Elements of an Offence: Mens Rea

• Introduction
• Objectives
• Main Content
• Definition
• The Principle of law
• Intention
• Knowledge
• Recklessness
• Conclusion
• Summary
• Tutors Marked Assignment
• References

Introduction

A crime consists of both external element (actus reus or overt act) and a mental element (mens rea or guilty intent). Accordingly, a person is deemed not liable for his/her conduct unless the prescribed state of  mind concurs with the proscribed event or state of affairs. Hence the axiom: actus non facit reum, nisi mens sit rea (meaning, an act does not make a man guilty of a crime unless his mind be also guilty). As Lord Hailsham explains, what is reus is not the actus but the man and his mind respectively. Certain common words are used to donate the mental element of an offence, e g ‘knowingly’, ‘wilfully’, ‘recklessly’ ‘maliciously’ etc. We shall be learning more of these in this Unit

Objectives

When you have studied this Unit, you should be able to:

1. Identify the mental elements in a crime
2. Describe mens rea as an element of a crime
3. Identify common words or expressions which connote both the physical and the mental elements of crimes e g possession, permit, appropriate, cultivate, abandon etc.
4. Critique the terms actus reus and mens rea

Main Contents

There are two elements of an offence. These are mens rea and actus reus. To constitute a crime, there must be a causal link between both.

Definition of Mens rea

Mens rea is a state of mind. No single word can successfully denote it  and there has been no consistency in the choice of descriptive words concerning it. It may take any of the following forms

Intent to do the actual wrong done

An intent to do unlawful act though not the actual wrong done e.g X shoots at B intending to kill him, but hits C

A complete disregard of the consequences of dangerous act. An example is where Z throws bricks into a busy street without warning the passersby.

Gross negligence and disregard of the consequence Negligence, e.g. Y, a railway signal man leaving his post, without good cause

An intent to do something wrong morally though not a wrong in law. Example is where one ‘steals’ an object, which turns out to be his/her property

Aguda subsumed the general principle of mens rea into three categories, namely:

An intention to do the act forbidden by law

Recklessness   as   to   whether   or   not   a   legally   forbidden consequence is brought about.

Negligence in so far as negligence can be required as a state  of mind

Doctrine of mensrea

As a general rule, a person cannot be convicted of a crime, unless it is proved that he/she has a guilty intent. (Fowler v Paget) This is enshrined in the principle: actus reus non facit reum nisi mens sit rea. The principle seemed to have enjoyed some elements of sancrosanctity such that Cockburn, CJ could say that to constitute an offence, there must be a guilty mind and that “the principle must be imported into the statute”. In line with this thought, the court in R V Hibbert (1867) held that the ’Knowledge’ that a girl seduced was in possession of her parents was one of the conditions precedent to liability

Probably, the principle was an off shoot of the dichotomy between law  but it morality and has not always been true; for there can be legal guilt without a moral guilt as you already learned in your discussion of the Nigerian Legal System. For example, offences of absolute liability, e.g. public nuisance do not require mens rea.

The doctrine of mens rea therefore means no more than that an offence is constituted only if the perpetrator has intentionally brought about the consequence, which the law forbids, or in some cases has brought about such a consequence recklessly or negligently.

The idea is not to punish one for whatever consequence(s) which may flow from one’s act or omission but only for such consequence(s) of one’s conduct as one actually foresaw or which one should have foreseen.

Self Assessment Exercise

Examine the following cases and point out the following:

• what the persons named intended;
• what he/she did or omitted to do;
• the direct result of his/her act or omission;
• the consequences
• extent of his/her

Case 1:Chinedu lights a match, maliciously sets Ngozi’s picture on fire; the fire spreads, burning down the whole house.

Case 2: Uncle Dan went into the ship, where it berthed in Port Harcourt, stole some rum. As he rushes out of the ship, the bottles fell; the bottles were broken and the liquid caught fire, setting the whole ship ablaze.

Let us learn a little more on the components of mens rea.

Intention and motive

It is important to distinguish motive from intention

Intention

Intention may mean the following:

Willingness to bring about something planned or foreseen The state of being set to do something

The purpose or design with which an act is done or omission made Foreknowledge of the act or omission coupled with the desire of it, such knowledge and desire being the cause of the act or omission

According to Glanville William, an act or omission is intentional if and in so far as it exists in idea before it exists in fact, the idea realising itself in the fact because of the desire by which it is accompanied.

