Mens rea terms are designed, and can only be understood, in relation to their corresponding target. We cannot experience an abstracted state of ‘intention’ or ‘knowledge’ simpliciter for example, it would be illogical. Rather, when we speak of intentions or knowledge, we speak of intended outcomes, of known facts, and so on. Thus, when mens rea terms are defined for legal purposes, it is necessary to identify corresponding targets (or categories of target) to give those definitions meaning. Beyond intelligibility, correspondence is also necessary for mens rea terms to perform their normative role within an offence. Just as we cannot experience an abstracted state of ‘intention’; it would be equally illogical to blame D for so intending. Mens rea terms facilitate the criminal blaming of D because they provide an essential link between her agency and her wrongful conduct; as well as grading the culpability of that link across the different mens rea terms. Thus, for legal mens rea terms to function, they must do so in clear correspondence with the actions or events for which we are assessing D’s blame. In this article we explore the limits of current mens rea terms, defined in relation to present-act circumstances and present-act results, when applied to ulterior targets within inchoate and complicity liability. We contend that longstanding problems in these areas are best resolved by redefining mens rea terms in relation to the unique target elements contained within such offences.
Dr John Child is Reader in Criminal Law at the University of Birmingham, and his research focuses on the relationship between criminal law and neuroscience. This paper is coauthored with Dr Adrian Hunt, Senior Lecturer at the same University.