MENS REA
HISTORY
It is a widely held view of legal
historians that until the twelfth century a man might be held liable for many
harms, simply because his conduct caused them, without proof of any blameworthy
state of mind whatsoever on his part.
Under the
influence of Common law and Roman law, a change gradually took place and
the courts began to require proof of an element of moral blameworthiness –“a
guilty mind” of some kind.
In the developed common law of crime, some such mental element is always necessary and is known as mens’rea.
DEFINITION
OF TERMS
Mens rea is
a technical term. It is often loosely translated as “a guilty mind”, but this translation is frequently misleading.
A man may
have mens rea, as it is generally understood today, Without any feeling of
guilt on his part. He may, indeed, and even legally, right, and yet be held to
have mens rea. In order properly to appreciate the meaning of the term it is
necessary to distinguish between a number of different mental attitudes which a man may have with respect to the actus rea of the crime in question.
These are:
(a)
Intention
(b)
Recklessness
(c)
Negligence
(d)
Blameless
inadvertence
(a)
INTENTION
There exist numerous
crimes which are so defined as to require proof of intention to bring about
various consequences. It is therefore very important to know what is meant by “intention”.
It is convenient to
discuss this through an example. A sets fire to a house and B who is in the
house is burned to death. The question is did A intend to kill B?
Set fire to the house-
(i)
With
the purpose of killing B.
Alternatively, A may have
set fire to the house not for the purpose of killing B but for the purpose of
collecting the insurance monies. If, when he applies the match, he knows that B is in the house, he may
(ii)
Believe
that it is certain that B will die; or
(iii)
Believe
that it is highly probable that B will die; or
(iv)
Believe that it is probable that B will die;
or
(v)
Believe
that it is possible but improbable that B will die.
It is clear that in case
(i) A intends to kill B and that in case (v)- so far as English Law is concerned A
does not intend to kill B.
The answer, in the present state of the law, must, it seems, be that it depends on the context in
which the question is asked.
The intention has a variable
meaning.
There are some cases in which
it has been held that short of purpose is enough and that A did not intend a consequence that was not his purpose although he must have foreseen it as
certain to ensue if he achieved his purpose
(b)
RECKL
For many crimes, either
intention to cause the prescribed result or recklessness whether it be caused
is sufficient to impose liability. A person who does not intend to cause a
harmful result may take an unjustifiable risk of causing it. If he does so, he
may be held to be reckless. Not all risk-taking constitutes recklessness.
Sometimes it is justifiable to take a risk of causing harm to another’s
property or his person, or even of causing his death. The operator of an
aircraft, the surgeon performing an operation, and the promoter of a tightrope
act in a circus must all know that their acts might cause death but none of
them would properly be described as reckless unless the risk he took was an
unreasonable one. Whether it is justifiable to take risk depends on the social
value of the activity involved relative to the probability and the gravity of
the harm which might be caused.
If the matter comes
before the court, the question is whether the risk was one that a reasonable and prudent man might have taken.