AN ANALYSIS OF THE CONCEPT OF MENS REA UNDER CRIMINAL LAW BY - ARINDAM CHAKRAVARTY
AN ANALYSIS OF THE CONCEPT OF MENS
REA UNDER CRIMINAL LAW
AUTHORED BY - ARINDAM CHAKRAVARTY
CHAPTER 1 - INTRODUCTION
1.1 Introduction
Today, the interpretation of
different laws have become the main function of the judges and court but in
ancient time there were no pupils who were trained enough in law to interpret it,so
it went into the hands of priests, but in due course of time the law found its
guardian, these guardians were mainly known as jurists, these jurists were
high-class people who took it as their responsibility to practice law and apply
it for the well being of the social life. Although there were now jurists to
interpret laws The laws had developed a need for a specific factor to prove
that the crime was committed; that factor was termed as Mens Rea or the guilty
mind; there should have been an intent to commit crime. However, the
understanding of Mens rea was still very hazy, and one thing was common to
every act, malice aforethought. For there to be blame and fault, mens rea must
be present; without it, there can be no guilt, and as a result, the individual
is assumed to be innocent.
In most cases a criminal offense is
said to be not committed if the act lacks a mental element, Mens rea can be
legally termed as “Guilty mind”, without this, no person can be convicted,
before holding any person liable, it must be proved that the person had a guilty
mind. For example – A kills B, in an act of private defense, he won't be held
liable because there was no intention to harm the other person, the intention
that was there was to protect himself from the damage. But if A kills B to take
revenge, here it can be proved that A had that guilty intention to harm the
other person”.
The maxim of Actus reus non facit
reum nisi mens sit rea, which translates to "there can be no crime without a guilty
mind," was a Latin expression that led to the inspiration of the concept
of Mens Rea in the 17th century. The limitation that an offense can only be referred
to as an action taken with the intent to commit a crime was solved by this
maxim. In the British rule mens rea was placed under the Indian law after being
adopted from the British law. The Indian Penal Code was introduced by Lord
Macaulay in 1860 and ratified on October 6. Mens Rea was originally a component
of English law, but it wasn't until it had been meticulously modified to suit
the needs of British India that it was implemented.
Mens Rea has evolved from time to
time, it has its own general requirements, defenses, and exceptions, it can be
said that mens rea is the first step toward the commission of a crime, without
it a crime cannot exist, it has evolved through the hands of jurists in early
centuries and has found its place in the codified laws of different countries
1.2 Research Objectives
The main objective of this study is
to analyse mens rea and its concept under criminal law, The present paper will analyze
the concept of men rea its subjective liability and objective liability, defense,
and its relevance in a crime. Its Main objectives can be considered as to
analyse the subjective and objective liability of mens rea, to give a brief
about the evolution of mens rea, critically examine the strict liability and
its relationship with mens rea with relevant case laws.
1.3 Research Methodology
Research Methodology involves a systematic procedure of
collecting data through different sources and then interpreting it analyzing
them and coming to a conclusion, research methodology involves doctrinal and
nondoctrinal methods.
The Doctrinal Method involves going
deep into the legal sources, which means analyzing and interpreting different
case laws, existing statutes, precedents, and research papers and reaching a
conclusion. The doctrinal method uses observation, interpretation, surveys, etc.
to reach its conclusion.
This research paper is based on the
Doctrinal method as it will analyze case laws, statutes, and research papers to
conclude. Secondary research was conducted on the subject of "A Detailed
Study of Mens Rea with Special Reference to Criminal Law." The following
are the legal websites and applications that were used as research sources: 1.
"SCC (Supreme Court Cases)": This application assisted me in locating
particular case laws that were pertinent to my study themes and greatly
influenced the development of this secondary research. 2. "J Stor":
The literary application "J Stor" is the second application that was
crucial in the development of the study paper. The Introduction and Literature
Review benefited the most from the application.
1.4 Hypothesis
This research paper will try to
analyze the concept of Mens Rea and will deal with certain questions:
1. Subsequent development of a general
mens rea as necessary for crime.
2. The subjective and objective
liability under Mens rea
3. The instances where Mens rea is not
considered
1.5 Literature Review
1) The notion of criminal intent: the
evolution of mens rea in criminal law By Daryna Byelikova – The current paper examines the
development of mens rea in criminal law, analyses the idea thoroughly, and
presents opinions on key elements of a guilty mind. It also draws distinctions
between mens rea in civil and criminal cases and sheds light on the complexities
of mens rea. The Canadian law paper covers nearly all of the major mens rea
issues.
