ABSTRACT
We saw in Chapter 2 that the prosecution must prove that the defendant brought about the prohibited act (or in some cases an omission or state of affairs). The prosecution’s next task is to prove that the defendant did this with the state of mind prescribed by the definition of the crime. This is usually referred to as the mens rea, but is sometimes also described as the ‘fault element’ or ‘mental element’. However, some caution is necessary here because ‘fault’ may be defined more broadly than mens rea or ‘mental element’. So, there is no doubt that negligence is ‘fault’ but, traditionally, it is not included within the definition of mens rea. At common law, mens rea usually means intention or recklessness. If the prosecution merely has to prove negligence to establish the further element for liability, then the offence is one which requires proof of fault but not of mens rea. Yet, such distinctions cannot be made with absolute conviction, since the courts have recognised a concept of ‘objective’ recklessness which very closely resembles negligence. As Nicola Lacey observed in her article, ‘A clear concept of intention: elusive or illusory?’:
There is a large number of offences in which the prosecution does not have to prove any further fault element at all, neither mens rea nor even negligence. These are known as offences of strict liability (though, confusingly, judges sometimes refer to absolute liability which, as explained in 3.8, below, is an even harsher form of liability).
