Criminal Law Mens Rea - Essay Example

Topic: Criminal Law - Mens Rea 'It may be said that any theory of criminal punishment leads to a requirement of some kind of mens rea. The deterrenttheory is workable only if the culprit has knowledge of the legal sanction; and if a man does not foresee the consequence of his act he cannot appreciate that punishment lies in store for him if he does it. The retributive theory presupposes moral guilt; incapacitation supposes social danger; and the reformative aim is out of place if the offender's sense of values is not warped. However, the requirement as we have it in law does not harmonise perfectly with any of these theories.' Further by insisting that mens rea is a necessary constituent of crime distorts the function that the concept really performs. Discuss critically. The topic statement is lifted from Glanville Williams Criminal Law: The General Part [2nd ed. 1961]. A perusal of the topic shows that it runs counter to another statement in the same text which shows the belief of the author that the concept of mens rea is an index of maturity of our legal system. The correlation to the various justifications of punishment or purposes of criminalization does not at all compute when considered from the various vantage points and time frames of the said justification theories. The mental element of crime may be significant for one purpose or the other but the same way that the various purposes do not conjoin with any one crime, the element of mens rea will not be relevant to all the justifications and purposes. The cardinal principle of criminal law is that 'a wrongful act does not make a person guilty unless his mind is legally blameworthy.' There must not only be a wrongful act (actus reus), but with it must also concur intent (mens rea, Latin: the guilty mind; a guilty or wrongful purpose; a criminal intent1). Actus non facit reum nisi mens sit rea.2This is so because evil thoughts are condemnable and punishable only when they are sufficiently dangerous to society and only when translated into evil deeds. From a practical vantage point, there is really no way for any legal system to sanction evil thoughts. Blackstone confirmed this: "[A]s no temporal tribunal can search the heart, or fathom the intentions of the mind, otherwise then as they are demonstrated by outward actions, it therefore, cannot punish for what it cannot know And as a vicious will without a vicious act is no civil crime, so, on the other hand, an unwarrantable act without a vicious will is no crime at all. So that to constitute a crime against human laws, there must be, first, a vicious will; and secondly, an unlawful act consequent upon such vicious will."3 Again, for Glanville Williams, mens rea is significant of (legal) civilization.4 The existing ideals of justice require that a person should only be punished where he intended to commit the unlawful act. This is a simplistic formulation because if strictly adhered to persons committing crimes in ignorance of criminal law would not be held liable. This situation would result to impossibility in implementing the law. This led to the adoption of presumptions to govern the matter. The burden to prove the existence of a criminal state of mind is lodged upon the prosecution in most offences except those of strict liability. Mens rea does not mean 'wickedness' in any moral or general sense.5 On the other hand, good motive does not provide defence to what is otherwise criminal.6 Mens rea is a legal jargon that refers to a number of states of mind that the law treats as criminal, each of which is related to or accompanies the ingredient of the actus reus of the offence. This concurrence is what gives rise to criminal liability. These states of mind that are relevant to establishing criminal liability are: 1) intention, 2) recklessness and 3) gross negligence about consequences and they represent the fault element of crime. Knowledge of the surrounding circumstances may form part of the mens rea. Not every ingredient of actus reus of a statutory offence has a mens rea counterpart; the variable nature of mens rea. While in certain circumstances, persons may be found to have mens rea that they never originally possessed, in some other circumstances covered by crimes of strict liability, the accused may be convicted even though there is no mens rea. These are, by nature, regulatory offences in which there is no real moral issue involved and do not carry the same level of moral blameworthiness. The general rule with both common law and statutory offences is for the prosecution to prove every ingredient of the actus reus and the corresponding ingredient of mens rea. This is a general presumption against strict liability unless clearly intended by the Parliament. It is assumed that full mens rea is required and only in the existence of special factors that justify an exception that the courts can treat an ingredient of actus reus as strict.7 The case law of Sweet and Parsley8 set this doctrine of presumption and this is consonant with the supremacy of the Parliament and the view that criminal conduct is based on fault which, in turn, is equated to mens rea. Lord Nichols insisted on full mens rea in the case of B (a minor) v DPP9: "There must be a clear implication in the law violated that the Parliament should be taken to have intended that the ordinary common law requirement of a mental element should be excluded in respect of the age ingredient of this new offence Thus far, having regard especially to the breadth of the offence and the gravity of the stigma and penal consequences which a conviction brings I see no ground for so concluding." There is a preference for subjective criteria for mens rea, an obvious influence of liberal theories on punishment. So, a person should be punished only when he or she has recognized the harmful aspects or consequences of their