Judicial Exploitation of Mens Rea Confusion, at Common Law ...
Understanding mens rea
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Transcript of Understanding mens rea
The National University of Advanced Legal Studies
670670670670 . . . .
II Semester .Semester .Semester .Semester .
Understanding Mens rea In the light of Intention, Knowledge & Motive
Gokul Nair C.C.
Understanding Mens rea
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Introduction
There is no term fraught with greater ambiguity than the venerable Latin phrase that
haunts * Criminal Law: mens rea.1
Mens rea or the mental element in crime is one of the most important concepts of Criminal Law.
A literal translation of the term is ‘guilty mind’, but it is said that there is no need for the accused
to feel morally guilty or to know what he does is morally blameworthy as the Courts-Martial
Appeal Court said that ‘mens rea does not … involve blameworthiness’2.
The term mens rea in criminal law is used to describe the various mental states that accompany
an actus reus. The working definition of mens rea as provided by Smith and Hogan gives us a
basic idea about the concept in its modern sense.
“Intention, knowledge or recklessness with respect to all elements of the offence together with
any ulterior intent which the definition of the crime requires.”
The ‘elements of the offence’ as mentioned here are used to indicate the consequences and the
circumstances of the acts of the accused i.e., the actus reus, and the words ‘intention’,
‘knowledge’, ‘recklessness’, etc. are used to denote the subjective mental states of the accused.
In order to constitute a crime there must be a mind at fault. It is said that no act in itself is
criminal, as the act becomes criminal only when the actor does it with a guilty mind.
For example, causing an injury to a person in exercising of your right of self-defence is not a
crime, but the moment an injury is caused with an intent to take revenge, the act becomes
criminal.
Therefore, the underlying principle of the doctrine of mens rea is expressed in the familiar Latin
maxim actus non facit reum nisi mens sit rea – the act does not make one guilty unless the mind
is also guilty.
1 George Fletcher, Rethinking Criminal Law, 1978, p. 398 * the word ‘Anglo-American’ has been removed 2 Dodman [1998] 2 Cr App R 338
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As far as the mental states are concerned, there is no single state of mind that must be present as
a prerequisite for all crimes. Mens rea takes on different forms in different surroundings, as what
is evil intent for one kind of an offence may not be so for another kind. The complexity has been
increased by the use of words such as malice aforethought, intention, recklessness and
negligence to indicate the elements of mens rea. Therefore, in order to appreciate the meaning of
mens rea it is necessary to have a clear understanding of words like intention, motive,
knowledge, etc.
Determining mens rea:
The principle of mens rea defines the mental states required for criminal responsibility.
Generally speaking, commentators accept different mental states that qualify as mens rea:
General, specific, and Transferred Intent.
GENERAL INTENT
General Intent refers to the actus reus, that is, the intent to commit the act required in the
definition of the crime. For example, the required act in theft is the taking and carrying away of
another’s property and in rape, sexual penetration.
SPECIFIC INTENT
It designates the requirement to do something in addition to the actus reus. For example, in
house breaking, an intent to commit a crime after breaking and entering in and in theft, the
intention to steal in addition to taking and carrying away. Rape and Homicide are general intent
crimes as its mens rea requires no more than the intent to cause a particular result.
TRANSFERRED MALICE
Refers to cases wherein the offenders intend to harm one victim but instead harm another. In
such cases the offenders are held responsible for their acts though their intended victims were not
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injured, by transferring the malice they had towards the intended victims to the actual victims
who suffered harm. But this transfer is not made if the intent was not to accomplish similar harm.
For example, an intent to assault does not transfer to the breaking of a window by throwing a
rock intended to injure the victim. Kurien v. State of Kerala and r. v. Pembliton make this
position clear.
Intention as mens rea:
Intention is a term which is very difficult to define. It is a common term known to everyone, but
it can be variously used to mean the object, purpose, the ultimate aim or design behind doing an
act. To intend is considered to have in mind a fixed purpose or desire to bring about a
contemplated result or objective. The noun ‘intention’ in its present form is used to denote the
state of mind of a man who not only foresees but also wills the possible consequences of his
conduct. Intention, therefore, is usually used in relation to the consequences of an act, and not in
relation to the act itself.
If one person throws another from a high tower or cuts off his head it would seem plain that he
both foresees the victim’s death and also desires it: the desire and foresight will also be the same
if a person knowingly leaves a helpless invalid or infant without nourishment and it results in
death. It will be noted in all such cases that the man had intended the desired act. Everything
which is the natural and probable consequence of the act must be taken to be the intention of the
accused.
Intention is that shade of guilty mind which generally results in most severe form of punishment
to the wrongdoer, as compared to all the other types of mens rea. The main reason behind this
notion is that the prisoner desired to do an act which he knew or was aware that it was contrary
to law.
The idea of intention in law is not always expressed by the words ‘intention’, ‘intentionally’ or
‘with intent to’. It is expressed also by words such as ‘voluntarily’, ‘willfully’, ‘deliberately’ or
‘knowingly’, etc.
