You may have heard the Latin phrase Mens Rea, which means “guilty mind.” This refers to an intention on the part of the alleged offender to commit the wrongful act or omission in question. Without evidence of a clear intention to commit a crime, the act in question is deemed not to be criminal; therefore, it is outside the criminal jurisdiction. The guilty mindset must apply to some part of the series of actions leading to the crime, but not necessarily all of them.
The level of intentionality in a wrongful act or omission is paramount to a successful prosecution. If a person acts in negligence, then they cannot be said to have committed a crime as they did not form the necessary purposeful mindset as to the commission of a crime. It does not matter how many people suffer or what the loss is to the victim, or what the gain is to the perpetrator, if the specific intention to commit the crime is not evident, then there has been no crime. A wrong without a direct and specific intent to commit the wrong is merely a tort. A tort can still be a tort if there is complete criminal intent, but a crime is not a crime without it. This aspect of the law is vital to maintaining the moral underpinnings of the criminal law, as without it a person could be convicted of crimes they had not the slightest intention to cause or be involved in, and which a mere slip-up or lack of care led to.
This point leads into a question of whether the defendant was in sufficient control of their actions and thoughts at the time. There is no automatic exoneration for anyone who is affected by drugs or alcohol or mental illness. However, there is allowance that a person may be so heavily affected that they can no longer understand the nature or effect of their actions such that there is no longer a capacity to form a criminal level of intention. The same is to be said of actions which are entirely an involuntary response, such as a sudden reflexive recoil from a source of pain occasioning accidental assault to another person.
There are, nevertheless, a few possible charges in many jurisdictions which do not carry this requirement. There is manslaughter, industrial manslaughter, culpable driving and then there is criminal negligence. Each of these are homicide charges which do not require the level of intentionality that a murder charge does. These are dealt with in the Homicide section later, but briefly, both Common Law and Parliament have considered the taking of a life to be such a serious matter that a criminal conviction and a prison sentence is a necessary response to any act or omission, be it reckless or even negligent, that has such a consequence.
An accused can be found guilty of a crime if they act with disregard to likely consequences. Take, for example, a situation in which a person places a container filled with a liquid fuel near an open flame, such that the explosive is eventually detonated through ignition of increasing levels of vapour around the flame. The likelihood of this outcome is well known and should have been on the mind of a reasonable person in the accused’s position. The accused therefore is deemed to have sufficient intentionality to be convicted of a crime. The accused must be shown to have known of the risk, in the sense that a reasonable person in his/her situation would have, in order for them to be shown to have disregarded it.
The risk must be substantial, however. A mere risk or outside chance is not a basis for a conviction; rather actual probability is needed, meaning that at least an equal chance of the damage alleged must be evident. The risk must also be one that is not justified by circumstances. For example consider a weapon sought to be used in defence of another person in mortal danger, but the one who has possession it seeks someone else thought more able to use it. A delay is introduced allowing an innocent victim to be killed or injured. It might be considered whether the person first in possession of the weapon has acted recklessly by not using it immediately. Yet, if that person was well aged or suffering illness or disability, then the circumstances justify the risk that was taken with the victim’s wellbeing.
There are a few crimes, such as manslaughter, which require only that the accused by negligent in their conduct. Think of the above example of passing a weapon from one to another and creating a delay which allows a victim to be harmed. If the person first in possession of the weapon was to insist on using it, in spite of incapacity, and they themselves killed the victim whom they were meaning to defend, then there would be an arguable case of a negligent crime having been committed and a conviction of manslaughter would be reached.
If a crime is committed in such a manner that the actual victim was not the person who was targeted in the first place, the law deems that the mens rea aimed at the intended victim is “transferred” so that it might as well have been a crime aimed at the actual person suffering damage. An example is where someone intends to shoot a particular person, but instead ends up shooting a bystander.
As a technical consideration, for this to work the mens rea of the crime – the guilty intention – has to correspond to the actus reus – the guilty act. That is to say, an attempt to pick someone’s pocket resulting in events leading somehow to assault occasioning grievous bodily harm to a third person does not give rise to transferred malice. That is not to say the assault is not to be considered as a crime on its own. It is a separate issue to be charged separately.