Mens Rea

If you want to prove a criminal offence, you have to prove two things:

  • Mens rea – the guilty mind.
  • Actus reus – the act done.

I’ll get rid of the issue of the actus reus first because for our purposes here, it’s quite quick to do so: you’ve either got witnesses and CCTV that show the assault, the damage or the theft or you haven’t.  You’ve either got circumstantial evidence like forensic evidence which implies the act done or you haven’t.

It is obviously with regard to the first part, that we get into detailed discussions about the potential liability of a suspect who has mental health problems.  Mens rea is also sometimes referred to as, “the mental element” of an offence.  I wonder about the extent to which ‘the mental element’ and ‘mental health’ get conflated and confused?  Surely someone with mental health problems cannot form ‘the mens rea’ because there is something ‘wrong’ or ‘dysfunctional’ in their cognition?

Maybe …

The ‘mental element’ of offences varies enormously: for a person to be guilty of driving a car without insurance, they must simply be found driving a car on a public road without insurance.  Whether they thought they had a policy of cover is not the point: it is whether they did, in fact, have cover that matters.  This is what the law calls an offence of basic intent.  By virtue of a stated case, mental illness is not a defence in law, to an offence of basic intent.

Other offences require certain states of cognition, especially where an offence requires some form of specific intent.  For example, to commit grievous bodily harm with intent, contrary to s18 of the Offences Against the Person Act 1861 (OAPA), a person must have a deliberate intention to inflict grievous injury.  A punch to someone’s face which breaks their eye socket, but which was intended only to frighten them and blacken their eye, would not reach this threshold.  Such an offender may be guilty of committing GBH without intent, contrary to s20 OAPA.


I’ll just quickly repeat my dislike for this term, MDO, before stating that much debate has been consumed over the years as psychiatrists and lawyers try to debate this one out and inform each other.  In the West Midlands, there has been a productive engagement between NHS forensic mental health services, the Crown Prosecution Service and the Police as they seek to work through these complex issues.  My standard joke at these events has been to wonder aloud whether I got invited to give a police perspective or simply to keep the Queen’s Peace as the psychiatrists and lawyers get going.  They are always interesting discussions.

I have heard lawyers and police officers state their understanding that an offender who is so seriously unwell that they have been sectioned under the Mental Health Act is “surely unable to form the mens rea?”  Well, it depends.  Did you find him driving without insurance or grievously injuring NHS staff?  The allegation against a suspect / defendant would influence the answer.

The psychiatrists have often responded by explaining that it would be highly unusual for a patient to be so ill, for example because of psychosis, or so totally affected in their congition by medication, to have absolutely no insight whatsoever into their actions.  Such cases do occur, but are rare

For example, very recently Christopher HAUGHTON was convicted of attempted murder – which is probably the most difficult offence on the statue book to prove, in terms of the high threshold for specific intent – and yet his mental condition was such that he was “suffering mental disorder of a nature or degree which makes it appropriate for him to be detained in a hospital for medical treatment.”  In other words, if his mental condition had been assessed notwithstanding the commission of an offence, he would have been detainable under section 3 of the Mental Health Act.  But he was fully responsible for the offence, despite his paranoid schizophrenia.


So surely, to establish whether or not someone’s mental illness affects their cognition, capacity or liability for an act done, you ask the doctor in charge of that persons care?  Or, ask a doctor who assesses them?

Not necessarily – clearly a psychiatrist is very likely to have very relevant information to offer and opinion to give.  However, this is not a scientific a process as you might hope.  A senior academic forensic psychiatrist helped me understand  many years ago that asking him about mens rea or intent or reckless, is to put legal questions to a medical officer.  Would you ask a lawyer a medical question?  Well, you might ask a lawyer who specialists in medical law a basic medical question, but if it was a significant question around the provision of clinical care, you would not.

You’d ask a doctor!

The forensic psychiatrist concerned also pointed out that whether or not legal thresholds around intent, reckless or mens rea are met – these are potentially matters for legal officers like police officers, prosecutors and judges, but ultimately are a matter for juries.  You’ll remember my blog about the Yorkshire Ripper – five eminent forensic psychiatrists saying broadly the same thing, three of them giving evidence to the court, but the Judge did not just accept these opinions at face value, he put the whole affair before a jury to decide.  This happens in many cases far less notorious, not least in the Christopher NAUGHTON case.


It is my view after working in this area, what we often pretend to be difficulties in proving mens rea, are in fact implicit instincts and assumptions about the public interest test.  I have heard officers say that they’ve been to a psychiatric unit where a nurse or another patient has been assaulted and they’ve said, “You can’t prove the mens rea so we can’t prosecute”.

If the allegation is of actual bodily harm, you need to show is that the person knew they were punching, slapping or pushing someone with the intention of hurting or moving them – and you’re home!  The fact that they were suffering a severe delusion and thought they were punching a Norse God (real example) is not the point:  they knew they were punching someone with a likelihood of hurting them or causing them fear.

Whether the mythological delusion is sufficient to cause you to believe that a different, diversionary approach is more appropriate is not the point, as far as establishing mens rea is concerned.  You may well be able to prove mens rea to a relevant standard, but think there is a better option than prosecution and that there is little public interest in doing so … that is a separate matter!

The Mental Health Cop blog

Badgewon the ConnectedCOPS ‘Top Cop’ Award for leveraging social media in policing.
won the Digital Media Award from the UK’s leading mental health charity, Mind
– won a World of Mentalists #TWIMAward for the best in mental health blogs

ccawards2013 was highlighted by the Independent Commission on Policing & Mental Health
– was referenced in the UK Parliamentary debate on Policing & Mental Health
was commended by the Home Affairs Select Committee of the UK Parliament.



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