The law of Mens rea

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Mens rea can be literally translated to mean ‘guilty mind,’ and it, “Refers to the mental element necessary for the particular mind…”. This is not some abstract mental process; it refers to specific words in the charge or indictment. There are two opposing views on the way in which mens rea of the accused has been established: the subjective approach and the objective approach.  The two often come into conflict in court when deciding the accused mental state and there has been much criticism surrounding the way the courts have dealt with this problem.

One commentator said that:

“Subjectivism became the orthodox academic theory of mens rea earlier this century.”

It has also been said that:

“Subjective tests heighten the protection of individual autonomy, but they typically make no concession to the principle of welfare…of fellow citizens.”

Thus commentators are undecided about the proposal stated in the above question.

Generally, recklessness means taking an “unjustified risk”, however, its legal definition is not quite as straightforward or the same as its normal meaning in the English language. Careful direction as to its legal meaning has to be given to the jury, so as to avoid miscarriages of justice. However, the word had produced uncertainty because there is no statutory definition and judges have produced two meanings of recklessness for different crimes.

It is often difficult for the prosecution to prove that D intended to commit the crime in question and for many offences, it is therefore not necessary to show a high degree of blameworthiness; it is sufficient to prove that D has been reckless as to whether the crime has been committed.

The original definition for recklessness was that in R v Cunningham, which concerns Section 23 of the Offences against the Person Act (1861).  In this case recklessness is purely subjective regarding the person's state of mind, Byrne J. in his judgement directed the jury to this definition of recklessness:

"(1) An actual intention to do the particular kind of harm that in fact was done; or (2) recklessness as to whether such harm should occur or not."

This would mean that the accused must have realised that he was going to cause harm and not just that the risk would have been obvious to anybody else in that situation.

For a defendant to be guilty under Cunningham recklessness he must have consciously undertaken an unjust risk. He must realize that there is a risk involved but if he continues to carry on with his conduct, then he is reckless. The defendant was charged under S.23 Offences Against the Person Act 1861, which involves maliciously administering a noxious thing so as to endanger life. The trial judge directed the jury that malice was the equivalent to wicked and the Court of Appeal quashed the conviction - maliciously means intentionally or recklessly and the latter word required proof that the defendant had had some foresight of the risk and yet had still deliberately gone ahead.

On appeal, Geoffrey Lane L.J stated that:

"The fact that the risk of some damage would have been obvious to anyone in his right mind in the position of the defendant is not conclusive proof of the defendant’s knowledge…"  

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This confirming that the jury who originally convicted the defendant were misdirected and that the conviction could only be upheld if the defendant realised the consequences of his actions, clearly in this case he did not so the Court of Appeal had no option but to quash the conviction.

This was supported in Stephenson (1979) The trial judge directed the jury that the defendant was reckless if he 'closed his mind to an obvious risk' but the Court of Appeal quashed the conviction with Lord Lane firstly looking at the recommendations of the Law Commission:

a person is reckless if, ...

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