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Knowledge as mens rea:
Similar to that of intention, knowledge is also used to impose a requirement of mens rea.
Knowledge is awareness on the part of the person concerned, indicating his mind. A person can
be supposed to know when there is a direct appeal to his senses. In other words, knowledge is the
awareness of the consequences of the act. It is the state of mind entertained by a person with
regard to existing facts which he has himself observed or the existence of which has been
communicated to him. In many cases, intention and knowledge merge into each other and mean
the same thing, more or less, and intention can be presumed for knowledge. Knowledge is
different from intention by the fact that it does not have the element of ‘desire’. This means that
a person may be aware of the consequences of his act, though he may not intend to bring them
about. Knowledge as contrast to intention, signifies a state of mental realization in which the
mind is a passive recipient of ideas or impressions arising in it, while intention signifies a
conscious state of mind in which mental faculties are summoned into action for the deliberate,
prior conceived and perceived consequences.
Even if the person didn’t desire to bring about the consequences, but, had knowledge that those
consequences might follow, he will also be held responsible and will be convicted; though not
like the person who intended to do it. Thus, knowledge is on a slightly lower plane as compared
to intention as far as awarding the punishment for an offence is concerned.
For instance, A person is guilty of handling only if he knows or believes the goods to be stolen.
The Criminal Courts recognize several degrees of knowledge
Actual Knowledge:
The principal authority is Roper v Taylor’s Central Garages(Exter) Ltd [1951] 2 TLR 284(DC).
Devlin J said that this type of knowledge is when the accused knows for a fact that something
exists or is true.
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Willful Blindness:
Lord Bridge in Westminster CC v Croyalgrange Ltd [1986] 1 WLR 674 said that knowledge
could be based ‘on evidence that the defendant had deliberately shut his eyes to the obvious or
refrained from enquiring because he suspected the truth but did not want to have his suspicions
confirmed’. Although Lord Bridge spoke of ‘inference’, it is arguable that the rule is one of law.
Constructive Knowledge:
This degree of knowledge occurs when the accused ought as a reasonable person to have made
inquiries.
The first type is always covered by ‘knowing’ or ‘knowingly’. The second type is usually
covered, but not always. The third is rare in traditional criminal law but arises when parliament
creates an offence where the accused had reasonable cause to believe.
Intention and Motive
Motive is the reason or ground for an action; whereas, intentions are the will or desire to do that
act to satisfy the motive. In other words, intention is an operation of the will directing a wrongful
act; motive is the feeling which prompts a person to intend a certain thing; i.e., motive is the
ultimate object of the person. For example, if A kills B, the intention is a state of mind which
directs the act which causes death, whereas the motive is the underlying and ultimate object
which the person had in view, like, the satisfaction of some desire such as, revenge, hatred,
vengeance, etc. Motive is not a basis for criminal liability. Criminal law takes into account only a
man’s intention and not his motive. A good motive will not render lawful what is in fact a crime.
If a mother steals food in order to feed her starving child, the act amounts to theft, despite the
fact that the motive for the act was good i.e., to save the life of the child. Similarly, an
executioner may enjoy putting a convict to death because of spite against him, but, this would
not render his lawful act a crime. Thus, motive is not a sine qua non (an indispensable
requisite) for holding the accused liable.
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A good example of this distinction lies in Om Prakash’s case (2003). The apex court, in this
case, held that the motive of crime is not a necessary requirement for conviction. The accused, a
domestic servant, mercilessly, in a cruel manner murdered three out of the four members of a
family and grievously injured the fourth. The court rightly observed that failure to prove motive
is irrelevant in a case wherein the guilt of the accused is proved otherwise beyond
comprehension. In Yunis vs. State of Madhya Pradesh (2003), the Supreme Court held that
where the oral evidence is sufficient to prove the guilt of the accused, question of presence of
motive is irrelevant. However, the evidence of motive is relevant as it throws light on the
question of intention and gives a clue to the crime, and though the prosecution is not bound to
prove motive for a crime, absence of motive may be a factor in consideration of the guilt of the
accused. As stated by the Supreme Court in Basdev vs. State of Pepsu, motive is something
which prompts a man to form an intention.
Knowledge and Motive
Knowledge is awareness on the part of the person concerned, indicating his mind. Motive is
something which prompts a man to form an intention. Knowledge is an awareness of the
consequence of the act whereas motive is the underlying reason behind formation of an intention
which includes knowledge too. From the point of view of dissipating justice, only motive is
differentiated from the intention, since, it is implied that intention in itself contains the
knowledge of the consequences as well.
Mens rea as dealt within the Indian Penal Code
The doctrine of mens rea as such has no application to the offences in general under the code.
