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On Mens Rea in Criminal Law of England and Wales

Author: WangYuTian
Tutor: MaKeChang
School: Wuhan University
Course: Criminal Law
Keywords: mens rea intention recklesssness knowledge direct intention indirect intention
CLC: DD914
Type: PhD thesis
Year: 2005
Downloads: 857
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Abstract


From its origin, the concept of "mens rea" is completely a subjective term in common law. The modern mens rea in criminal law of England and Wales means "guilty mind", it focuses on the consciousness. It is often understood from its strict menaning in criminal law of England and Wales, the core concepts of mens rea are intention, recklessness, and knowledge, it doesn’t include negligence, objective recklessness and strict liability in its extension. The strict meaning of mens rea is not corresponding with "Zui Guo"in our criminal law. In criminal law of England and Wales, mens rea and actus reus are two necessary elements for the constitution of a crime. Actus reus include conduct, consequence, and circumstance. The specific content of mens rea is based on the elements of actus reus in the definiton of a crime.The arrangements of explaining the core concepts of mens rea by different scholars are different, which is closely related with the special position of "knowledge" in criminal law. Among these different arrangements, Professor Russell Heaton’s arrangement is typical, he divides mens rea into two parts: mens rea as to conduct and consequence, mens rea as to circumstance. In mens rea as to conduct and consequence, he divides it into intenion and recklessness, in mens rea as to circumstance, he divides it into intention as to circumstance, knowledge and belief, willfully blindness, and recklessness. This arrangement is clear and logical, and is also the comparing sample of this thesis.The actus reus in criminal law of England and Wales is roughly corresponding with the objective aspect in our criminal law, but not conduct. In criminal law of England and Wales, the main opinion is to distinguish these terms such as actus reu, act, and conduct, they cann’t be used as alternatives. From pointview of comparative law, the possession crime in criminal law of England and Wales is different from that in our criminal law. It is not a third conduct in criminal law of England and Wales, which is independent on act and ommision. Possession in our criminal law is also not a third and independent conduct. Possession is not only constituted by act, but also constituted by ommision. In criminal law of England and Wales, there are disputes among choice theory, capacitytheory, and character theory, conflicts between subjectivism and objectivism, which is related to mens rea terms closely, supporting different mens rea terms. Judging from criminal law of England and Wales, subjectivism is not liability attribution out of subjective, objectivism is not liability attribution out of objective.There is no definition of intention in common law. In theory, there are sixunderstandings on intention in common law: pure intenion view, oblique intention view,one package intention view, moral elbow room view, Haym case view, and Smith caseview, among these, the influence of Haym case view, and Smith case view are limitedsince they conflict with the present guideline on intention in case law. There are somemisunderstandings in the research of some Chinese criminal law scholars. Case law hasdeveloped two forms of recklessness in criminal law of England and Wales, i.e,subjective recklessness and objective recklessness. They are competing with each otherin criminal law in recent two decades. With the RvG case of 2003, Caldwellrecklessness is abolished. The fall and rise of objective recklessness is logical. There isalso exsiting some misunderstanding on recklessness in criminal law of England andWales. On the one hand, subjective recklessness and objective recklessness are not"combined guilty mind" as what some Chinese scholar are understanding at present, onthe other hand, recklessness in criminal law of England and Wales is not an "confusedterm" in theory and judicial practice. The theory position of recklessness in criminal lawof England and wales is similar as that of "indirect intention" in our criminal law, theyhave the same function in theory. However, their structures are a little different. Judgingfrom case law of England and Wales, the subjective recklessness is more strict andwider than "indirect intention" in our criminal law. Knowledge in criminal law ofEngland and Wales is about the circumstances in difiniton of a crime, it has three kindsof forms in case law. Illustrations to knowledge and its related terms are different indifferent criminal law books, it should be discussed from two levels in theoreticalresearch. There are some similarity and difference between knowledge and "Ming Zhi"in our criminal law.There are horizental and vertical structures in core concepts of mens rea terms in criminal law of England and Wales and criminal "intention" in our criminal law theory.Looking from macroscopic aspect, criminal law of England and Wales adopts the "decomposing method", while our criminal law adopts "evaluation method" in horizental structure, these two methods don’t contradict with each other. The evaluation method of our criminal law is more abstract, decomposing method is helpful for us when we analysis "harmful consequence to society" in our criminal law. Looking from vertical aspect, the structure of criminal law of England and Wales is "going forward one by one" model, the similar structure is exsiting among "direct intention", "indirect intention", and "advertent negligence" in our criminal law, too. Looking from microcosm aspect, in horizental structure, our criminal law adopts "listing up" method on the objective aspects in crime-constitution theory, while the criminal law of England and Wales divides actus reus into conduct, consequence, and circumstances. The "means or method of perpetrating a crime "should be categorized as the content of conduct in our criminal law. The dividing method of criminal law of England and Wales can be a reference for our criminal law. The "state affair" crime in criminal law of England and Wales is different from the "state affair" crime in our criminal law. In vertical structure, as to the question that whether it is "hope" or "disregard" when perpetrator is aware of the certainty of the result of his conduct, "certainty" here should be understood according to the ordinary meaning of the words by common people in our criminal law, just like that of in criminal law of England and Wales. First of all, "hope" and "disregard" are psychological fact, but they are also legal criteria, which has functions of evaluation in criminal law. There are two kinds of purpose facts in fact: parallel purpose fact straightline purpose fact. In fact, it can be "disregard" if one is aware of the certainty of the result of his conduct, however, it should be categorized as "direct intention". This is a contradiction between legal evaluaion and legal fact. Legislation should make it clear and be amended in order to get rid of this contradiction. The "tolerence" type of indirect intention theory confuses feeling and volition, and doesn’t reflect the special psychological fact, it should not be supported in our criminal law. As for the dividing line between "indirect intention" and "advertent negligence", the possibility of the result is an important reference when judging the nature of a crime. Criminal theory should analyse the meaning of "disregard" from the legislation andpsychological fact, on one hand, one can’t deny the volition nature of disregard, on the other hand, it should not be enlarged on the meaning of the word. The clause of 14 in our criminal code is not clear on the question of whether it is disregard or hope when one is aware of the certainty of the result of his conduct, the dominant theory at present can’t explain it clearly, too. Hence, it is necessary to amend the clause in legislation or explain it properly in judicial practice.

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