Page "Mens rea" Paragraph 35

The court will have little difficulty in establishing mens rea if there is actual evidencefor instance, if the accused made an admissible admission.

This would satisfy a subjective test.

But a significant proportion of those accused of crimes make no such admissions.

Hence, some degree of objectivity must be brought to bear as the basis upon which to impute the necessary component ( s ).

It is always reasonable to assume that people of ordinary intelligence are aware of their physical surroundings and of the ordinary laws of cause and effect ( see causation ).

Thus, when a person plans what to do and what not to do, he will understand the range of likely outcomes from given behaviour on a sliding scale from " inevitable " to " probable " to " possible " to " improbable ".

The more an outcome shades towards the " inevitable " end of the scale, the more likely it is that the accused both foresaw and desired it, and, therefore, the safer it is to impute intention.

If there is clear subjective evidence that the accused did not have foresight, but a reasonable person would have, the hybrid test may find criminal negligence.

In terms of the burden of proof, the requirement is that a jury must have a high degree of certainty before convicting, defined as " beyond a reasonable doubt " in the United States and " sure " in the United Kingdom.

It is this reasoning that justifies the defenses of infancy, and of lack of mental capacity under the M ' Naghten Rules, an alternate common law rule ( e. g., Durham test ), and one of various statutes defining mental illness as an excuse.

Moreover, if there is an irrebuttable presumption of doli incapax-that is, that the accused did not have sufficient understanding of the nature and quality of his actionsthen the requisite mens rea is absent no matter what degree of probability might otherwise have been present.

For these purposes, therefore, where the relevant statutes are silent and it is for the common law to form the basis of potential liability, the reasonable person must be endowed with the same intellectual and physical qualities as the accused, and the test must be whether an accused with these specific attributes would have had the requisite foresight and desire.