Upon analysis, intention manifests in the following:

Fusion of thought and volition

Foresight that certain consequence will flow from an act or omission Desire (or wish) for that consequence working as a motive, which induces

the act

Turner says that Intention denotes the state of mind of the person, who not only foresees but also desires the possible consequences of his/her conduct.

Specific Intention

The statute creating an offence may specify particular intent. See for examples:

Criminal Code, section 316 (murder) and

Penal Code section 221(a) (culpable homicide punishable with death)

Both sections have provided intention for murder or culpable homicide punishable with death, to wit: the intention to kill or cause injury likely to cause death. See R v Vickers (1957)

Criminal Code section 508 and Penal Code section 95 also proscribe under pain of punishment, the offence of attempts to commit offence.

Criminal Code section 383 (stealing) and Penal Code 286 (theft) require, for their intention, that the taking or appropriation must be fraudulent  or dishonest

Intention and Motive

Unless otherwise expressly declared, the motive by which a person is induced to do or omit to do an act or to form an intention is immaterial so far as regards criminal responsibility.

Sometimes it is necessary for the prosecution to prove it in order to succeed. This is because evidence of motive is always admissible in order to show that it is more probable that the accused committed the offence charged

A good motive may mitigate sanction while a bad motive may aggravate  it.

Experts:

There are exceptions to this general rule. Motive may be a good defence for instance where Dike does an act or makes an omission reasonably and in good faith in order to save life or protect property, which destruction or loss would have been greater evil.

Statute may expressly or by implication require motive as an element of an offence. For an example, the Criminal Code, section337 and the Penal Code, section 249 seek to punish ‘whoever administers to any person any poison etc in order to facilitate the commission of an offence.

Proof

Intention is incapable of positive proof. Its proof may be by way of the following:

Confession.

Presumption, e.g. that one intends the natural and probable consequence of his/her act or omission.

Inference from facts which are proved or from surrounding circumstances.

Statutory prescriptions, e.g. Penal Code sections 19(1) and 27

Test

Suppose Ado stabs Teddy “to make him feel pain” or Haruna scribbles a libel against Kolo and posts the letter with the intention that it may be read but the letter got lost in transit or was not read.

How is intention to be imputed?

Is the test to be used subjective or objective?

See the important case of DPP v Smith (1960). In that case the Police suspected D of stealing or of being in possession of stolen goods; they stopped him but he refused to stop. One of the Policemen clung to the vehicle. D then drove zig zag in order to shake off the Policeman and avoid arrest. The Policeman drops off and is killed by an on coming vehicle driven by Y

The trial Judge, Donovan, J, applying the Objective test, directed the jury as follows:

If you are satisfied that he must as a reasonable man have contemplated that grievous bodily harm was likely to result to that officer and that such harm did happen and the officer died in consequence, then the accused is guilty of murder..

The Court of Appeal substituted objective, for subjective test, affirming that what was material is what the accused contemplated, not what a reasonable man would.

On further appeal, the House of Lords held that what was material was:

Whether the accused was unlawfully and voluntarily doing something to someone. It matters nothing what the accused in fact  contemplated as the probable result or whether he ever contemplated at all, provided he was in law responsible and accountable for his actions. In  their Lordships opinion, the only test available is what the ordinary man would, in all the circumstances of the case, have as the natural and probable result.

Conclusion

Mens rea means a guilty intent, It is a state of blameworthiness required in a crime. Except where statute expressly provid3es otherwise, a person cannot be convicted for a criminal offence unless it is proved that he has a guilty intent

• Summary

Guilty intent may take any of the following forms:

1. An intent to do the actual wrong done
2. An intent to do an unlawful act, though not the actual wrong done.

Tutor Marked Assignment

To what extent does DPP v Smith represent or depart from the Nigerian law.?

Be guided by the Criminal Code section 316 and the Penal Code, section 221.

REFERENCES

• Slapper; G   :      The   English   Legal  System,    7^th   Ed,   Cavendish Publishing Ltd India
• Jefferson , M FGN: - The Criminal Code

-           The Penal Code

• Molan; The Constitution of the Federal Republic of Nigeria