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Mens Rea is the mental element of an offence an each offence has its own Mens Rea. The only
exceptions of Mens Rea are offences of strict liability. These are an exception because they do not
require proof of the mental element where there has been an Actus Reus.
There are different levels of Mens Rea and to be guilty, the accused has to have at least the minimal
level of Mens Rea required by the offence. The highest level of Mens Rea is intention which can also
be referred o as specific intention and the other main types of Mens Rea are oblique intention,
negligence and recklessness.
Many crimes require that the defendant had the necessary intent when committing the offence. This
is a kind of subjective test that allows the courts to establish what the defendant was actually
thinking. In Mohan the court defined intention as `a decision to bring about, in so far as it lies within
the accused power, no matter whether the accused desired that consequence of his act or not'.
This is where the defendant has set out to achieve a particular result or consequence. This was also
defined in Maloney as a `true desire to bring about the consequences'.
An example of this would be where a defendant shoots a victim in the chest because he or she wants
to kill the victim.
This is where a defendant will claim that he or she did not intend the result of his or her actions and
indeed did not want it to occur. This is where `the defendant sees death or GBH as virtually certain,
this is evidence of intent' where the consequence is virtually certain despite the defendant not
intending the actual consequence which can be seen in Hancock and Shankland, Nedrick and Woollin.
This is where `the defendant sees a risk and takes it anyway'. His foresight is important but he does
not have to be virtually certain and can be seen through cases like Cunningham, R v G and another.
Before, there used to be two types of recklessness, subjective and objective but the objective
recklessness is now extinct. In conclusion, subjective recklessness is when the defendant foresees
the result as a mere possibility- he or she did not necessarily desire the result but was prepared to
take a chance and in other words, the defendant took an unjustifiable risk.
A defendant will generally be guilty if he or she has both the Actus Reus as well as the Mens rea of a
crime, however there can be a turn in events due to transferred malice. This is the principle that the
defendant can be guilty of if he intended to commit a similar crime but against a different victim. An
example of this can be aiming a blow at one person with the necessary Mens Rea for an assault
causing actual bodily harm (ABH) but actually hitting another person. An example of this can be seen
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Latimer. However transferred malice can only be used in terms of people and not
with animals or property which can be seen through the case of R v Pembliton.
In situations where the Actus Reus comes first, the courts apply the `Continuing Act', where the Actus
Reus is stretched over time, to meet the point where the defendant has the Mens Rea for example in
Fagan v MPC.…read more