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Published: Fri, 02 Feb 2018

’Actus non facit reum, nisi mens sit rea’

translated in « an act does not make a person guilty, unless the mind is guilty [1] »

or blameworthy is the base of the actus reus and mens rea doctrine. « Mens

rea »  or « guilty mind » is the most difficult to prove of the components of the

criminal liability because ‘guilty‘ , or ‘blameworthy’ can have different

meanings dependant on the offence. An act can be completed but no liability

falls on the defendant if he can disprove mens rea by a good defence or

reasonable mistake.

The difficulty of proving mens rea resides in the fact that you have to draw

conclusions from what the defendant did or said before, during and after the


Mens rea is there to show that the defendant is « doubly guilty » : first, of

committing the actus reus and secondly, of having at the appropriate state of

mind, e.g. mens rea. Mental state is a part of the definition of the offences and

there must be coincidence between the actus reus and the

mens rea.

In the course of this essay we will discuss the meanings of mens rea in

the different offences then see how the law deals with the problems posed by

the definitions, and finally the limits and critics we can address this notion.

Homicide is the generic name for the offences that have for result the

termination of the victim’s life and which is part of the

offence. There are two main homicide offences: murder and

manslaughter. Homicide can only be performed on a person. [2] Mens

rea in homicide is the intention to kill or cause grievous bodily harm. [3] 

Murder and manslaughter have the same actus reus, the difference is the

state of mind of the defendant.

The classic definition of murder has been given by Sir Edward Coke and

states that it is when « A man of sound memory [ … ] unlawfully killeth

within any country of the realm any reasonable creature in rerum natura

under the King’s peace, with malice aforethought » [4] 

‘Malice aforethought’ is when a person intends to cause death or do

grievous bodily harm. Which means that an intention to case serious

bodily harm should only suffice as the mens rea for murder where the

defendant has also recognised that death is a real risk of his actions.

The use of the ratio of Hyam, a subjective test, developed in Hyam v DDP [5] 

facilitates the proof of the fact that the defendant’s state of mind is appropriate

to the offence he committed.

In that case, D who was the lover of J, became suspicious of his relationship

with B. She went to B’s house, poured petrol through the letter-box, and lit it,

causing a serious fire. B’s two daughters died in the fire, and D was charged

with murder. Her defence was that she intended only to frighten B and had

not intended to kill anyone. She was convicted of murder.

Lord Hailsham LC said it was sufficient for murder that D knew there was ‘a

serious risk of death or grievous bodily harm’ and went on to commit the acts

with the intention of exposing a potential victim to such a risk and all agreed

that foresight was as good as intention.

Some particular points arise from here. What happens when a death

occurs, and the defendant does not have the appropriate mens rea? Or

when the cause of the death can be inferred to special circumstances?

Manslaughter can be used to reduce charges in murder in case the

defendant does not have the mens rea required for murder. Manslaughter

can be defined as « The crime of killing a person without intention to do

so. » [6] There is actually no mens rea in the death itself, but the underlying

action was intentional. There are two types of manslaughter. Voluntary

manslaughter is a murder conviction that has been downgraded in

accordance with special circumstances; loss of self-control, diminished

responsibility by reason of abnormality of mind, or pursuance of a

suicide pact.

Prosecution often uses recklessness or knowledge as a means of proving the

particular mindset of the defendant.

Recklessness can be defined as the « deliberate taking of an unjustifiable risk.» [7] 

In Caldwell [8] an objective test is used, on the basis of the subjective one used in

Cunningham [9] to prove that the defendant acted recklessly by taking an

unjustifiable risk and by foreseeing some harmful consequences and

nonetheless doing it.

The notion of concurrence that belongs to the defence of mistakes in homicide

has been criticised by authors and judges. There are two types of concurrence:

temporal concurrence where the mens rea and the actus rea occur at the same;

and motivational concurrence, where the mens rea motivates the actus reus.

The defendant’s mental state should definitely concur with the harm addressed

by the definition of the defence. This should have been applied to Saunders and

Archer [10] and Pembliton [11] . In Saunders and Archer, case where

A, intending to kill his wife gives her a poisoned apple, and she, being ignorant

of it, gives it to a child against whom A never meant any harm, and the child

eats it and dies, it will be ruled as murder against the child even though, if

applying the concurrence, he would have been charged with attempted murder

of his wife.

In Pembliton, the defendant should probably have been charged with some

form of assault and battery or an attempt to commit grievous bodily harm as

opposed to criminal damage.

