CIA-3

PRINCIPLES OF CRIMINAL LAW

MENS REA

ANKIT ANAND
V B.A.LL.B. ‘C’
1550309
 THEME:
MENS REA

SUB THEME:
DEFINING MENS REA, THE
DEVELOPMENT AND CONCEPT
ABSTRACT
Criminal law is a social control device which describes offences and prescribes punishments. It
guides people into what are and what are no proper behavior. It is defined as body of special
rules regulating human conduct promulgated by state and uniformly applicable to all classes
which it applies and is enforced by punishments. Criminology is the branch of criminal science
which deals with crime causation, analysis of crime and precaution of crime. It is socio-logical
study which seeks to discover the causes of criminality and suggests remedies to reduce crimes.
It deals with the legal psychiatric aspect or the medico-psychological, biological, pedagogical or
sociological aspect of criminality and the factors related therewith. Crime is considered to be a
social wrong which means it is considered to be committed against the society, not against the
individual or the victim only. According to the legal definition, “crime” is any form of conduct
which is declared to be socially harmful in a state and as such forbidden by law under pain of
some punishment. There lies the two cardinal elements of a crime i.e. Actus Reus and Mens Rea.

Mens rea or the guilty mind is an essential element of crime which is the most important doctrine
in the realm of criminal law. “Mens rea”, Latin word for “guilty mind” is the mental element of
crime. Absent in ancient common law, mens rea originated in English courts around the
thirteenth century. Before the development of mens rea, an individual could be found guilty of a
crime based solely on his or her physical conduct. Mens rea developed from the emerging notion
that a person should not be found guilty of a crime if he or she had an innocent mindset. Mens
rea, also called criminal intent, has become a required element of most criminal offences. Mens
rea is often characterized in terms of intent—general intent or specific intent—but it can also be
characterized as fault or culpability.

This paper will deal with the development of mens rea through centuries. It will also throw light
on the other closely related aspects of the concept of Mens rea.
INTRODUCTION
Mens Rea, or “guilty mind,” marks a central distinguishing feature of criminal law. An injury
caused without mens rea might be grounds for civil liability but typically not for criminal.
Criminal liability requires not only causing a prohibited harm or evil -- the “actus reus” of an
offence -- but also a particular state of mind with regard to causing that harm or evil. For a
phrase so central to criminal law, “mens rea” suffers from a surprising degree of confusion in its
meaning. One source of confusion arises from the two distinct ways in which the phrase is used,
in a broad sense and in a narrow sense. In its broad sense, “mens rea” is synonymous with a
person’s blameworthiness, or more precisely, those conditions that make a person’s violation
sufficiently blameworthy to merit the condemnation of criminal conviction. In this broad sense,
the phrase includes all criminal law doctrines of blameworthiness -- mental requirements of an
offence as well as excuse defenses such as insanity, immaturity, and duress, etc. This was a
frequent usage of “mens rea” at common law. It remains common among non-legal disciplines
such as philosophy and psychology, perhaps because it captures in a single phrase criminal law’s
focus on personal culpability. The modern meaning of mens rea, and the one common in legal
usage today, is narrower. Mens rea describes the state of mind or inattention that, together with
its accompanying conduct, the criminal law defines as an “offence”. In more technical terms, the
mens rea of an offence consists of those elements of the offence definition that describe the
required mental state of the defendant at the time of the offence, but does not include excuse
defenses or other doctrines outside the offence definition. As a general rule every crime requires
a mental instinct, the nature of which will depend upon the definition of the particular crime in
question. Under the IPC, guilt in respect of almost all offences is fastened either on the ground of
intention or knowledge or reason to believe. All the offences under the code are qualified by one
or the other words such as wrongful gains or wrongful loss, dishonestly, fraudulently, reason to
believe, criminal knowledge, or intention, intentional co-operation, voluntarily, malignantly,
wantonly. All these words require the mental condition required at the time of the commission of
the offence, in order to constitute an offence.

