Should mental state be considered when defining criminal offences?

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Kaileigh Patmore Group 16

 Given the difficulty of proving state of mind, would it make more sense to define criminal offences without reference to mental state, leaving mental state to be considered at sentencing in aggravation or mitigation of the offence. Give reasons for your answer.

In order to answer this question one must first attempt to understand the definition of “mens rea”, the mental element of crimes. A fundamental requirement of criminal law is that a crime has physical and mental elements. Mens rea was not developed in England until early 1600, judges deciding that it was not enough to convict someone purely on the crime, deeming crimes had to be accompanied by a guilty state of mind or moral blameworthiness. Mens rea itself is purely a generic term, in order to define the mens rea, one must consult the statutory or common law definition of the crime, only then is it possible to know the necessary mens rea for the crime. In order to constitute having the required mens rea three states of mind are generally considered.

The problem when proving state of mind is that it is practically impossible to know what somebody was thinking or intending at the time the crime was committed, especially as defendants have been known to confess to crimes they have not committed. It would then, in theory be simpler for courts and jury’s to dismiss mens rea when defining the criminal offence, leaving it to be considered at sentencing. The confusion involved in defining mens rea and also intent is of particular importance when considering this, because potentially the defendant involved can incur consequences more serious than deserved when mens rea has not been properly considered and understood when defining offences. Meaning the defendant would inevitably be found guilty, although depending on aggravating or mitigating factors they may get a better sentencing period.

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Motive although generally not accounted for when looking at intention (mens rea is also referred to in statutes as intention), it can have relevance in looking at the mens rea and whether it is necessary to include the mental state of the accused at trial. In the case of R v Steane, Lord Goddard stated; “While the idea that one intends the natural consequences of one's acts… it does not relieve the Crown of proving mens rea.”  This is essential as presuming what one intends and what the person actually intends can be completely contrasting. Divulging Steane’s motives and ...

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