What is the difference between ‘subjective’ and ‘objective’ mens rea? Why does the difference matter?
The terms subjective and objective mens rea refer to two methods of assessing mens rea. Mens rea simply means guilty mind and denotes fault or culpability of an offence. The state of mind is verboten (explicit or implied) in the meaning of any offence. The main forms of mens rea are intention, recklessness and negligence. Knowledge is sometimes regarded as a form of mens rea as well, however, it is mostly considered to be equivalent to intention, in terms of culpability. Therefore, when establishing mens rea the offence elements are classified as being either subjective or objective requirements on D’s state of mind. In this essay, intention will be the main focus of the offence elements used to differentiate subjective and objective mens rea as it is the most serious standard of mens rea.
In simple terms, subjective mens rea asks what was in the defendant’s mind. The term subjective is used to indicate a mens rea requirement, which is, viewing internally to the mind of D. For instance, intention can be assessed subjectively when the defendant intends a consequence and if he acts intending to produce that consequence. Herring wrote that depending on the offence element, a subjective state of mind would satisfy the following questions: Did D intend the result? Did D realize, recognize, want, or aim to achieve the result? Did D foresee the result?
A case example to further explain this point is Moloney, where the defendant killed his stepfather by shooting him with a gun pointed at the step father while they were drunk. D’s defence was that it was not his aim to kill his father, thus since his claim does not answer positively to the intention question for the subjective test, the court decided that there was no direct intention. However, intention could be deduced where the defendant foresaw the result as a likely consequence of his conduct, this would satisfy the mens rea of recklessness. This shows that to satisfy the subjective mens rea, the prosecution must prove that the defendant intended the result or foresaw a risk of the natural consequence. It is not a matter of what D should have thought of or what a reasonable person would have done instead.
While, the term objective is used to indicate a mens rea requirement that does not involve eyeing internally into D’s mind but instead is detecting externally. In simple terms, objective mens rea asks what would have been in the mind of a reasonable person. For example, intention can be assessed objectively when D had an oblique intention to a particular crime. Oblique intention refers to a situation where the object is almost but not quite certain, D foresees it as virtually certain and then the jury may find intention.
In Woollin, where D is charged with murder and the simple direction is for the jury to decide if D intended to kill or cause bodily harm is not enough. Thus, the jury should be aware that they are not allowed to find the necessary intention unless they believe that death or grievous bodily harm was a virtual certainty as a consequence of D’s actions and that the consequence was foreseen by D as a virtual certainty. The decision of whether the D intention was indirect being one for the jury’s to reach on a consideration of all the evidence. Objective mens rea expresses the conduct of the defendant as being lower than the standards of expected behaviour from a reasonable person in that situation as well as the possibility of certainty for a particular result to occur following the defendant’s act.
To satisfy the question, why does the difference between subjective and objective mens rea matter? First and foremost, there is no mens rea definition in a criminal statute, thus the prosecution uses case laws when dealing with new cases. This makes the law controversial sometimes, thus clear and separate methods or forms of explaining mens rea is necessary. The law needs to be comprehensive to make people understand clearly as one is criminally liable for events or consequences which they intended or knowingly risked.
The subjective mens rea is essential in helping to prove people that have committed serious crimes like murder are culpable. It is a simple way of making sure that people don’t get convicted for unexpected or unplanned accidents. It deals with one’s state of mind while performing the conduct and it’s a rather direct way of determining if the defendant is guilty of the crime since once intent is found, the subjective mens rea has been satisfied.
The difference between the subjective and objective mens rea also matters because the objective mens rea makes it harder for people to avoid being convicted of a crime by simply saying they didn’t intend to perform such act. The objective mens rea digs deeper into the extenuating circumstances as well as evidence surrounding the defendant at the time the act was being performed.
Lastly, the dissimilarity also matters because it is used to assess blame and responsibility of respective offences. Horder wrote that the principle of mens rea expresses blame and responsibility by stating that defendants should be held criminally liable only for events or consequences which they intended or knowingly risked. The term knowingly risked explains the objective mens rea in terms of the defendant’s foresight about the virtual consequence of his conduct at the moment.
In conclusion, subjective mens rea questions what was in D’s mind while objective mens rea questions what would have been in the mind of a reasonable person. Also, the difference between these two matters because it helps give clarity to why or if D has committed a crime or not.
- J Child and D Ormerod, Smith, Hogan and Ormerod’s Essentials of Criminal Law (3rd edn, Oxford University Press 2019) 82-85
- J Herring, Concentrate Criminal Law (6th edn, Oxford University Press 2018) 32.
- J Horder, Ashworth’s Principles of Criminal Law (8th edn) 154.
- Moloney  AC 905.
- Woollin  AC 82.
 J Child and D Ormerod, Smith, Hogan and Ormerod’s Essentials of Criminal Law (3rd edn, Oxford University Press 2019) 82-85
 J Herring, Concentrate Criminal Law (6th edn, Oxford University Press 2018) 32.
  AC 905.
  AC 82.
 J Horder, Ashworth’s Principles of Criminal Law (8th edn) 154.
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