2) Francis Bowes Sayre's Mens Rea[1] This essay was published in the
Harvard Law Review in 1932. The primary subjects covered in this article are
mens rea and the dichotomy among mens rea and actus reus. The piece of writing
claims that "any crime, no matter how minor, cannot exist absent any bad
thought."
3) The authors Winnie Chan and
Simester's "Four Functions of Mens Rea"[2]:
The publication was published in 2011 by the Cambridge Law Journal. The first
line of the journal states, "everyone believes that Mens rea occurs to be
relevant to an existing fault." which claims that in order for an existing
crime or error to occur, an evil motive must also exist.
CHAPTER 2 ANALYSIS
2.1 Analysis
1. The assertion of the penitential literature that
punishment should be based on moral guilt provided powerful fuel to this
evolution under the pervasive influence of the Church, as moral guilt itself
has a mental component. The criminal law of England starts to insist on a mens
rea as a necessary component of criminality from this point forward as it moves
in the overall direction of moral blameworthiness. Newly motivated by Roman
texts and maxims, scholars re-searched the books to organize and formulate these
emerging concepts. The phrase "rum non facit nisi men's rea,"
contained in the Leges of Henry I, was appropriated and employed as a
convenient term for the emerging concepts.
Mens rea started seeing a transition
in the coming ages, so clearly suggested widespread moral culpability. Because
most offenses in the thirteenth century already had a deliberate component by
their mere nature, as has been stated, the move from the more archaic concept
of culpability was made easier. Robbery and rape require planning; they cannot
possibly be carried out accidentally. Breaking into a house was by itself an
act requiring a plan, but burglary had not yet evolved the requisite of an
accompanying felonious intent. Unless it was done on purpose, arson was not
illegal. Homicide encompassed careless, unintentional, and intentional deaths;
however, by the thirteenth century, While strictly a felon and liable to
property confiscation, the murderer who killed in self-defense or by accident
was excluded from the death penalty as an ordinary felon.
The fact that offenses committed in
the thirteenth century included an intentional component is maybe just another
example of how fundamental ethical and psychological principles have always
been at the root of crime in general. A felony required an evil intent,
according to law that was widely established by the second part of the
seventeenth century. like the deed itself. In his discussion of death by "
casualty and misfortune," writes that " as to criminal proceedings,
if the act that is committed be simply casual and per infortunes, regularly
that act, which, were it done ex animi intention, were punishable with death,
is not by the laws of England to undergo that punishment; for it is the will
and intention, that regularly is required, as well as the act and event, to
make the offense capital”[3],
hale describes that every act needs intention and to judge that intention the
circumstances of that act needs to be seen”
2. The subjective liability of Mens rea means the
awareness of the person while committing any crime, it simply means that the
accused knew the nature of his act and what harm it would cause but still
didn’t stop himself from doing that act and continued to do the act. Because
men's rea is currently thought of as a unitary concept and is completely
subordinated to subjectivism, according to Amirthalingam (2004 he suggested
that mens rea should be divided into two completely different words. A crucial
element of this dual paradigm is mens, the subjective mental element that
attributes responsibility for the action and its results to the accused.
Furthermore, what is "real" is the normative evaluation of that
mental element, such as the accuser's moral guilt. This would imply that we now
need to consider whether the "mens" was "rea" rather than
just focusing on the existence of "mens rea" in its whole.
The Subject liability is based on
four different levels of state of Mind which are
1. Intention
2. Knowledge
3. Negligence
4. Recklessness
Intention:
Defining intention can be a rigorous
task as the Indian penal code does not have a rigorous definition for it.
Though it is an easy term to define it can be said that intention refers to a variety
of things that the action is intended to achieveIntention is the conscious use
of one's mental faculties to take action in order to accomplish or meet a goal.
There are two categories of intent: direct intent and general intent. Direct
intent is when someone intends to do something bad, For example – A throws water
on the floor, for B to slip and fall. This is direct intent where the act has
been intentionally committed, General intent is when A throws water on the
floor, not to make B slip and fall but to know that there is a high chance that
it is inevitable for B to slip and fall because of the water.
In the case of The Queen v. George
[1960][4],the
defendant was found guilty of robbery before being exonerated due of his
extreme intoxication, and the court determined that the defendant lacked
sufficient mental intent to be charged with robbery. Justice Fauteux ruled that
when determining mens rea, there should be "a distinction between Intended
actions are those that are regarded in relation to their purpose, and intended
actions are those that are not considered in relation to their purpose.
