Introduction
The concept of mens rea, or the “guilty mind,” has long been regarded as a cornerstone of criminal liability, playing a central role in deciding moral blameworthiness. Yet, despite its centrality in the criminal law, the existing framework of the law of mens rea is still largely focused on current acts, without adequately covering offences relating to future acts. This article presents a critical examination of the conventional framework, asserting that it inadequately encompasses the intricacies associated with a diverse array of offences, including attempts, conspiracies, and complicity, wherein criminal behaviour develops progressively over time. Such offences extend beyond the immediate present and entail a dynamic interaction between current actions and their subsequent repercussions. Yet the continued reliance of the law on a static conception of mens rea, referred to herein as the “current fault model,” is inadequate to meet the challenges that persistent crimes pose.
The Static Conception of Mens Rea: A Limitation in Addressing Prospective Offenses
Before focusing into specific examples, it is essential to understand the broader implications of a rigid, static interpretation of mens rea within criminal law. The traditional framework, with its focus on current actions and immediate consequences, has served as the backbone of criminal liability for centuries. However, this approach falls short when addressing offences that do not fit neatly into this present-focused mold. Crimes that involve planning, ongoing schemes, or actions intended to produce future harm challenge the conventional boundaries of mens rea, revealing significant gaps in how the law conceptualizes criminal intent and culpability over time.
The limitations of the Current Fault model in Adressing Future Conduct
The inadequacy of this approach is perhaps most dramatically illustrated by offences directed towards prospective conduct, for which the traditional conceptions of mens rea are patently unsatisfactory. Inchoate offences, whether attempts or conspiracies, classically are acts of preparation which, though they do not bear fruit immediately, are treated as criminal because of their potential to produce harm farther down the track. The current framework, operative at an intent or recklessness level at the time of the offence, gives little weight to the dynamic aspects of a defendant’s culpability as they unfold over time. The following essay makes a case for the redefinition of mens rea in order to include both present and prospective dimensions of criminal behaviour. It is a requirement not only to achieve theoretical consistency but also to ensure that criminal liability is allocated properly, in relation to the defendant’s culpability, where the unlawful act extends over a period of time. In bridging the gap between the two concepts, the legal system would, more appropriately, achieve its aim of dispensing justice amidst a constantly changing law.
The need for a new conceptual framework is illustrated by the fact that the conventional understanding of mens rea, which was mainly developed for contemporaneous offences, is inadequate for prospective offences. This paper considers crimes such as conspiracy and facilitation or assistance in the commission of a crime, for which a broadened notion of mens rea is required to capture their preparatory or incomplete nature. The old definitions of mens rea, basically oriented to intention, knowledge, or recklessness in the present, scarcely encompass the full range of culpability in any situation where the acts of the accused are oriented to future consequences. What is needed now instead is an aspiration to a more subtle concept of mens rea, tailored to reflect the temporal aspect of these offences and relate legal to true moral responsibility of the accused.
Differentiating between Culpability and Offence Characteristics: The Case for Redefining Men’s Rea to Address Future-Oriented Crimes
The limitations of the traditional mens rea framework become particularly evident when considering offences that target prospective conduct, such as inchoate crimes like attempts and conspiracies, which involve preparatory acts with the potential to cause future harm. These offences highlight the shortcomings of a static, present-focused conception of mens rea, as the current model fails to account for the evolving nature of a defendant’s culpability, which may develop progressively and dynamically over time.
It also argues that the process by which a more sophisticated understanding of mens rea is worked out has profound implications for practical application under criminal law. The system in place presently can penalise serial criminals while protecting the purportedly shifting level of culpability of each offender in their series of criminal activity. To this end, the development of legal doctrines that correct the inadequacy of the framework used presently in analysing crimes that are future-oriented is necessary. It is in this way that law may achieve increased
fairness and justice in its application, securing the imposition of liability in a manner that reflects the actual moral responsibility of the defendant.
Moving Beyond the Present-Fault Paradigm: Toward a More Just Legal System
Central to this discourse must be the differentiation of two questions of importance concerning mens rea. The first is with respect to the scope and nature of culpability that mens rea language demarcates, and it is a subject that has consumed much ink and paper within legal academia with regard to the interpretations of notions such as ‘intention’, ‘recklessness’, and ‘knowledge’. The second concern, equally weighted, is with the relation of mens rea to specific parts of an offence. How should the meaning of a single mens rea word change according to offence characteristics? The legal meaning of ‘recklessness’, for instance, might be very different depending on whether it is a result element- that is, the defendant must foresee a risk that his or her act might cause a particular consequence- or a circumstance element, in which a defendant need only foresee a fact, and not causation. Making this distinction is key to understanding how defendants interact with the different elements of an offence and emphasises the need for a different approach to the mens rea with regard to offences that are not context-specific.
