Men's Rea | Free Criminal Law Essay

"If we are to accept the proposition that motives, no matter how creditable, are irrelevant, we must also accept that in order to establish mens rea, the prosecution has merely to satisfy the court that the defendant possessed the specified mental state toward the required actus reus. However, such a position fails to acknowledge that motive often drives intention. Discuss

The law of England and Wales

The law of England and Wales has always discarded the relevance of motive in determining the liability of a defendant. This dismissal has been seen and argued to be unequivocal. All the prosecution must show is that the defendant possessed the specified mental state or mens rea towards the required actus reus. This approach, however, as the title suggests, fails to take account of the way that the elements of motive and intention and so intrinsically linked as to make a dismissal of motive not only futile but almost naive. As the title suggests, motive drives intention. Therefore intention is a manifestation of motive. Therefore it is one thing to argue that what must be proven to establish liability is intention as opposed to motive, and another thing altogether to argue that motive, no matter how creditable, is irrelevant.

This essay proposes to call attention to the way that the law, despite its unequivocal dismissal of the relevance of motive towards liability, takes account and even integrates the element of motive into the definition of many offences. To this end, the essay shall show how the distinction between motive and intention is blurred, both on a legal and a literal level. There is not a clear cut distinction as much as an overlap in the definitions. In certain situations, therefore, what is meant by motive and intention are one and the same thing.

Take the example of X who picks up a gun and presses the trigger intending to (a) hit y, (b) cause y's death and (c) marry y's girlfriend. In this case x has intended all three of these consequences by pressing the trigger. At the same time, however, it can be said that marrying y's girlfriend was the motive. In this case, then, x's motive and x's intention can be seen as one and the same thing. JC Smith puts forward the view that the reason why intention in this case is "considered merely a motive is that it is a consequence ulterior to the mens rea and the actus reus" . In other words, what the prosecution has to show is that when x pressed the trigger he intended (a) and (b): that is, to hit y and kill him. It is irrelevant that the reason why x wanted to kill y was to marry his girlfriend. It is no part of the crime. X may therefore be convicted without any evidence as to motive whatsoever.

The problem, however, arises when it becomes clear that the law's approach is not always consistent. JC Smith gives the following example:

If D dismisses E, an employee, who has given evidence against him, in accordance with the terms of E's contract, D will be guilty of contempt of court, it is said, if his 'motive' was to punish E for his evidence but not if it was for any other reason eg incompetence or redundancy. Consistency in terminology would suggest that in such a case we should speak of intent or purpose rather than motive. For example, if this variety of contempt were to be defined, the definition might say, 'with intent to punish the witness' .

It is submitted that JC Smith here exposes the way that the law does in many instances take the concept of motive into account. In this example, in fact, the motive behind D's action is the most critical issue as regards his liability. What JC Smith then goes on to suggest is that in order to maintain consistency, the law must rephrase the law so as to apply a consistent terminology. But clearly there is no essential difference between having 'intent to punish the witness' and having 'the motive of punishing the witness'. Consistent terminology aside, then, it is clear that in these circumstances the law does nothing less than look directly at the motive behind the defendant's actions.

In fact, American writers Perkins and Boyce take the view that motive is, implicitly, relevant to liability:

Suppose a grave felony is about to be committed under such circumstances that the killing of the offender to prevent crime would be justified by law, and at that very moment he is shot and killed. If the slayer was prompted by the impulse to promote the social security by preventing the felony he is guilty of no offence; if he had no such impulse but acted upon the urge to satisfy an old grudge by killing a personal enemy, he is guilty of murder. The intent is the same in either case - to kill the person; the difference between innocence and guilt lies in the motive which prompted this intent .

JC Smith disputes this view. He takes the view that as long as the person knew of the factors which justified the killing he is not guilty of any offence, regardless of his motive. It is submitted, however, that the law may not be that simple or that clear. In the example granted above, it is submitted that even if it were beyond dispute that the person who carried out the shooting knew of the factors which justified the killing, the prosecution, if the case got to trial, would nevertheless adduce evidence, if such evidence existed, that the killer had a personal grudge against the victim. Now, if JC Smith's approach is correct, what would be the use of adducing such evidence once it is established that the killer knew of the factors which justified the killing? Following JC Smith's approach such evidence would carry no weight as motive is completely irrelevant. Although this might be supported on a theoretical level, it is submitted that on a practical level the court would no doubt consider and attach great weight to evidence of such a grudge. Therefore, even if, as JC Smith puts it, the defence proves that the defendant knew of the factors which justified the killing, the defendant would be found guilty if it could be shown that the motive behind the killing was a personal grudge and not the promotion of social security.