Although views have been expressed that it is impossible to ascribe meaning to the term ‘mens
rea’. The concept of intention, common knowledge, recklessness and negligence has generally
been defined and used as fundamentals to constitute mens rea.
MENS REA AS THE ENCYCLOPEDIA OF CRIMINAL
LAW
The term mens rea comes from the writings of Edward Coke, an English jurist who wrote about
common law practices. He advocated that “an act does not make a person guilty unless mind is
also guilty”. This means that while a person may have committed a criminal act, they can only be
found guilty of criminal activity if the deed was deliberate.
To put it simply, mens rea determines whether someone committed a criminal deed purposefully
or accidentally. This idea commonly applies to criminal cases of grievous nature. For ex murder,
the perpetrator’s mens rea, or mental state at the time of the killing, is an essential factor in
whether they will be declared guilty or innocent. In order to receive a conviction, the lawyer
must prove that the accused party had some intention or willingness to end the life of another
person. On the other hand, if evidence shows the death to be accidental and unavoidable, the
suspect must be declared innocent and set free.
Every crime tried in court has two factors: the Actus reus the actual criminal act, and Mens rea,
the intent to commit that act. Prosecutors must prove that both of these conditions existed to win
a conviction in line with the Indian penal Code, 1860. The Indian Penal Code IPC is the main
criminal code of India. The Indian Penal Code in its basic structure is a document that consist of
the list of all the punishments and cases that a person who commits any kind of a crime is to be
held liable and charged with. It covers any Indian citizen or a person of Indian origin. The
exception to this document is that any kind of military or armed forces crimes cannot be charged
on the basis of Indian Penal Code. They have a different dedicated list of laws and the Indian
Penal Code cannot supersede any part of it.
No problem of criminal law is of more fundamental importance or has proved more baffling
through the centuries than the determination of the precise mental element or mens rea necessary
for crime. For hundreds of years the books have repeated with unbroken cadence that Actus non
facit reum nisi mens sit rea, "there can be no crime, large or small, without an evil mind". It is
therefore a principle of our legal system, that the essence of an offence is the wrongful intent,
without which it cannot exist. But when it comes to attaching a precise meaning to mens rea,
courts and writers are in hopeless disagreement. Some define it in the broadest and most general
terms; others define it with more precision, but with greatly varying meanings. It becomes
important, therefore, to examine with some particularity the mental requisites of criminality and
for this purpose to understand some- thing of the historical development which has made the law
what it is today. Such a study may be divided into the following somewhat arbitrary divisions:-
1. The mental requisites for criminality in the early law up to the thirteenth century.
2. The beginnings of the conception of mens rea.
3. The subsequent development of a general mens rea as a requisite for criminality.
4. The growing particularization of this general mens rea with respect to specific felonies.
5. The growing particularization of this general mens rea with respect to specific defenses, such
as insanity, infancy, compulsion, coverture, mistake of fact, etc.

It is perhaps unnecessary to add that although some such arbitrary divisions are necessary for
purposes of exposition, in fact, the gradual growth and development of the mental factors in
criminality was and is a continuous evolution, unmarked by any sudden or abrupt transitions.

1. The mental requisites for criminality in the early law up to the thirteenth
century.
Early criminal law rested upon desire of vengeance which seeks a blameworthy victim and
blameworthiness rests upon fault or evil design which also reflected the view of the church
which made blameworthiness dependent upon the evil intent of the actor. The truth is that the
surviving records relating to the administration of justice in early days are so scanty that no
one knows exactly what the law in action was. So far as the law in the ancient books is
concerned, there are numerous isolated passages pointing to criminality in certain cases
without criminal intent. But one has to remember that there was no distinction in those days
between crime and tort. From such records as remain, some of the ablest legal scholars have
concluded that primitive English law started from a basis bordering on absolute liability. It is
worth looking at a few of the early fragments bearing on the mental requisites for criminality
for whatever the law in action may have been, they show that at least in the recorded law
prior to the twelfth century, a criminal intent was not recognized as an indispensable requisite
for criminality. The law set forth strong liability without fault and certainly without criminal
intent. In the twelfth century, the clearest indication of criminal liability imposed by the early
law without blameworthy intent is perhaps to be found in the cases of killing through
misadventure and in self-defense. In early times, with the exception of killings under the
king's warrant or in the pursuit of justice, which had always been justifiable, the killer seems
to have been held liable for every death which he caused, whether intentionally or
accidentally. By that time, however, the influence of the church law was becoming dominant.
The canonists had long insisted that the mental element was the real criterion of guilt and
under their influence the conception of subjective blameworthiness as the foundation of legal
guilt was making itself strongly felt. Although, apart from all these facts the early law seems
to show that up to the twelfth century the conception of mens rea in anything like its modern
sense was non-existent.

