“Law in its earliest days tries to make men answer for all the ills of an obvious kind that their deeds bring upon their fellows” (Pollock and Maitland, A history of English law, 3rd edition 1899)
The law has for a long time been wrangling with need to identify the “ills of an obvious kind”, as they are needed to work out whether a criminal offence has taken place. The constituent elements of the criminal act can normally be easily identified for any criminal offence. In England and Wales, the terminology is as follows. The “actus reus” is the act of the crime itself, such as the fraud, theft or murder. The “mens rea” – the Latin term meaning “guilty mind” – is usually (not always) one of the necessary elements of a crime. The standard common law test of criminal liability is usually expressed in terms of Sir Edward Coke’s classic statement ‘actus non facit reum nisi mens sit rea’ – this translates as ‘the act does not make a person guilty unless their mind is also guilty’.
Despite some heated discussions of the definition of the mens rea particularly during of the course of last century, the basic importance of the mens rea is not in dispute any more. For example, in the case of R v Tolson [1889]: “Ordinarily speaking, a crime is not committed if the mind of the person doing the act in question be innocent” (1). Furthermore,in his seminal work, Sir James Stephen took this idea further, reflecting on his understanding of classical law:
“The maxim is sometimes said to be a fundamental principle of the whole criminal law, but I think that, like many other Latin sentences supposed to form part of the Roman law, the maxim not only looks more instructive than it really is, but suggests fallacies which it does not precisely state. It is frequently, though ignorantly, supposed to mean that there cannot be such a thing as legal guilt where there is no moral guilt, which is obviously untrue, as there is always a possibility of a conflict between law and morals.” (2)
Fundamental to the “criminal mind” in law is therefore intention. Frustratingly, intention has been given never been given any statutory definition by the judiciary, and its meaning must therefore be worked from a series of judicial decisions. A number of different words are used to express intention in the various criminal laws, and whilst the full definition of intention is clearly outside of the scope of this article, it is worth noting that intention can be either “direct”, where the defendant intends a particular consequence of their act; or it can be “oblique”, where the defendant foresees the certainty of a consequence of their act even if it is not their main objective. In some unique, transferred malice occurs, this when the intention to harm one individual inadvertently causes a second person to be hurt instead. In other words, the brain must somehow be capable of making an appropriate intention, and how the brain might do this voluntarily or not will be the subject of future articles.
Back to the jurisprudence of the mens rea, the nature of the criminal decision has, however, been clarified by the case law of England. David Ormerod in Smith and Hogan’s Criminal Law provides that, “While there is a moral basis for the notions of fault and degrees of fault in the criminal law, legal “fault” does not necessarily involve moral blameworthiness according to the English case of R v Kingston [1994] from the House of Lords.” In this textbook, sometimes cited itself in judgments in the House of Lord, Lord Mustill is quoted from the judgment of that case which provides that, “I would therefore reject that part of the respondent’s argument which treats the absence of moral fault on the part of the appellant as sufficient in itself to negative the essential mental element of the offence.”
That the moral aspect of an action is irrelevant may seem odd as it can be argued that moral responsibility is a particularly relevant area of philosophy and psychology to the law and the criminal justice system (5). Philosophical reflection on moral responsibility has historically relied upon one of two broad interpretations of the concept: (a) the merit-based view, according to which praise or blame would be an appropriate reaction toward the candidate if and only if she merits—in the sense of ‘deserves’—such a reaction; or (b) the consequentialist view, according to which praise or blame would be appropriate if and only if a reaction of this sort would likely lead to a desired change in the agent and/or her behavior. Versions of the consequentialist view have continued to further concept of moral responsibility, and have increasingly focused on offering alternative versions of the merit-based view and questioning the assumption that there is a single unified concept of moral responsibility (6). Therefore, recent contributions from cognitive neuroscience and moral responsibility have a potentially important role in evolving further our definition of the mens rea in law.
References:
(1) 23 QBD: 185-6
(2) History of the Criminal Law (1883)
(3) R v Kingston 1994 3 All Er 33 [House of Lords]
(4) Smith and Hogan’s Criminal Law. Ed. David Ormerod 9th Ed. Oxford University Press: Oxford, UK.
(5) Dennett, Daniel, 2003. Freedom Evolves (New York: Viking Press).
(6) Strawson, PF (1974) Freedom and Resentment. Proceedings of the British Academy 48; Reprinted in Freedom and Resentment and Other Essays. Oxford 1974, pp. 1-25. References are to the reprinted version.