The framers of IPC have not mentioned mens rea as such anywhere in the IPC. However, the
doctrine has been incorporated in two ways:
(a). The provisions as to the state of mind required for a particular offence have been added in
the sections by using words like, intentionally, knowingly, voluntarily, fraudulently, dishonestly,
etc., depending upon the gravity of the concerned offence. All these words describe the mental
condition required at the time of commission of the offence, in order to constitute an offence.
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Thus, we can say that these sections point about the importance of mens rea virtually, if not
explicitly.
(b). The concept of mens rea has also been incorporated into the provisions relating to ‘General
Exceptions’ contained in chapter four of the code. This chapter deals with the acts which
otherwise would constitute offences, but, cease to be so under certain circumstances set out in
this chapter. For example, ss.80 and 81 deals with the acts of persons when done without
intention or knowledge would not amount to an offence. The sections 87, 88, etc. again deal with
the absence of intention and/or knowledge to excuse a person of criminal responsibility. Thus,
we can say that this chapter is itself the recognition of the principle of mens rea.
Another example is s.39, defining the term “voluntarily”. According to this section,
“A person is said to cause an effect when he causes it by means whereby he intended to cause
it, or by means which, at the time of employing those means, he knew or had the reason to
believe to be likely to cause it.”
This is followed by an illustration:
“A sets fire, by night, to an inhabited house in a large town, for the purpose of facilitating a
robbery and thus, causes the death of a person. Here, A may not have intended to cause death;
and may even be sorry that the death has been caused by his act; yet, if he knew that he was
likely to cause death, he has caused death voluntarily.”
Thus, it is evident that the Code appreciates the importance of presence of a guilty mind for
fixing criminal responsibility. But, it is essential here to note that the Code has made no
differentiation between intention and knowledge and uses them as convertible terms. For
example, the word ‘voluntarily’ as used in s. 321 (causing hurt) denotes the specific mens rea for
the specific offence. However, at other places, such as, ss. 299 and 300 I.P.C. (culpable homicide
and murder), the two are not synonymously used.
Section 298 makes the uttering of words or making gestures with deliberate intent to wound the
religious feelings punishable under the Act. Yet another variation of the mental element of
intention is knowingly and negligently omitting to do an act. Sections 285, 286, and 287 makes
knowingly or negligently omitting to take sufficient care so as not to cause harm to human life in
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respect of possession of a poisonous substance , fire, combustible matter, and explosive
substances an offence. The Code has nowhere defined the term ‘intention’ although the word has
been used at several places. The Code has used the word ‘voluntarily’ to designate intentional
acts. As stated by Morgan and Macpherson:
The Code makes no distinction between the cases in which a man causes an effect designedly,
and cases in which he causes it knowingly, or having reason to believe that he is likely to cause
it. If the effect is a probable consequence of the means used by him, he causes it ‘voluntarily’,
whether he really meant to cause it or not. He is not allowed to urge that he did not know, or was
not sure that the consequence would follow; but he must answer for it just as if he had intended
to cause it. The English law, by means of an artificial presumption, viz., that a man is presumed
to intend the natural or probable consequences of his own act, gives to the words which denote
intention the meaning here annexed to ‘voluntary.’
However, this general or the traditional rule that mens rea is an essential element in IPC offences
is not without its exceptions. The deciding factor on whether mens rea is required or not,
depends on the language of the statute and the intention of the legislature as gathered from the
statute. Where the legislature has omitted to lay down a particular state of mind as a requisite,
the presumption is such that the omission is deliberate and in such a case, the doctrine of mens
rea will not apply. For example, the offences like, sedition, kidnapping, counterfeiting
government stamps, coins and the like, no guilty mind is required for the offence.
Section 292, IPC makes the selling, hiring, distributing, publicly exhibiting, importing,
exporting, etc. of obscene books, pamphlets, writings, drawings, etc. an offence. In the case of
Ranjit D Udeshi vs. State of Maharashtra, a person was prosecuted for selling a book by the
name Lady Chatterley’s Lover, a popular book written by D.H. Lawrence. The accused pleaded
that he had no knowledge of the contents of the book and hence, did not have the necessary mens
rea. The court rejected his contention and held that in s. 292 of the code, unlike in several other
sections, there was no inclusion of the words like, ‘knowingly’ or ‘negligently’ etc. So,
knowledge of obscenity is not an ingredient of the offence under s. 292. It was held that the
liability under this section was strict and hence, mens rea is not required.
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Bibliography
• General Principles of Criminal Law, K.N. Chandrasekharan Pillai, 2nd Edition
- Determining mens rea
• Criminal Law: Cases and Materials, K.D. Gaur, 6th Edition
- Mens rea, Intention & Mens rea under IPC 1860
• Criminal Law, Michael Jefferson, 7th Edition
- Introduction to Mens rea, Motive & Knowingly
• Kenny’s Outlines of Criminal Law, J.W. Cecil Turner, 19th Edition
- Intention
• Criminal Law, David C. Brody & James R. Acker, 2nd Edition
• O.P. Srivastava’s Principles of Criminal Law, R. Prakash, 5th Edition
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