2.The beginnings of the conception of mens rea.

By the end of the twelfth century two influences were making themselves strongly felt. One
was the Roman law which, resuscitated in the universities in the eleventh and twelfth
centuries, and was sweeping over Europe with new power. A second influence, even more
powerful, was the canon law, whose insistence upon moral guilt emphasized still further the
mental element in crime. In the determination of sin the mental element must be scrutinized
quite as closely as the physical act. There was constant interaction and reaction between
church and state law. During this period the common law became more and more strongly
marked with the canonists' influence. It was at this time that the court of chancery was
growing into power and the chancellor, a churchman of high dignity, was continually
tempering the rigors of the strict law with equity.

3. The subsequent development of a general mens rea as a requisite for criminality.

Henry de Bracton, an English cleric and jurist, upon the mental element in criminality said
that it should take permanent root and become part of the established law. Under the
 pervasive influence of the Church, the teaching of the penitential books that punishment
should be dependent upon moral guilt gave powerful impetus to this growth, for the very
essence of moral guilt is a mental element. Henceforth, the criminal law of England,
developing in the general direction of moral blameworthiness, began to insist upon a mens
rea as an essential of criminality. Scholars, newly inspired with Roman texts and maxims,
searched the books afresh in their efforts to formulate and systematize these developing
ideas. The formula found in the “Leges” of Henry I that "reum non facit nisi mens rea" was
seized upon and used as a convenient label for the newer ideas, finally to evolve in Coke's
“Third Institute” as "actus non facit reum nisi mens sit.rea."
We can trace the changed attitude in new generalizations concerning the necessity of an evil
intent which are found scattered through the Year Books in the remarks of judges and
counsel and which later make their appearance as settled doctrines in the writings of Coke
and Hale during the seventeenth century. Generalizations about the necessity of an evil intent
for felony crept from the Year Books into the legal treatises and texts summarizing the
established law of the day. Bacon, stating the law as it existed in Queen Elizabeth's time, says
in his Maxims, “All crimes have their conception in a corrupt intent, and have their
consummation and issuing in some particular fact." By the second half of the seventeenth
century, it was universally accepted law that an evil intent was as necessary for felony ss the
act itself. Hale, in discussing death through “casualty and misfortune,” writes that “as to
criminal proceedings, if the act that is committed be simply casual and per infortunium,
regularly that act, which, were it done ex animi intentione, 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 offence capital.

4.The growing particularization of this general mens rea with respect to specific
felonies.

