mens rea is the mental element of a crime.
the mental element of a crime is called the?
mens rea
constructive malice was the doctrine that malice aforethought, the mental element for murder, could be attributed to the defendant if death was caused during the commission of another felony (such as robbery or burglary). section 1 of the act abolished constructive malice except where the intention implicit in the other crime was an intention to kill or to do grievous bodily harm. thus, the automatic linkage between the other crime and the murder was broken, and juries were then required to consider more directly whether the accused was culpable when engaging in the conduct resulting in death. but this made the act unclear in its effect. although the marginal note to the section purports to abolish the doctrine of "constructive malice", it did not abolish the concept of felony, the rules relating to the arrest of felons or the general rules specifying the test for the mental element which the juries were to apply. hence, the act did not abolish the principles of expressed malice or implied malice, i.e. malice could be implied by the words and expressions used by the accused, or there was a set of circumstances from which malice could be implied. these were objective tests that enabled the court to impute or "construct" the malice. this continuing common law was the basis of the decision in "dpp v smith" where the lords confirmed that neither expressed nor implied malice had been repealed by the section. it was not until the criminal law act 1967 abolished the distinction between felonies and misdemeanours that the old common law rules on malice for the proof of "mens rea" in felonies could no longer apply.
homicide act 1957
baker also put this theory forward in his article entitled: baker, dennis j, foresight in common purpose complicity/joint enterprise complicity: it is a maxim of evidence, not a substantive fault element (october 10, 2012). dennis j. baker (draft chapter (2013/14): reinterpreting criminal complicity, forthcoming. available at ssrn: http://ssrn.com/abstract=2507529. the title of baker's paper is basically part of the ratio of r v jogee as far as the mental element is concerned. likewise, in the same paper baker argued that all complicity required factual assistance or encouragement and that joint enterprises were just another way of encouraging and thus there was no separate form of complicity based on mere association and foresight. other academics took the view that joint enterprise was a separate form of complicity with recklessness as its mental element, but attacked the policy injustice of such an approach. david ormerod and karl laird, smith and hogan criminal law, (oxford university press, 2015) at 238. and some thought it even just: see a. p. simester, the mental element in complicity, 122 l.q.r. 578, 598-599 (2006); jeremy horder and david hughes, joint criminal ventures and murder: the prospects for law reform, 20 king’s l.j. 379, 398 (2009);g.r. sullivan, doing without complicity, j. commonwealth crim. l. 199, 206 (2012).
complicity