conduct. The defendant must intend, know or was at least aware of the risk, in the sense of being reckless, as to the particular harm occurring. This is antecedent of the principle that a person should not be punished without proof of fault. The objective test of intention was introduced by DPP v Smith10 and held that the accused is guilty of murder where an ordinary (reasonable) man would have foreseen that his actions would result in death or grievous bodily harm. This case law was repealed by s.8 of the Criminal Justice Act 1967 and the extant mens rea for murder is subjective. The subjective mental states are intention, knowledge and recklessness. Two ingredients constitute mens rea: 1) the act must be have been done voluntarily and 2) there must have been some foresight of consequences. The act charged must have been done with the intention or with recklessness in conjunction with the defendant's foreseeing the consequences of his acts and not caring whether those consequences are brought about or not. There are crimes that require the prosecution to provide proof of particular form of mens rea. In murder, the mens rea required is malice afterthought or an intention to kill or to cause grievous bodily harm. In Woolmington v DPP,11 where the defendant raised the defence of accident that caused the death of the victim, the House of Lords ruled that the prosecution must prove that the evidence of accident could not be relied upon and that there was actually murder. The prosecution must prove to the required quantum that the accused committed the actus reus with the appropriate mens rea. The various forms of intent12 are Direct13, Oblique14 and Ulterior. There is also specific and basic intent.15 The term mens rea is inaccurate and if literally applied the innocent will be punished even if there is not intention of committing an offence. Mens rea is the element of fault that the prosecution is burdened with proving during trial of the accused. The basic forms are intention and recklessness. The cases of R v Moloney16 and R v Woolin17 adopted the subjective approach: "Where intention is the necessary mens rea, there can be no doubt that it will be based on the defendant's state of mind." Even in such cases where there is evidence of the defendant's state of mind, it may have only occurred fleetingly through his mind. For this reason the law required a very high foresight before his state of mind is labelled intentional. Proof of foresight is not intention but it is proof of intention, however circumstantial. Recklessness is different from foresight of certainty of consequence. It is unjustifiable risk taking despite awareness of the risk materialising.18 According to Paul H. Robinson,19 criminal law doctrines serve the functions of "announcing ex ante the prohibitions and demands of criminal law, identifying which violations of the law's prohibitions and demands should be punished, and providing a rough grading of seriousness of each such violation." All these are served by the principle of mens rea. These functions are more realistic than trying to conjoin mens rea or even actus reus with the theories of justifying punishment. The concepts of material retribution (Kant), dialectic retribution (Hegel), protection of society (Liszt) and the like are all goals of criminal punishment but they do not all correspond to the mens rea required in every crime. Criminal punishment as a legal phenomenon is the object of criminal law but the object of criminal law doctrines such as mens rea is to define aspects within the object of criminal law ensuring conformity to justice, fairness and certainty, beyond mere consequentialism and retributionism. Western criminal legal development revolved around the system's love-hate relationship with the wrongdoer's mind. We deem it just and fair to look into intent to determine both the propriety and grading of punishment. Criminal law's mantra is the actus non rule. The concept of moral blameworthiness has developed into several nuances of culpability distinctions, a long way from the general finding of evil mind; so have the law on excuses and defences such as insanity, infancy and compulsion. The following are the theories justifying punishment: utilitarianism, deterrence, incapacitation, rehabilitation and retribution. Theories of Punishment are relevant to legislators in the process of enacting statutes. They guide judges in the interpretation of statutes and in imposing the appropriate sentence in the cases before them. Utilitarianism seems to be the matrix that holds the use of one or the other or more of the theories in justification of crimes but is more related to deterrence. It focuses on the criminal and not so much on the victims. It is prospective and premised on the idea that its goals will be achieved by reduction in future harms and crime. Deterrence which is either general or specific depends upon rational actors and efficient information dissemination. Incapacitation relies on the removal of the criminal from society to prevent further crimes. It looks at the criminal and judges the likelihood of his commission of repeated offences and impose longer sentence. All persons convicted of the same offence get the same sentence. Rehabilitation is optimistic and intends the reformation of the criminal as the best means of preventing future crime. It assumes that there are norms that society or authority can establish, that the criminal wants to be rehabilitated, that it is cost effective and that imprisonment does not help criminals to learn from one another. Retributivism contrives punishment to suit the crime. It justifies punishment on the premise that wrongdoing merits punishment but does not assume that society will be bettered by retribution. Wrongdoing creates disequilibrium and the perpetrator should pay society his debts. There are possible advantages to retributivism: