s behaviour considers as dishonest according to the standards of ordinary decent people. If it was not then he is not dishonest. Howbeit, if his behaviour was acknowledged to be dishonest, then the defendant is not dishonest unless he comprehended that people would regard him as dishonest. Although the crucial ambition of that test was to authorize that dishonesty’s appraisement could be based on objective and subjective archetypes, it does not abolish the capability between the juries to be inconsistence. Indubitably, if the defendant did not find dishonest, then there is no theft. Intention to permanently deprive is the second element of mens rea in theft. In agreement with section 6(1) [18] , if a person borrows property which belongs to someone else, then he is not liable for theft. Nevertheless, if he decides to keep the borrowed property, then this situation would be considered as theft, as it stated in Walkington [19] , in which the defendant took the property with the intention to decide later whether to keep it or not. In Easom [20] , the defendant had a conditional intention to steal if he found something precious. Besides, this was not adequate to adjudge him of theft. In Lloyd [21] , the defendant has the intention to treat the property of the true owner as it his own and to deprive the owner of his rights to his property. As Lord Lane stated “a mere borrowing is never enough to constitute the necessary guilty mind unless the intention is to return the thing in such a changed state that it can truly be said that all its goodness or virtue has gone” [22] .

Supplementary, burglary is a serious offence which encompasses mens rea. Under section 9(1)(a) [23] , a person is guilty of burglary if he enters into a building or part of it as an invader, with intention to steal, commit GBH or cause criminal damage. Moreover, section 9(1)(b), specific the offences. Keep in line with section 9(1)(a), the defendant at the time of entering into a building must have the appropriate constituent of mens rea, to have the knowledge that his entry is not permitted. In Cunningham [24] , in order to recognise if a defendant considered himself as a trespasser, a subjective test has been taken. On the contrary, if a person enters into a building with permission, then the doctrine of trespass ab initio takes effect. As the entry has to be unlawful, this principle does not match the offence of burglary. In Collins [25] , the defendant’s conviction for burglary, with intent to rape, was revoke as the Court of Appeal cannot be sure that the defendant has the appropriate knowledge that his entrance is unlawful and as it stated, the entry has to be substantial and effective.

Accompanying, in ulterior offences, the mens rea has to be acknowledged either in trespass with intention or in trespass which is caused recklessness. However, as Laing [26] validates, trespass is one of the features of burglary. In that case the defendant entered into a shop, after closing time, but he had not stolen anything and also he had no intention to do so. As is obvious, trespass is an element of burglary but in order for someone to be charged with burglary, he must have the other essential elements of the offence such as intention. The only thing that is required in order to convict someone of stealing is intention. Besides, in some cases the conditional intention is seated. Before 1979 as is illustrated in Husseyn [27] , conditional intention was not adequate, as the defendant did not have the intention to steal unless he found something precious. Afterwards, in consonance with Attorney – Genaral’s References [28] , conditional intent will be satisfied, as the only thing that required is intention even if there is nothing worth in the building to steal.