Mens Rea: The Mental Element

Mens rea known as the “mental element” of an offence has long been regarded as a crucial factor in criminal law, aiming to ensure that only those who are blameworthy are punished for crimes thus inputting the role of fairness into the criminal law system. H.L.A Hart agreed with this fairness rationale arguing that it would be wrong to convict and punish anyone who had not been given ‘a fair opportunity’ to exercise the capacity for ‘doing what the law requires and abstaining from what it forbids.’ “The general rule is that no crime can be committed unless there is mens rea.” But this is departed from when creating strict liability offences.

Strict liability offences require “proof that the defendant performed the prohibited conduct, but do not require proof that the defendant was blameworthy” . There are many interpretations of the term, one of the most accepted formal concept details strict liability offences as those ‘that contain at least one material element for which there is no corresponding mens rea requirement.’ Strict liability offences are not usually indictable offences and are generally regulatory. For example in Harrow LBC v Shah and Shah

The majority of driving offences are contained in the Road Traffic Act 1988. This essay will mostly examine causing death by unlicensed, disqualified or uninsured driving (s3ZB) and causing death by careless or inconsiderate driving. (s2B) There is often a distinction between constructive and non constructive strict liability offences. These offences are considered to be constructive strict liability since the prosecution does not need prove there was any fault in relation to causing the death.

The case of R v Hughes will be used throughout this essay to supplement ...

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...er himself. If the risk to the public is so large, so too should be the punishment even if the result was due to pure luck.

However this theory of ‘intrinsic risk’ does have some inadequacies specifically in relation to a section 2B offence.

The offence of driving carelessly is judged to an objective standard, the standard of a reasonable man and his driving skills. This poses a number of issues as firstly, what is the reasonable standard and when does the defendant fall under that standard. It is part of human nature to make errors from time to time, whether they are minor or major. Every driver at some point through their driving history has made some error. So when the mistake is a lapse in concentration and they were just under the standard of a careful driver but an unlikely outcome of death occurs, it undoubtedly cannot be justified to convict that person.