In criminal law,for there to be a conviction,the court usually assess the mental element (mens rea) and the actus reus( the act itself) of the defendant before conviction can take place.One question still run through my mind and its wether it is still necessary to be wasting the time of the court asking if the defendent still have the mental element when the act of the defendant can be visible before the court.
In the case for robbery,it is reguires proof not only that the defendant intended to steal but also that he intended to use force on a person or to put a person in fear of force in order to steal.
My arguement here is that since the act itself has been accertened,is it necessary to be looking further to know whether he has the mental element?It could be that the defendent had no prior intention or motive of stealing at that moment but it happened in a flash,could he be said that mental element existed in his mind.
Again what happens if it is something over his mind that he(the defendant )had no control over,can the court still convict with mens rea?
I personally think that mens rea should be discarded by our court once the actual event has been assertained..
Uddo I liked your post but I have to disagree with you.
ReplyDeleteMens rea means guilty mind is a latin phrase.
Most true crimes will require proof of mens rea. Where mens rea is not required the offence is one of strict liability. There are three main levels of mens rea:intention, recklessness and negligence.
1. Intention
Intention requires the highest degree of fault of all the levels of mens rea. A person who intends to commit a crime, can generally be said to be more culpable than one who acts recklessly.
Intention can be divided into direct intent and oblique intent.
Direct intent can be said to exist where the defendant embarks on a course of conduct to bring about a result which in fact occurs.
Oblique intent can be said to exist where the defendant embarks on a course of conduct to bring about a desired result, knowing that the consequence of his actions will also bring about another result.
You can check the objective and subjective test of the jury in the following cases : DPP v Smith [1961] AC 290 , R v Hyam [1975] AC 55 , R v Hancock & Shankland [1985] 3 WLR 1014, R v Nedrick[1986] 1 WLR 1025 , R v Woollin [1999] AC 82, R v Moloney [1985] AC 905.
2. Recklessness
ReplyDeleteTo be recklessness is to take an unjustifiable risk. A defendant is therefore not reckless if he took a justifiable risk.
The justifiability of the risk is assessed objectively ie would the reasonable mar regard taking the risk as unjustifiable? If the risk was objectively justifiable D is not reckless
If the risk is objectively unjustifiable then the next step is to ask whether the recklessness is assessed subjectively or objectively.
a)Subjective recklessness
D can be convicted only where the prosecution can prove D foresaw the risk of the prohibited result according to the definition of the offence and nevertheless took the risk. It is sometimes referred to as advertent or conscious risk taking (Cunningham [1957] 2QB 396)
b) objective recklessness-Caldwell [1982] AC 431 The House of Lords held that a person is reckless as to whether or not any property would be destroyed or damaged if he does an act which creates an obvious risk that property would be destroyed or damaged and when he does the act he either has not given any thought to the possibility of there being any such risk or has recognised that there was some risk involved and has nonetheless gone on to do it.
The Cadwell test was subject to widespread criticism for being harsh.Caldwell recklessness is capable of causing injustice as it criminalises those who genuinely did not foresee a risk of harm including those who are incapable of foreseeing a risk as in Elliot v C[1983] 1 WLR 939.
Caldwell recklessness was however overruled by the House of Lords in R v G & R [2003] 3 WLR. The H.L held that a person acts recklessly within the meaning of s.1 Criminal Damage Act 1971 with respect to i) a circumstances when he is aware of a risk that it exists or will exist ii) a result when he is aware of a risk that it will occur and it is in the circumstances known to him unreasonable to take the risk. You can also check the the speech of lord Bingham too.
3. Negligence
ReplyDeleteNegligence is a civil concept. If D’s conduct falls below the standard of a reasonable person, he is negligent.
The criminal law bases liability for some minor crimes on negligence (e.g driving without due care) and it also forms the basis of the more serious crime of gross negligence manslaughter
Negligence can sometimes provide a statutory defence where proof is often reversed so that D has to prove that he was not negligent.
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ReplyDeleteUddo sorry if my comment is too big for you to read it but there are notes. I made them when I studied Criminal law! it was one of my favourite modules :)! I also made a bit of research on internet cause I didn't remember all the cases and tests. For me UDDO, is not enough only to show that the defendant had the actus reus. Mens rea is very important too! is very complex to understand it, this is sure- the jury had difficulties too to understand those objective and subjective tests.
ReplyDeleteMy advise is that you should read also the chapter of Coincidence of actus reus and mens rea -If the mens rea is formed but the actus reus is not completed until later and at a time when D no longer necessarily satisfies the mens rea can D nevertheless be convicted? The answer is yes!
AGAIN i am very sorry for my long comment! But i hope that i helped you to understand why MENS REA is very important in order to convict a person for a crime!For me, intentionally killing is more serious than recklessly killing and recklessly killing is more serious than negligently killing.