LMRW- Tutorial 03

 In 1,000 to 1,200 words explain how the doctrine of Mens Rea has shaped English
Criminal Law.

Mens Rea is a legal phrase used to describe the mental state an individual must be in whilst
committing a crime for it to be intentional. The writings of Edward Coke, an English jurist
states in his definition of murder, mens rea is ‘malice aforethought’1. 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 deliberate2. Prior to this in the year of 1118 it was noted “ If someone in the
sport of archery or other form of exercise kill another with a missile or by some such
accident, let him repay; for the law is that he who commits evil unknowingly must pay for it
knowingly”3, this phrase exemplifying the inclemency of the earliest legal system. Presently,
the doctrine of mens rea is sometimes said to be the essence of criminal law4, as most courts
agree that there can be no criminal act unless there has been a criminal intent; that a guilty
mind must be present or no crime is committed. William Blackstone summed it up by stating
an unwarrantable act without a vicious will is no crime at all. So that to constitue a crime
against human laws, there must be, first a vicious will; and, secondly, an unlawful act
consequence upon such vicious will5.

Regards to the doctrine of mens rea and its effect to English law, it is important to
acknowledge firstly the depth of the doctrine. For hundreds of years the books have repeated
with unbroken cadence this doctrine. The Bishop in the early years stated that “there can be
no crime, large or small, without an evil mind’,’it is therefore a principle of our legal system
as probably it is of every other that the essence of an offece is the wrongful intent, without
which it cannot exist”6. The doctrine, is not just taken by face value, but has different
1
Edward Coke, Institutes of Lawes of England, (first oublished 1628)
2
“Mens Rea - Crime Museum” (Crime MuseumJune 28, 2017)
<https://www.crimemuseum.org/crime-library/criminal-law/mens-rea/> accessed February
18, 2021

3
Anonymous, Leges Henrici Primi (published 1644, Lesley Downer)
4
Duncan v. State 7 Humph (Tenn.) 148, 150.
5
William Blackstone, “Commentaries on the Laws” (published 1765, Clarendon Press, Oxford)
6
Bishop, Criminal Law (9th ed. 1930) 287.
elements in which the legal system acknowledges to further ensure an individual committed
the crime intentionally. When a criminal act has been committed, the court is given the
responsibility to ensure that the defendant in question possessed the mental intention to
commit this wrongful act. When this is proven, the court then ensures the defendant is
punished appropriately in relation to the crime committed. This is important as it allows
individuals to have confidence in the legal system, allowing them to be penalized in regards
to the crime that they committed and no more. It further ensues that individuals facing the
court are not reprimanded for crimes they did not commit with intention to cause grievous
bodily harm, but may have been done without there foresight. Permitting the court to
“distinguish intended results from accidental happenings”7

How has the doctrine shaped the English law system ?

When discussing the method in which the doctrine of mens rea shaped the English criminal
law, one is by allowing a distinction to be made between the ‘capital crime of murder and the
less serious form of felonious homicide, which later came to be called manslauther8 which
depended on said mens rea, where there is an absence of “malice aforethought”9 as
exemplified in the case of R v Franklin 10 where the appellantt threw a box into the sea ,
hitting a swimmer who died as a result of being hit, appellant not having the mens rea
allowed for a conviction of manslaughter to be acknowledged. With this distinction being
made, justice is now able to be distributed in a more fair manner. It ensured that the rulings
were not as simple as “the act was done, you did the act, therefore you are convicted”, it
became one that investigated into a deeper sense of the individual who committed the act and
appreciated the various factors that contributed to the crime committed. .

More over, this doctrine shaped the English criminal law is by securing fair warning to
defendants, ensuring that have sufficient advance notice that by their conduct, they risk
violating the criminal law. 11 Though it may seem as though once you admit to not having the

7
Rolin M. Perkins “A Rationale of Mens Rea” (1939) Harvard Law Review, vol.52, n0.9
8
-.Francis Bowes Sayre, Harvard Law Review “Mens Rea” [1932] vol.45, no.6
9
Coke (n1)
10
R v Franklin [1883] 15 Cox CC 163
11
Winnie Chan and A.P. Simester “The Cambridge Law Journal “ Four Functions of Mens Rea” {2011}
requisite mens rea, you are allegeable to not being convicted to the full extent of the crime,
but this is not solely it, investigations are done and situations are analyzed to ensure you did
not have a guilty mind whilst committing said act. It also allows for the court to continuously
be recognizing situations where the doctrine should be applied and vice versa. For instance in
the case of Sweet v Parsley12 the defendant was found guilty at first instance for allowing her
property to be used for smoking cannabis, the defendant was convicted of an offence which
had no mens rea requirement. The conviction was later quashed by the House of Lords on the
grounds that knowledge of the use of the premises was essential to the offence. Thus this then
allows for individuals to be weary of when persons are engaging in unlawful activity on there
property, regardless if they are part of the engagement or not, they may be held liable.

I would like to further put forward the stance of the acknowledgement of mens rea element in
definitions of specific unlawful activities which may lead to an avoidance of a conviction. It
is also important the short fall of this in regards to individuals who purposefully withhold
obtaining information that would allow them to be held liable. Case in point, sellers who are
unaware of a customers age should make a sale. Sellers have no reason to ask customers
about their age under a mens rea standard and obtaining information about customers age
subjects sellers to a risk of criminal liability, where as ignorance allows them to capture the
benefits associated with selling without the threat of liability 13

In retrospective, the doctrine of mens rea has undoubtedly allowed the legal system to be
evolutionized in terms of allowing justice to be granted in a way that allows for the guilty
mind element of the defendant to be recognized, whilst simultaneously ensuring the
individual whom committed the act is punished reasonably. Shaping the English law system
in an inclusive setting. Allowing facts that are not only physical to be appreciated.

12
Sweet v Parsley [1970] AC 2
13
Assaf Hamdani, Virgina Law Review “Mens Rea and the Cost of Ignorance” [2013] Vol 93:415