by taking the place of the victim in the name of justice, the likelihood of personal vengeance is lessened. Punishment reinforces social norms and mores. It makes clear the law and its consequences. Recklessness was for a time reformulated by an objective criterion of failing to think in Metropolitan Police Commissioner v Caldwell.20 The concept was set aside as unacceptable because it was not based on the defendant's state of mind and the absence of something from a person's state of mind is as much a state of mind as its presence.21 Over and above the gradations of mens rea, we must turn our attention to the reasons for requiring mens rea in relation to the above theories. For utilitarianism and retributivism, mens rea justify punishment and its aims. This is traditional formulation but it is only partly true because it cannot deter crimes that are not intended to be deterred. It may only cause persons who are careful to be more careful but not the careless or reckless. The person who causes harm accidentally does not need deterrence or reformation. This concept is premised on the voluntary will or mind of the actor and the direction it has taken. To the thinking mind who has grasped the possible consequences of an intended action, the person may be deterred from further pursuing the action based on the assessment. To the actor after the fact of the offence, he may be reformed by contemplation of the consequences of the particular action he has undertaken and may decided not to take the vicious path. This is the utilitarian value of mens rea but this is incapable of taking into account accident prone persons. Of these types of person, contemplation of future or of past actions will be irrelevant; only the development of the will and awareness so as not to cause further accident. This argument is also applicable to the insane, especially the violent ones. Of these two cases, when obviously incurable, restraint is necessary through incapacitation. To avoid abuse of the process for the purpose, fairness procedures are installed. The concept of retribution also revolves around mens rea. Accidental harms are also not visited with retribution. It has been pointed out that where the harm caused is rather severe, the significance of retribution seems to weaken. This may be true with the numbing effect not only upon the criminal punished but also upon the victims and the survivors. But please note that this criticism disregards the mens rea issue, or deterrence and reformation. HLA Hart insists that it is inappropriate and unjust to punish persons who committed the crimes in the absence of choice and free will. The law provides defences but not at all faithfully, considering the punishment of recklessness or negligence or strict liability or mistake or even where the actor is ignorant of the surrounding circumstances. It is possible to eliminate the mental element of mens rea and allow the punishment of people for accident, or crimes committed under insanity or duress. In this case, only actus reus will be relevant to definition of crimes. The defences of accident, insanity or duress may still be allowed to mitigate the penalty. There are procedural difficulties brought about by the mens rea element of crimes. The evidentiary burden of the prosecution is a heavy one and it allows many criminals to avoid conviction. This is not deterrent or reformative. In fact, it gives the implied incentive to encourage potential wrongdoers because they may not be punished or they can gamble to see if they will really be punished. The removal of mens rea element would over-deter innocent persons from becoming socially productive and useful, which would be costly to the society. It may even be admitted that two wrongs do not make a right but this argument will strike at the heart of punishment itself in abolitionism. The more telling criticism of mens rea is its circumstantial nature, but when placed upon the balance with the human needs for justice, some compromises with certainty must be allowed. Mens rea is probably the most crucial component of a crime because it determines how and whether its actor should be punished. It is what distinguishes harm between crime and tort or accident. It is what maintains the tension between certainty and justice, without which there can only be strict liability crimes and tort. Mens rea should be modified to more realistic terminology corresponding to the state of mind of the defendant congruent to modern advances in psychology. It must reflect the desire states and other psychiatric impetus driving the actor to do the proscribed act. This must be so because if mens rea represent maturity in criminal legislation, it is only puberty. Further maturity is required because to remain in puberty will be to remain in the blindness of youth. It is not true maturity. BIBLIOGRAPHY Black's Law Dictionary [4th Ed.] 1968. Blackstone, W. Commentaries on the Laws of England. Boston (1962) Criminal Law: The General Part 30 2nd Ed.] 1961. Hart, HLA, (1968) Punishment and Responsibility. Oxford University Press. Mens Rea: R v Woolin [1997] Crim LR 519-520 Robinson, Paul [1993]. Should Criminal Law Abandon the Actus Reus-Mens Rea Distinction Action and Value in Criminal Law, Shute, Gardner and Horder (eds.). Clarendon: Oxford. Metropolitan Police Commissioner v Caldwell [1981] 1 All ER 961. B (a minor) v DPP [2000] 1 All ER 833 Chiu-Cheng v R [1995] 1 AC 111, [1995] 2 All ER 924. DPP v Majewski [1976] 2 All ER 142. DPP v Smith [1961] AC 290. Hyam v DPP [1974] 2 All ER 41. R v Dodman [1998] 2 Cr App R 338. R v Sheppard [1980] 3 All ER 899. R v Moloney [1985] 1 All ER 641 R v Hancock and Shankland [1986] 1 All ER 641. R v Steane [1947] 1 All ER 813. R v Woolin [1998] 4 All ER 103. R v Cunningham [1957] 2 All ER 412. R v. Reid [1992] 3 All ER 673. Sweet and Parsley [1970] AC 132. Woolmington v DPP [1935] Read More