Crime and Disorder Act 1998

Moreover, it is submitted that there are offences where motive is an element of the offence. Such an example is the racially aggravated offence created by the Crime and Disorder Act 1998. The effect of this provision is that any offence included in the Act becomes a racially aggravated offence if "the offence is motivated (wholly or partly) by hostility towards members of a racial group, based on their membership of that group". Quite clearly in these cases motive is not only an element of the new offence, but it is the integral and crucial element which must be proved to establish that the offence has been committed. This clearly undermines the belief that motive is irrelevant to liability.

Another concept operating within the criminal law which can be seen to undermine the view that motive is irrelevant to liability is the requirement of an ulterior intent. This applies when an offence requires there to be an intention to produce some consequence beyond the actus reus of the offence. One such example is burglary. To commit a burglary a defendant must enter premises not only as a trespasser, but also with the intention to commit one of a number of specified offences, such as rape, theft, assault causing grievous bodily harm or doing unlawful damage to the building or anything therein. However, the specified offence need not be committed; the offence is committed as soon as a trespass is committed with the intention of committing the ulterior offence. It is submitted that in cases such as these motive can quite clearly be seen to drive intention. Moreover, in the case of burglary the courts are essentially looking at the defendant's motive at the time he committed the trespass; it is submitted that describing the requirement as intention is merely a question of terminology. This is because, to a certain extent, the law has sought and propounded its own definition of the terms intention and motive. It is submitted that this definition does not fully coincide with the literal definition of these terms, and that the confusion in this area of law stems from this discrepancy. Moreover, the law has sought to exploit the overlap between the definitions of each concept in order to protect the fiction it has created, namely that motive plays no part in the determination of criminal liability. In other words it uses the word 'intention' when it means 'motive' in order to maintain the fiction that motive plays no part in deciding liability.

Moreover, even if one were to momentarily accept the view that motive is never an element of an offence and that as a result motive need never be proved, can it really be said that motive is irrelevant. This is undermined by the fact that motive is often used as a piece of evidence that goes towards establishing the necessary mens rea. In other words, in the example above, evidence as to the fact that x intended to marry y would no doubt be produced to the court in order to suggest that when x pulled the trigger he intended to kill y. Can it be said, then, that motive is irrelevant to liability? People rarely act without motive. As a result evidence as to motive is highly probative. In fact, there would rarely be a situation where the Prosecution would be able to attest specific evidence that when x pressed the trigger he intended to shoot and kill y. Intention is something that the jury would simply have to infer from the facts. In other words, the jury would have to infer that fact that x intended to kill y from the fact that x pointed a gun at y and shot him. Rarely would the prosecution be able to adduce direct evidence in respect of x's inner thought and intentions as this is something that cannot be penetrated or exposed with certainty. In such situations what the prosecution does is adduce evidence of x's motive. Therefore in the above situation evidence of any reason that x had to kill y would suggest that x indeed intended to kill him/her. It can therefore be seen that when proving offences which require the element of intention the crucial pieces of evidence for the prosecution are those relating to motive. It could be argued, then, that far from being irrelevant, motive is often the most relevant and important question of evidence as far as the prosecution is concerned, as it is sometimes the only means of proving the necessary mens rea. This, again, can be seen to undermine the view that motive is irrelevant.

Moreover, motive is often taken into account by the CPS when deciding whether or not to prosecute. Therefore, even if an offence is not justified in the strict legal sense, if the CPS takes the view that justice would be best served by dropping the prosecution due to the fact that the defendant had a very good and honourable motive for doing what he did, then more often than not the charges are dropped.

Another stage where motive is explicitly and overtly considered is at the sentencing stage. Where the law gives the judge discretion as to the sentence, obviously the sentencing judge takes the defendant's motive into account. Where the motive is a good one, the sentence will in all likelihood be more lenient. Obviously, the inverse also applies in that where the motive is a particularly bad one, the sentence will reflect this.

In conclusion then, it is submitted that despite the fact that the law takes the view that motive is irrelevant, we have seen that in reality this is far from true. Motive is often a specific element of the offence and, moreover, in offences which require intention, motive plays an enormous part in determining whether the necessary intention existed or not. In such cases it is quite clear that motive, as the title suggests, drives intention. Although explicitly this is not acknowledged, nevertheless on a more implicit and covert level, the law gives a lot of consideration and attaches a lot of weight to the element of motive at every single stage of the prosecution of an offence.


  • Smith, J.C. and Hogan, B. (2002) Criminal Law, London: Butterworths.
  • Elliott, C and Quinn, F. (2002) Criminal Law, Dorset: Longman
  • Perkins and Boyce, Criminal Law (3rd edn)