In contrast, future-conduct offences involve not only the defendant’s actions at T1 but also a subsequent event (referred to as ‘T2’) that the defendant, or another, will carry out at a later time. Such offences remain one of requiring mens rea to coincide with the defendant’s conduct at T1, though the ambit of mens rea extends to future events—namely, the circumstances and outcomes of T2 actions. This multi-stage structure is prevalent across various areas of criminal law, including burglary under section 9(1)(a) of the Theft Act 1968, which criminalises entering a building as a trespasser (T1) with the intent to commit an offence like theft or grievous bodily harm at T2. This pattern is also found in the inchoate offences of attempts, conspiracy and complicity, for liability to be established the conduct at T2 needs to be completed.
Complicity and the complexities of Future intention
Complicity, in particular, presents further complexities due to ongoing uncertainty about the specific mens rea required of the defendant in relation to the principal offence. Current interpretations suggest that the defendant must have intention regarding the principal’s future actions and mens rea, as well as knowledge of the associated circumstances and outcomes. This has, understandably, led to controversy over whether a defendant can ‘know’ the future elements of the principal’s offence at T1—a difficulty tacitly recognised in the Supreme Court’s approach to conditional intention in Jogee (R v Jogee 2016). The crux of the issue lies in the mistaken application of causal and objective elements at T1, when the relevant point of agency actually occurs at T2. To address this, it is suggested that if the defendant intends at T1 for the principal to act at T2 with the necessary mens rea for the principal offence, the defendant’s intention or knowledge can be attributed accordingly.
This is illustrated by Maxwell (R v Maxwell (1978), where liability was found despite the defendant’s lack of knowledge concerning the principal’s specific offence but with an intention to assist a range of acts. The ambit of complicity need not be restricted, however, to cases in which both defendant and principal share an identical mens rea; perhaps the defendant intends at T1 that the principal act at T2 while the latter is reckless. If, at T1, the defendant holds a belief that the victim will not consent to the principal’s actions at T2, and does so irrespective of the principal’s beliefs, liability should still attach. This approach avoids the analytical error because the defendant’s belief is future-focused, concerning the circumstances as they might exist at T2, rather than requiring present knowledge or intention.
It is argued that the current definitions of mens rea are not well-suited to address these future-oriented elements. Legal standards designed for present-conduct offences are being forced into situations involving future conduct without the necessary adaptations. This creates what is termed the ‘present-fault paradigm: present-focused mens rea standards are applied to offences that are concerned with future actions, and from this arises a raft of conceptual and normative difficulties. Meeting these challenges will require new definitions and analytic frameworks that more accurately address mens rea for future conduct, ensuring that legal standards reflect the full scope of the defendant’s culpability.
In conclusion, neither of the approaches based in the present-fault paradigm can return an adequate solution to the complexities of future conduct offences. To treat the principal’s actus reus at T2 as an intended consequence of the defendant’s actus reus at T1 is conceptually flawed; to treat the principal’s conduct as a known circumstance fails to do justice to the defendant’s culpability. Hence, what is called for is an alternative approach that goes beyond the present-fault paradigm. One potential direction involves adapting the definition of intention as it relates to the defendant’s own future actions—framed as a conditional commitment at T1 to act at T2—to also apply to the future actions of another. While this approach offers consistency and has been partially endorsed by the Supreme Court in Jogee, it ultimately falls short because the defendant cannot pre-emptively commit to another person’s future actions.
This underscores the need for a new, distinct definition of ‘intention as to the future actions of another,’ treating the principal’s T2 actions as a separate and distinct target rather than conflating them with the defendant’s present-focused intentions. Adopting this redefined framework is crucial for resolving the current conceptual impasse, ensuring that the law can present an accurate reflection of the complexities of future conduct offences, hence leading to a more coherent and just legal system.
This article is written by Siyma Mumtaz, (Doncaster UTC).
References
- IT’S ONLY WORDS: ON MEANING AND MENS REA – The Cambridge Law Journal, R v Jogee (Appellant) – The Supreme Court.
- Beyond the Present-Fault Paradigm: Expanding Mens Rea Definitions in the General Part. Oxford Academic.
- Northern Ireland v Maxwell, Public Prosecutions.
- R v Maxwell – The Supreme Court.
