Should mental state be considered when defining criminal offences?

Given the difficulty of proving state of mind, would it make more sense to define criminal offences without reference to mental state, leaving mental state to be considered at sentencing in aggravation or mitigation of the offence. Give reasons for your answer. In order to answer this question one must first attempt to understand the definition of "mens rea", the mental element of crimes. A fundamental requirement of criminal law is that a crime has physical and mental elements.

Mens rea was not developed in England until early 1600, judges deciding that it was not enough to convict someone purely on the crime, deeming crimes had to be accompanied by a guilty state of mind or moral blameworthiness. 1 Mens rea itself is purely a generic term, in order to define the mens rea, one must consult the statutory or common law definition of the crime, only then is it possible to know the necessary mens rea for the crime.

2 In order to constitute having the required mens rea three states of mind are generally considered. 3 The problem when proving state of mind is that it is practically impossible to know what somebody was thinking or intending at the time the crime was committed, especially as defendants have been known to confess to crimes they have not committed. It would then, in theory be simpler for courts and jury's to dismiss mens rea when defining the criminal offence, leaving it to be considered at sentencing.

The confusion involved in defining mens rea and also intent is of particular importance when considering this, because potentially the defendant involved can incur consequences more serious than deserved when mens rea has not been properly considered and understood when defining offences. Meaning the defendant would inevitably be found guilty, although depending on aggravating or mitigating factors they may get a better sentencing period.

Motive although generally not accounted for when looking at intention (mens rea is also referred to in statutes as intention4), it can have relevance in looking at the mens rea and whether it is necessary to include the mental state of the accused at trial. In the case of R v Steane5, Lord Goddard stated; "While the idea that one intends the natural consequences of one's acts… it does not relieve the Crown of proving mens rea. " 6 This is essential as presuming what one intends and what the person actually intends can be completely contrasting.

Divulging Steane's motives and mental state is essential when looking at this case as the result of the sentence could be drastically modified by ignoring the mens rea. At the time acts are committed the defendant could be under any amount of duress, affecting mental state and intention, thus possibly change the original offence, in the case of Steane assisting the enemy, this therefore needs to be considered before sentencing is measured.

It is also crucial to consider the Criminal Justice Act 1967, sec. 8; Jury's are not bound by law to find that the defendant had intended or foresaw a consequence if it is a natural or probable consequence of the actions. 7 This is decided in the case of R v Nedrick8, to define the exact criminal offence in this case it is crucial to find the intentions that the defendant had proposed when committing the act, therefore needing to know the mental state to define the offence.

According to Article 6 of the HRA 1998 everyone is entitled to a fair trial9, in order to achieve this, the mens rea therefore needs to be considered for the trial to be measured fairly and accurately as the mental state of a person will have an effect on their actions/judgements, take the case of R v Taafe10, the courts found the defendant innocent as he believed he was smuggling a non illegal substance. Lord lane C. J. "[The respondent] is to be judged against the facts that he believed them to be. Had this indeed been currency and not cannabis, no offence would have been committed.

"11 Had the mens rea of Taafe not been considered, the outcome would have been very different resulting in conviction for a crime that had not been intended or known of, had the mens rea only been considered at aggravation and mitigation Taafe would get a smaller sentence but would still be charged for a crime he was not guilty of. Thus accounting for the various acts in place to protect the rights of everyone, criminals alike, it would not make sense to define criminal offences without reference to mental state.

It has also long been established in the UK that there is a prerequisite that all elements of a crime must be considered including, furthermore for an act to be committed there has to be a mental element to establish what the intentions were, concluding mental state definitely needs to be considered before sentencing. The mental state of the defendant can often only be contingent from actions, and for the actions to be understood when defining the criminal offence the two must go in hand, act and mental state, as the components are intricately linked, mental state is inevitably relevant in defining criminal offences.