According to the court's decision, evidence must demonstrate that a defendant
had a specific intention to commit a crime before they can be found guilty.
Although Intention is not defined in
IPC other expressions help us understand what intention can mean these are –
Sec. 39 defines the term voluntarily: “When someone "voluntarily"
causes an effect, they do so by employing ways they intend to use, or by utilising
means they knew or had reason to think at the time they were likely to cause
it.
Sec.
285,286 and 287 – deal with failing to properly handle any hazardous
chemical that could endanger human life, whether intentionally or negligently.
Through
these expressions we can get an idea of the intention factor in crime and how
important it is, as Men's rea is the first step of crime, intention can be the
first step of Mens rea
In Niranjan
Singh v Jitendra Bhimraj (1990)[5],
in this case the accused wanted to kill two people so that he has the full
control of the underworld, The honorary Supreme Court held that their intention
was very clear when we look deeper into the facts, though it cannot be held
that their objective was to cause problems to people, hence it acquitted the
terrorist because of lack of intention to cause terror to the general public
even though the result of their act would cause that, hence it can be seen that
the specific intent to cause a particular act is very important if that intent
is missing, no one can be convicted
Knowledge:
Knowing something entails having
cognitive thinking about it. Knowing the effects of one's actions is known as
knowledge. Although he may not have intended to cause them, a man might have
been aware of the effects of his actions. The accused is therefore said to know
if they are conscious of the circumstances of the crime and its likely
repercussions.
Reasonableness and knowledge are
solely mental processes that are frequently challenging to demonstrate.
Therefore, it can be deduced from the environment and the person's actions.
Knowledge is fundamentally a subjective concept. However, in many situations,
knowledge and intention are interchangeable and indicate the same thing, and
knowledge can be used to infer intention. Although there is some overlap
between knowledge and intention, it is obvious that they refer to different
concepts. Intention, on the other hand, denotes a state of mind that is
required to commit the offense, Knowledge, contrary to intention, is a state
where the accused knows certain facts or certain outcomes of his act
The Supreme Court ruled in Beaver
v. The Queen (1957)[6]
that even if someone has a substance in their physical possession, he cannot be
said to own it until he knows what kind of the substance that is, to ascertain
that the person knows the nature of the substance, the factor of “belief” was
needed. If the substance the person is holding is Heroin, he cannot be held
liable if he believes that he is holding baking powder and lacks the knowledge
of that substance, hence lacks mens rea to commit the crime. In contrast to the
knowledge of a reasonable person, the knowledge degree of mens rea places a
greater emphasis on the knowledge of the individual in question.
Negligence:
When someone fails to exercise the
care and attention that he should have, that person is said to be neglectful.
Negligent wrongdoing is misconduct that happens unintentionally but is
nonetheless wrong since it was done with carelessness or disregard. The wrong
dower's mentality is not one of wanting to cause harm, but rather of not
wanting it enough to stop. The law requires a positive orientation of the Will
toward avoiding harm rather than being satisfied with the absence of even the
slightest intention to cause harm.
A is accountable if he injures a
person nearby while arguing with his wife, and throws a stick towards the side
where the victim was standing, By this A had neither foreseen nor considered
that anyone would get hurt, yet he is nonetheless responsible because he did
not do so.
In McCrone v. Riding (1938)[7], the defendant did not drive with
due care and did not even pay attention, hence Despite the fact that the court
acknowledged he was acting with the skill and attention that could be expected
of a person with his little experience, he was found guilty. This was due to
the fact that he had not met the necessary standard.
The difference between intention and
negligence is that the man intended to do an act that may harm another person,
in negligence the person has no desire to avoid causing harm to the other
person, in intention, there is a desire to cause harm but in negligence, the
wrongdoer is careless
Recklessness:
Recklessness is a state of mind,
where a person knows all the possible consequences and outcomes of his act but
does nothing to stop them. In other words, being reckless means having a
disdain for the risk that is immediately apparent. It is risky to travel at a
high pace down a narrow, busy street. the man is aware that the action he is
undertaking may hurt someone, but he doesn't care. Similarly, A is guilty of
recklessly inflicting injury if A throws a ball toward a group of people and
that ball hits someone from the audience.
The difference between knowledge and
recklessness is that in knowledge the certainty of the facts is very high in
recklessness, is very low.