While the conception of a general mens rea as a requisite for felony was thus coming into
prominence, the exigencies of the developing law made necessary at the same time a more
and clearer cut conception of exactly what constituted this evil or felonious intent. At the
outset when the mens rea necessary for criminality was based on general moral
blameworthiness, the conception was an exceedingly vague one. As a result of the slow
judicial process of discriminating one case from another and “taking of diversities,” much
sharper and more precise lines gradually came to be drawn as to the exact mental requisites
for various crimes. Since each felony involved different social and public interests, the
mental requisites for one almost inevitably came to differ from those of another. One must
therefore examine separately the developing and slowly changing mental elements required
for homicide, for larceny, for burglary, for arson, and for other offenses.
Homicide: The law of homicide during the thirteenth, fourteenth, and fifteenth centuries was
undergoing considerable change. As has been seen, at the beginning of the thirteenth century
criminal responsibility attached to all homicides except those in execution of a warrant or in
the pursuit of justice, but men who killed in self-defense or by misadventure were seeking
and often obtaining pardon from the king. The line between murder and manslaughter was
unknown; there was no legal distinction between voluntary and involuntary homicide. The
mental element, in other words, was of minimum importance. The emergence of the mental
element as a factor of prime importance, the gradual freeing from criminal responsibility of
those who killed without guilty intent, and the separation of different kinds of homicide into
more and less serious offenses dependent upon the psychical element. The most serious form
of homicide, called “murder,” meant, at the end of the twelfth century when Glanville wrote,
“homicide which is committed in secret, no one seeing or knowing of it,” for which the vill
or the hundred was liable to a heavy amercement, which itself was called the murdrum. It is
clear, therefore, that murder in those days was not distinguished from other felonious
homicides by any mental element. During the end of the fifteenth and first half of the
sixteenth centuries a series of statutes were passed excluding the worst kind of homicides
from benefit of clergy. In these statutes such homicides are defined as “wilful prepended
murders,” “prepensely murder,” “murder upon malice prepended,” “wilful murder of malice
prepended,” and “murder of malice prepended.” Thus, felonious homicide was finally
divided into two main divisions, one with and another without malice aforethought, and the
first was designated as murder which were punished very differently.
 5. The growing particularization of this general mens rea with respect to specific
defences, such as insanity, infancy, compulsion, coverture, mistake of fact, etc.
It criminality resulted not only in the development of various technical mental requisites for
different felonies but also in the slow formulation of recognized general defenses to criminal
liability. The conception of blameworthiness or moral guilt is necessarily based upon a free mind
voluntarily choosing evil rather than good; there can be no criminality in the sense of moral
shortcoming if there is no freedom of choice or normality of will capable of exercising a free
choice. After the twelfth century new general defenses begin to take shape such as insanity,
infancy, compulsion or the like, based upon tied lack of a guilty mind and thus negating moral
blame-worthiness such as insanity, infancy, compulsion, coercion, intoxication, mistake of fact
etc.

CONCLUSION

Mens rea is far more elusive creature than actus reus. An act is observable and provable through
objective evidence. Witnesses can and will testify to what the defendant did. They cannot testify
as accurately to what the defendant was thinking. State of mind often can only be inferred from
actions. If X stands immediately in front of Y with a loaded gun and shoots Y, the jury might
infer that X intended to kill Y. But what if X testifies that she was aiming at an area to the left of
Y, or was only intending to scare Y? or what if X says that she did not now that the gun was
loaded, or that she thought Y was a dummy(cardboard) or that she thought that Y was about to
shoot her and fired in self-defense? Implausible, perhaps; but how does one know for sure?
Unless a defendant confesses (and sometimes not even then; there are many documented cases of
false confessions, for reasons ranging from improper police pressure to guilt on the part of the
confessor for some unrelated childhood incident), there will always remain doubt about what was
going on in the defendant’s mind at the time of the offence.
Notwithstanding the problems relating to proof, mens rea is perhaps the most critical concept in
criminal law. Mental state will often be the determining factor as to whether one who causes
another’s death will receive a life sentence, a term of years in prison short of life, or no legal
sanction whatsoever. For ex, driving through the high street Zachary hits and kills a pedestrian; if
Zachary intended to run over the pedestrian, he is guilty of murder; if he was driving recklessly,
he is guilty of manslaughter or causing death by dangerous driving; and if the victim jumps in
front of his car and the accident was unavoidable, he is guilty of no crime. The same act, the
same result, but entirely different legal consequences because Zachary’s state of mind.

A study of the historical development of the mental requisites of crime leads to certain
inescapable conclusions. In the first place, it seems clear that mens rea, the mental factor
necessary to prove criminality, has no fixed continuing meaning. The conception of mens rea has
varied with the changing underlying conceptions and objectives of criminal justice. At the
beginning when the object of criminal administration was to restrict and supplant the blood feud,
the mental factor was of importance insofar as it determined the provocative nature of the
offence; a malicious burning of another's dwelling house being far more provocative than an
accidental one, judges must distinguish between malicious and accidental burnings.