Criminal law

Essay by blingin_keisha November 2007

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At the outset, it might be likely that the meaning of 'intention', such a fundamental term, would have been matured long time ago. It is, however, not the real circumstances at all. In actual fact, the cases are inconsistent, judicial opinion has recently changed and there is still some room of ambiguity due to difficult policy issues. Henceforth, the definition of intention with relations to mens rea would be discussed, and the major judgments which were disagreeing would be argued to consider if the practice of leaving the issue of intention to the jury without any judicial guidance could be workable and whether it would lead to inconsistent decisions as a consequence.

To begin with, the literal meaning of 'mens rea' is the Latin for 'guilty mind', which is somewhat misleading in nature. By tradition, it is referred to the state of mind of the person committing the crime, which is also the mental element required by the definition of the particular crime.

The principle of mens rea expresses that defendants should be hled criminally liable only for events or consequences which they intended or knowingly risked. Basically, there are three main states of mind which separately or together can constitute the necessary mens rea of a criminal offence, including Cunningham recklessness (subjective test), Caldwell recklessness (objective test) --- and lastly, specific intention.

Fundamentally, these three categories involve different levels of 'fault' in the criminal law, which is outlined concisely and clearly in the draft Criminal Code Bill. Clause 6 provides that 'fault element; means an element of an offence consisting - (a) of a state of mind with which a person acts; or (b) of a failure to comply with a standard of conduct; or (c) party of such a state of mind and partly of such a failure…'...