There are two major tests for
Recklessness -
The R v. Cunningham[8] case established the subjective
test. In this case, the defendant knowingly took the risk, which means that the
risk was present in the mind of the defendant while doing the act but he did
nothing to stop that.
The second test is the Caldwell test,
in this test, this test looks at the act through the point of view of a
reasonable person, it states that the risk being undertaken must be so obvious
that a reasonable person would have foreseen it.
Objective liability –
Objective liability states that the
liability should be extended to those who caused harm to others and it is
irrelevant if they could foresee the harm being caused, if a reasonable person
could foresee the harm being caused then the liability should be extended to
the accused person
3. Under civil law it is not necessary to prove that a Mental
element is required, in criminal cases it is necessary to go beyond the scope
of civil law and dive deeper into the person's mental conduct to make him
liable for the offense. The absence of mens rea has historically been
associated with a few crimes, such as statutory rape, where responsibility can
be established without establishing that the victim is under the legal age of
consent, and bigamy, where both parties genuinely believe they are free to
marry. Many offences under strict liability would be regarded crimes even if
they were committed without the mens rea element, and these offences can be
categorised into various others that do not require the demonstration of mens rea.–
1. Criminal libel
2. Public nuisance (Hicklin Test)
3. Contempt of court
4. Abduction/Kidnapping
5. Bigamy
6. Waging war
7. Sexual harassment
8. Rape
9. Selling of obscene books
State Of Maharastra Vs MH George[9]
In the present case, The RBI issued a
notification and banned bringing any gold items into India, even though the
item was in transit, if anyone wants to bring any item they should disclose
such item in the manifest, MH George was traveling from Zurich to manila and
had a stop in Mumbai. He did not disembark the plane, The customs officers saw that no gold was mentioned in the
manifest hence they entered the plane to check and recovered the gold from the
passenger and accused him of breaking the Foreign Exchange Regulation Act of
1947's Sections 8(1) and 23(1-A), as well as a Reserve Bank of India directive
from November 8, 1962, that was published in the Indian Gazette on November 24.
The respondent contended that the
notice published in the official gazette was not made known to him and that
mens rea is a crucial ingredient of the offense. He also claimed that the
notice can only be regarded to be enforceable when it comes to the knowledge of
the individuals for whom it is published. The accused further contended that he
was unaware of the Indian regulations and had no desire to enter Indian
territory with gold.
The court held that even though Mens
rea is a very important condition of crime regardless of the statutory
provision can exclude Mens rea if the statute has made it a violation to bring
gold into Indian territory then it would be considered an offense if anyone
violates the condition even though he had no intention to do it
Ranjit D. Udeshi vs. State of
Maharastra[10]
Ranjit D. Udeshi, the proprietor of a
bookstore, was accused of possessing and selling explicit content under section
292 of the IPC in the form of a book titled Lady Chatterley's Lover by DH
Lawrence. After being found guilty by lower courts, the case was taken to the
Supreme Court on a variety of grounds, including a violation of fundamental
rights. The book had language describing several accounts depicting sexual
intimacies, which became the reproved text to be ruled for under obscenity.
The Supreme Court noted that section
292 doesn't make the book-seller's knowledge of obscene a component of the offense,
and the prosecution is not required to prove it. The court reacted to the
appellant's claims by stating that it was the responsibility of Parliament, not
the courts, to adopt legislation making knowledge an inherent part of section
292, IPC. As a result, the court considers obscenity to be a strict liability offense.
Absence of knowledge may be
considered for mitigation purposes, but it does not exempt the case from the
provision. However, the prosecution must prove ordinary mens rea in the second
element of the actus reus, as well as that he sold or retained for sale the
offending object. Circumstantial evidence can be used to establish mens rea.
In the light of the above cases, it
can be seen that if any statutory provision makes it a criminal offence to do a
particular act then the relevance of mens rea in that act is not considered,
hence in the case of strict liability, mens rea can be not considered
Subhash Shamrao Pachunde v. State of
Maharashtra (2005)[11]-In Subhash Shamrao Pachunde v. State
of Maharashtra (2005), the Supreme Court determined that the distinction
between culpable homicide and murder depends on top of the specific Mens rea,
which is made up of four mental dispositions; whenever any of these four are
present, the lesser offence becomes an existing greater one.
