Intention and knowledge of a crime cannot be of the same type of mens-rea. For example, murder and culpable homicide are intentional and knowledge based respectively. The intention based mens rea places mental element of murder foremost as an intention to cause death. At a lesser degree is an intention to cause a specific bodily injury which the offender knows will cause death of the victim. This is almost the same as the mental element for murder as the offender knowingly causes the bodily injury that it can cause death. As such, the offender is liable to be convicted for murder. Next type of mens rea is a hybrid form combining both subject and objective elements. In this case, the degree of guilt is an intention to cause bodily harm to any individual and this is enough to conclude that the individual intended to cause death. Though it is not as culpable as the offence previously stated, it comes close enough to attract liability for murder. If the offender intends to cause bodily injury objectively interpreted as “likely” (probably) as opposed to “most probably” to cause death, the offender is not deemed to have had the mens rea needed for murder. It is deemed to be culpable homicide not amounting to murder. So, the intention-based men rea has two types of situations in which the offender/defendant could have foreseen the outcome of his action. As regards knowledge based mens-rea, the offender has complete knowledge that what he does to the victim would cause death and as such he does not deserve any excuse for causing the murder. Although the knowledge is not the same as intention, knowledge of virtual certainty of death that would be caused, as a result, is comparable to intentional murder. Negligent killings do not amount to culpable homicide, but less serious offence of causing death by a negligent act does amount to culpable homicide.
The mens rea for this offense is a gross departure from the standard of care that a reasonable person would have taken. A defendant charged with murder may seek to have his or her offense reduced to culpable homicide not amounting to murder based on a the exceptions of partial defences known as “provocation”, “exceeding the exercise of self defence, exceeding the exercise of legal powers, sudden fight and consent.
Mens rea means "guilty mind" that is, what the defendant had in mind and what the defendant intended when he committed the crime. Thus, mens rea principle allows the criminal justice system to distinguish between a person who never meant to commit a crime and a person who deliberately committed a crime .Thus, mens rea principle plays a crucial role in distinguishing between negligence and crime, intentional and unintentional. In certain cases, even if there is no mens rea, it is punishable in accordance with the principle of strict liability. Thus, raping a minor i.e. causing statutory rape and sale of alcohol to minors are offenses that are punishable regardless of intention or otherwise. The offender might have honestly thought the victim was over 21 years in case of sale of alcohol and 18 years in case of rape.
In common law systems, four faults requirements were used to identify mens rea on the part of an offender; intention and recklessness in particular consequence, and knowledge of, or recklessness of, or recklessness as to a specified circumstance. For majority of offences, mens rea needs be identified with at least knowledge as to the knowledge and the circumstances, and recklessness as to the result. Some offences specifically require a higher or lower degree of fault. A very few offences require a lesser form of mens rea for negligence and strict liability. On the other hand, a higher form of mens rea that is intention must be present for murder. In respect of both intention and subjective recklessness, the defendant must be aware of the prohibited act or consequence. With this, intention is an added aggravating factor by which the defendant aims to carry out the prohibited act or to cause the prohibited consequence. Causing an actus reus without taking reasonable care, or without complying with a standard of conduct, that is negligence may also considered as legally blameworthy.
Negligence, however, need not be a state of mind. It is a type of legal fault and similar to crimes requiring mens rea. Intention, recklessness and negligence therefore imply different degrees of “fault” in English criminal law of England and other common law jurisdictions. Intention is the highest level of culpability on the part of an offender and a term used to signify consequences. Professor Kenny states that intention is to have predetermined mind i.e fixed purpose to accomplish a desired objective. The word “intention” is used to denote the state of mind of an offender who not only foresees but also wants the occurrence of the possible consequences of his conduct. The meaning of intention, however, is not confined to the consequences desired, wanted or deliberated. Courts in England do stretch the meaning of intention so as to cover consequences which the offender might not want to pursue but which he known are certain to happen as an indirect or oblique intent. As there is no statutory definition of intention, courts were left to define the term. The House of Lords and the Court of Appeal have defined the term “intention”. In England, the state of mind that can incriminate an offender for murder is intention and as such mere recklessness or negligence would not be sufficient to establish guilty of murder. But, these are states of mind to implicate a person for manslaughter. DPP v Smith (1961), Hyam v DPP (1975) , and R v Moloney R v Nedrick (1986) Cr App R 267 (CA) (Crim Div) are some of the cases in which the House of Lords prescribed different tests to infer intention.
In DPP v Smith (1961), the defendant avoided arrest by driving off his car containing a stolen property with a policeman who clung to the defendant’s car but fell off on the way only to be run over and killed by an oncoming vehicle. In the trial for murder, the defendant claimed that his only intention was to escape and that he had no intention to kill the policeman or cause serious injury to him. The judge directed the jury by applying an objective test. The test that the jury was directed to apply was whether the defendant as a reasonable man contemplated that serious bodily injury would likely to be caused to the officer and that such harm eventually happened resulting in the death of the officer and if so the defendant would be guilty of capital murder. The conviction by the lower court was reversed by the Court of Criminal Appeal and a lesser verdict of manslaughter for the reason that the lower court judge applied a wrong objective test that a reasonable man would contemplate the probable consequences of his acts and therefore would be deemed to have intended. However, on appeal, the House of Lords revoked the decision of the appeal court and confirmed the capital sentence rejecting any subjective test for intention. The House of Lords referred to the well-known definition of Stephen for “malice aforethought” which is the mental element in murder that required “knowledge that the act which causes death will probably cause death of, or grievous bodily harm to some person” In this case, the House of Lords applied an objective test as well as found that there was a clear indication of foresight of the consequences as a possible of ingredient of malice aforethought and mere certainty of the consequence alone was not sufficient.
In Hyam v. DPP, probability test was applied. Mrs Hyam’s lover enraged at his lover being engaged to be married to B went to B’s house in the early morning and set fire to her house by pouring petrol through the letter box and lighting it with a newspaper. B and her son escaped but her two daughters were suffocated to death by the fire fumes. Upon the charge of murder, Mrs Hyam defended that the she set fire only to frighten. Mrs Hyam was convicted of murder by the jury by applying the test prescribed by the judge if the defendant had set fire with the foreknowledge it would be highly probable that resultant fire would cause death or serious bodily injury, then she should ne found guilty of murder. Her appeal was dismissed and in her second appeal too the House of Lords confirmed the conviction giving a different reason. It rejected the argument that a consequence foreseen as highly probable was the same as intention. It could however, be alternative form of aforethought as effective as intention to view an unlawful killing as murder. The intention implied in such circumstances was morally indistinguishable from the basic meaning of intention. In R v Moloney, the test applied was the “natural consequence test”. In Nedrick, the “virtual certainty test was applied.
Conclusion
In view of the above, it can be understood that the degree or seriousness of the intention would indicate how much and what the defendant foresaw for him to be possessed of mens rea at the time of commission of the offence to be convicted of crime. The degrees of intention are the benchmarks for murder or manslaughter as the case may be. In some cases, strict liability would apply even in the absence of mens rea.
Bibliography
Kevin Heller, Markus Dabber, The Handbook of Comparative Criminal law. ( Stanford University Press, 2010)
Cecil JW, Turner, Kenny’s Outline of Criminal Law, 19th edition, (London: Cambridge University Press, 1966)36
Elewa Badar Mohamed. The Concept of Mens Rea in International Criminal Law (Bloomsbury Publishing, 2013) 33
Websites
Find Law, Mens Rea _ A defendant's mental state. < http://criminal.findlaw.com/criminal-law-basics/mens-rea-a-defendant-s-mental-state.html>
