Read and comment on the answer written by Judicial Service Main Exam Test Series Test 2 Adv. Ajmal Hasan ( Delhi ), Judicial Service Aspirants written on mens rea.

Question 1. [Critically examine the maxim “Actus non facit reum nisi mens sit rea” and state its expectations.] (500 words)

Answer: The basic principle of English Common Law in relation to criminal liability of a person is that –

“No act shall fall into the category of crime unless the offense is committed by the criminal mind”.

The maxim for this theory is Latin formula:

“Actus non facit reum nisi mens sit rea”

Meaning: “No action is an offense unless it is done with Criminal intent.”

Mens rea : (Defective act or Criminal intent)

“Unless the mind is criminal, the work done will also not be a crime”.

No person shall be punished in proceedings of a criminal nature unless it is proved that his mind is guilty.

If work is not done with a criminal mind, then no crime will be committed. Therefore, no offense can be committed without criminal intent.

Mens Rea + Actus Reus = Crime

Defective intent + defective act = crime

In English Common Law it’s said  to that “No offense is a crime unless they have been committed with a criminal mind or criminal intent”.

Both intention and work should be related to each other. Only then will not the crime be formed if the person has no intent of committing the crime and has committed any act, then it will not be considered a crime.

“No action shall be a crime unless the mind is criminal, not committed with a criminal intent.” That’s why it is called a criminal state of mind. The same formula was accepted by Lord Cannon as the principle of natural justice in English law.

A second maxim emerges from this maxim Latin formula:

“Actus me invito factus non est means actus”.

Meaning: “The work I have done against my will is not mine”.

Therefore, to constitute a crime it is necessary to have both intention and action.

Origin of the Mens rea (state of mind): Crime cannot occur without mens rea.

According to Justice Coke “Actus non facit reum nisi mens sit rea”.

Angastine’s precepts “Reum lingum non facit nisi mens rea”.

This theory started from the time of Justice Coke, it is believed that criminal intention is necessary for the criminal act .

The principle of Mens rea was first described in Coke CJ in a case of theft.

Important case applied by British Common Law

  1. v. Prince 1875 L.R.CCR 154 Judge Black Born determined that if the act is done for lack of legal reason, the intention of the doer, irrespective of his action, would be a crime.

Kavin v. Toulson 1889 23 Q.B.D 168 The doctrine of this case was discussed

“Work alone does not make anyone a criminal if his mind is not even a criminal”.

Shiraz v. De Rutzen 1895 I.Q. B.918 The judge opined that in statute, mens rea is considered inherent until it is proved unfavorable.

Hobbes v. Winchester Co reporation (1910) 2 Q.B 471 Judge Kennedy, propounded the ideology, that we should interpret the Act literally until something makes it clear that the state of mind is necessary.

Note: – The doctrine of operative conduct in English Common Law in India does not apply as criminal law is codified here.

  1. General Exception
  2. Voluntarily or intentionally

Exceptions to the Principle of Mens rea : – In the following cases it is not necessary to have an criminal intent.

  1. Public nuisance
  2. Civil Procedure
  3. Strict liability
  4. Where the principle of substitute liability is applicable.
  5. Crimes punishable with minor fines in which it is impossible to know.

Conclusions: – The court cannot punish an offender in any case without proving his / her criminal opinion, unless the criminal opinion is expressly excluded from the definition of the offense by law.

One thought on “Mens Rea”
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