Mens rea in modern criminal law
The purpose of the thesis is to critically analyse the current legal forms of mens rea which are shared by common law and statute, namely intention, recklessness, malice, negligence and strict liability. I shall argue that the current concepts are (i) inadequate since they lack conceptual clarity, consistency and cohesion; (ii) that the concepts of intention and recklessness lack terminological consistency since their parameters extend to states of mind which properly belong elsewhere and (iii) that they are unable to draw out significant moral distinctions in moral culpability with which agents perpetrate criminal offences. The major cause for the inadequacies of the present structure lies in the number of mental states which constitute mens rea at current law. They are so few that judges have seen fit to manipulate the contours to serve the needs of justice in the cases. This has led to considerable conceptual and terminological confusion both within and between the concepts. But the major failing of the current structure of mens rea, rooted in the same cause, is that it does not sufficiently draw out significant differences in moral status between agents who perpetrate harm. It fails to do this in two ways. First, the concepts of intention, recklesness and negligence are broad in their scope so that each includes a fairly wide area of moral turpitude. Second, where a particular offence admits more than one form of mens rea the conviction does not discriminate between the various requisite mental states and thus denies accurate ascriptions of moral culpability over a large area of mental attitude toward proscribed harm. I shall offer a new structure of wens rea which would be constituted by (i) direct intention, (ii) comcomitant intention, (iii) purpose, (iv) objective, (v) gross recklessness, (vi) simple recklessness, (vii) gross negligence and (viii) simple negligence. I shall argue that the proposed structure is preferable since the more sophisticated set of fault terms would be (1) conceptually clear, consistent and coherent, (ii) would be more terminologically consistent and (iii) would more clearly express the moral status of the agent in each case concerning the harm brought about by him. I shall demonstrate that the proposed structure is more able to express differences in moral culpability because (i) the more sophisticated set of mens rea terms would provide a better gradation in moral fault and (ii) it would be a requirement of the proposed structure of mens rea that the court or jury determine the precise mental state with which the agent perpetrates a criminal offence and that mental state would be recorded with the conviction.