There has been some critics about the Ghosh test, especially by K. Campbell

who in his book accuses the test of confusing the state of mind, mens rea, and

the defendant’s standards of honesty. [12] 

Another remark we can make is the necessity or not for the belief to be a

reasonable one especially in the domain of sexual offences. For example the

Director of Prosecution v Morgan [13] case of a rape where the defendants

believed they had the consent of the victim. The jury stated that the belief

should be an honest and reasonable one. The definition of the rape offence is

‘having sexual intercourse with a woman with intent to do so without her

consent or with indifference as to whether or not she consented.’ The defence

presented that it could not be committed if that essential mens rea were absent.

Accordingly, if an accused believed that the woman had consented, whether or

not that belief was based on reasonable ground, he could not be found guilty of

rape. This is a critic of the need for the belief to be based on reasonable

grounds or not.

In theft, mens rea is the fact that the defendant « appropriated the

property dishonestly and did so with intent to permanently deprive the owner of

his property.» [14] Subsection 2 states that the view of gain is « immaterial »

which means that if the defendant steals something but does not take it for

himself he is still guilty of theft. In fraud, false representation is part of the

mens rea required

The main issue is that proving dishonesty is really difficult. The Theft Act

1968 and the Fraud Act 2006 and its sections 1 and 2 deal with actus reus and

mens rea in theft. In fraud, ‘dishonesty ‘ is part of the definition.

But proving dishonesty is hard. That’s when the twofold Ghosh [15] test is used.

We can also point the fact that there is an overlap between ‘dishonesty’ as a

state of mind that requires proof of the defendant’s state of mind, and as a

concept describing the wrong done as in moral evaluation which is perpetrated

by case-law. Ghosh is a case of obtaining by deception, contrary to section 15

of the 1968 Theft Act. The first part of the test is ‘whether what was done was

dishonest according to the ordinary standards of reasonable and honest

people? If not, then the defendant is not guilty. If yes, however, then we have to

ask ourselves ‘did the defendant realize that reasonable and honest people

regard what he did as dishonest?’ [16] 

According to the section 2 of the Fraud Act 2006, mens rea is satisfied by proof

that he knew the representation was or might be false: s2(2), and that he acted

dishonestly: s2(1)(a), with intent to cause gain or loss: s2(1)(b). There is no

onus on the prosecution but they have to introduce some evidence. In Mandrey

and Wooster [17] street sellers selling perfume for 25p were saying « you can go down the road and buy it for 2 guineas in the big stores » which results in false

representation. The police checked on certain stores but it was proved in cross-

examination that they didn’t go to Selfridges but the judge stated that the

prosecution had to only present some evidence of the falsity of the

representation. In Peters [18] , case of conspiracy to defraud, the High Court

rejected considering dishonesty as a separate element of the offence and stated

that dishonesty has to be defined as ‘an aspect of the use of dishonest means’.

There has been some critics about the Ghosh test, especially by K. Campbell

who in his book accuses the test of confusing the state of mind, mens rea, and

the defendant’s standards of honesty. [19] We can also ask ourselves about the

definition of knowledge and to what extent it should be incorporated in the

burden of proof of the prosecution, in fraud.

Mens rea in burglary is the intention of the defendant to commit one of

the ulterior offences required for s s.9(1)(a) burglary; and for a s.9(1)(b), the

mens rea of the ulterior offence must be proved. He enters as a trespasser a

building or part of it with the intention of being such, and who has the

knowledge of being a trespasser with views to steal anything in the building. [20] 

It must be present at the entry in the first case and only at the time of the

commission of the ulterior offence in the second case. The defendant must

know that he is entering as a trespasser.

You have to prove the entry into the building and the view to steal anything.

Gain is immaterial, as in theft. But what if the defendant’s intention is

conditional? We can ourselves as well if there really is a need for the offence of

burglary at all.

the main bases to the decisions in burglary cases are the Theft Act 1968 and

Criminal Damage Act 1971. R v Collins [21] is the leading case in proving

burglary. In R v Walkington, the defendant was accused of burglary, entering

the counter are in a store, opening the till and finding it empty. We can can

wonder whether the counter area can be naned as ‘part of a building’ and

whether the accused entered it as trespasser, with obvious intent to

steal’therein’.In that case, it is implied that the managers had prohibited

customers from entering the counter area, and that the accused knew of the

prohibition [22] He got charged of burglary contrary to section9(1)(a) and (2) if the

Theft Act 1968 because he trespassed with intent to steal therein.

In Attorney General’s References [23] the defendant entered a grocer’s house,

with intent to steal, only if he found something worth taking. The judge

decided that it was no defence to show that he did not intent to steal anything

specific. The issue of conditional intent can be perceived as a red herring as the

defendant can be convicted then of attempted burglary. But why having a

burglary offence when we could charge with either the ulterior offence

committed; or of an attempt to commit the ulterior offence.

Not to mention the limits to mens rea such as mental illness, intoxication or

automatisms. Is it fair to assimilate intention with foresight of the consequences

of an act, unlawful may it be?

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