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Principles - mens rea - a definition

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Mens Rea, the guilty mind

From the Latin, Actus non-facit reus nisi mens sit rea

Definition of mens rea

The term mens rea refers to the mental element in the definition of a crime. This is not some abstract mental process; it refers to specific words in the charge or indictment.

These words include 'intentionally', 'knowingly', 'recklessly', 'maliciously', or 'negligently',


'suffering', ‘dishonestly’ and so forth.

Each word has a different meaning, it is not possible to simply identify them as mens rea and leave it like that.


If Parliament intended mens rea in an offence it will often include mens rea words

somewhere else in the statute.


The courts assume that if Parliament deliberately left the word out, the offence is one of strict liability by ‘necessary implication’.

Transferred malice

If the defendant, with the mens rea of a particular crime, does an act, which causes the actus reus of the same crime, he is guilty, although the result, in some respects, is an unintended one.

Latimer (1886)

D, a soldier during an argument with another man C in a pub, took off his belt swung it at C, missed and wounded the landlady V.

Held: the intention to strike C was transferred to V under the doctrine of transferred malice.


When malice is not transferred.

However, if the defendant, with the mens rea of a particular crime, does an act that causes the actus reus of another crime, he will not be liable under the doctrine of transferred malice.


Pembliton (1874)

D was ejected from a pub and became involved in a fight. He threw a stone at the group of men he had been fighting, missed them but broke the pub window behind them.

Held: His "malice" in intending to strike another person could not be transferred to an intention to break the window.

Not guilty

Coincidence of actus reus and mens rea

See contemporaneity, here

Ignorance or mistake of a civil law obligation can negate mens rea of a crime

Ignorance of the criminal law is no defence, but a mistake of civil law may be a defence to a criminal charge, provided it negates the mens rea for the offence in question

Mens Rea - what it is.

Mens Rea (the guilty mind or wrongful intention) differs from crime to crime.

The  intention of a criminal committing a theft is different from that of a rapist.

To be criminally liable, a person must have intended to do wrong or have acted in a reckless and negligent manner knowing that his actions would cause the result complained of. 

A terrorist, who puts a bomb on a plane and kills all the passengers, would have no defence by claiming that he did not intend to kill anyone, and he only intended to damage the plane. Such an act is so reckless, and the likelihood of death so foreseeable, that it is inferred that the criminal intention is present.

When considering murder, the House of Lords has ruled that intent to kill or inflict serious bodily harm is necessary to establish 'malice aforethought'.

Malice aforethought means 'intention'.  However, foresight of the probable consequences of an act does not automatically mean the consequences were intended.  

A line of cases demonstrates this:

R v Moloney (1985) HL

D received a friendly challenge by his stepfather to see who was "quicker on the draw" with shotguns. Both men were drunk, but good friends. Moloney shot and killed his stepfather, although he claimed he had no intention to do so and did not appreciate that the gun was aimed at the victim.

Held: Moloney was not guilty of murder as a person only intends the result of an act if his purpose is to bring about that result. As Moloney did not intend to kill his stepfather, he was not guilty of murder.

Guilty of manslaughter.

R v Hancock and Shankland (1985) HL

The defendants (DD) were striking miners. They pushed blocks of concrete from a bridge above a road, which landed on a windscreen of a taxi carrying a miner to work. The concrete killed the driver of the taxi and the defendants were charged with murder. They claimed that they had not intended to kill or injure anyone, but merely to block the road.

Held: In such cases the probability of death or injury arising from the act done is important, because "if the likelihood that death or serious injury will result is high, the probability of that result may be seen as overwhelming evidence of the existence of the intent to kill or injure."

Guilty of manslaughter.

R v Nedrick (1986) HL

The court considered that in such cases a person would only be guilty if his actions are virtually certain to result in death or serious harm, regardless of intent.

R v Woollin [1998] HL

The House of Lords approved Nedrick, and made a few refinements to the direction a judge should give the jury.

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