4. certain defenses come with Mens rea, these defenses
can disapprove of a particular intent. Drug and alcohol intoxication can be
used as a defense, and mistake of fact can also be considered a defense as the
accused is mistaken of the basic facts of an act and hence cannot be said to
have possessed the required mental ability for that crime." Since the
middle of the 20th century, initially in California and then in many other
states, mental illness has also been used to disprove specific intent. A
defendant's ability to possess the precise intent necessary for a crime was the
focus of the defense known as reduced capacity.
1. Insanity as a defense
M'Naghten's
Case (1843)[12]- Daniel M'Naghten's Case shot the
secretary of the prime minister thinking him to be the prime minister and
believing that he was involved in a conspiracy against him, the court in this
case through its decision gave rise to the M’Naghtens rule which says that a
person is incapable of committing the crime if at the time of commission he was
unable to understand the nature of the act
Durham vs.
The United States[13] – This case broadened the scope of
insanity as the defense of Mens rea, said that a person is not liable for his
act if he suffered from a mental disorder, defect, or disease
2. Intoxication as a defense
R Vs
Lipman[14] – The accused, who had taken LSD,
under its effect killed his girlfriend, the court acquitted him stating that
the accused was involuntarily intoxicated as he didn’t know the effects of LSD,
hence it can be seen that involuntary intoxication can be a defense to men's
rea but if the accused has voluntarily intoxicated themselves then the defense
cannot be taken
R vs
Majewski[15]– The accused voluntarily intoxicated
himself and subsequently engaged in violent behavior, the court held that
voluntary intoxication cannot be taken as a defense, it is not a defense to
crimes of basic intent but can be one to that of specific intent if it negates
the required Men's rea
3. Mistake of Fact
R vs
Prince[16] – the accused took a 14-year-old girl
away from her father's custody thinking her to be 18 years old, the court
acquitted him saying that he was genuinely mistaken about the age of the girl
and hence cannot be said to have possessed the required mens rea
4. Necessity
There
arises a situation where a person has to break a law for his self-benefit or
the benefit of others brings necessity under Mens rea defen
ses. The
court gave some guidelines for the Necessity to be used as a defense, known as
parka findings, 1) there must be an immediate danger to life 2) the act must be
inevitable and unavoidable 3) The damage must be smaller than the damage that
should have been prevented.
R. v.
Morgentaler [1993[17]] – In this case, a doctor was accused of
executing an illegal abortion; the defence of necessity was pleaded and the court stated
that there was no imminent danger to the woman's life because of the child she
was carrying, the court applied the parka findings and decided that necessity
cannot be pleaded as a defense.
CHAPTER 3 CONCLUSION
3.1 Conclusion
The word "Men's rea" in
criminal law is extremely complex and can be interpreted in several ways
depending on the offence, making it challenging to determine its true meaning..
For ages, the law and the church have tried to define it but with time and
discoveries, it just added to its complexities, nothing can be defined in
criminal law, the offences and their method can change so can the rules
applied. among these numerous concepts lies the foundation of every criminal
act and crime, Mens rea, defined as a guilty intention the accused possesses
during the commission of a crime, Mens rea has evolved into being the most
important aspect of crime, without it, the crime is said to have been not
committed. Mens rea is one of the primary parts of crime, but it merely
expresses how a criminal case should be viewed; the court has invented new
forms of mens rea with each new case; there is no such law that deals with such
many intricacies and complexity.
[1] Francis Bowes SayreIn , Mens Rea,
Harvard Law Review, Vol. 45, Issue 6 (April 1932), pp. 974-1026,
https://heinonline.org.
[2] Winnie Chan, Mens Rea,
Cambridge law journal, Vol. 70, issue 32 (May 2011), pp. 853- 955, https://www.cambridge.org.
[3]HALE, PLEAS OF TIIE CROWN 38.
[4] The Queen v. George, [1960] SCR 871.
[6] Beaver v. The Queen 1957 CanLII
14 (SCC).
[7]McCrone v. Riding [1938] 1 All ER
157.
[8] R v Cunningham [1957] 3 WLR 76.
[10] Ranjit D. Udeshi vs. State of Maharastra 1965 AIR 881.
[11] Subhash Shamrao Pachunde v.
State of Maharashtra (2005), Appeal (crl.) 541 of 1999.
[12] M'Naghten's Case (1843) 8
E.R. 718.
[13] Durham vs. The United States 214
F.2d 862.
[14] R v Lipman [1970] 1 QB 152.
[15] R v Majewski [1977] AC 443.
[16] R
vs. Prince [1875] LR 2 CCR 154.