Subjective or objective mens rea_ anti money laundering regulation

Subjective or objective mens rea?

The dividing line between ‘recklessness’ and ‘negligence’ is also important. It provides the dividing line between the subjective and the objective approaches to mens rea.

There are two basic methods of judging mens rea. First of all we can examine what was going on in the defendant’s head; what he or she was thinking about, was aware of, was planning, was desiring, etc. We call this the subjective approach; we are focusing on the subject’s perspective. Alternatively we can focus on the quality of the defendant’s conduct; was it silly, foolish, dangerous, careful, diligent, etc? We call this the objective approach; we are focussing on how the behaviour compares to an objective standard.

With a subjective mens rea we have to examine what the defendant was ‘thinking,’ using ‘thinking’ in a very broad sense.

We will examine his behaviour because that may give us clues.Anti money laundering regulation he had shouted, I’ll kill you! He had aimed the gun and squeezed the trigger. This behaviour implies that he intended.

We are not judging the behaviour, rather we are using it to try and work out what ‘was going on’ in the defendant’s head. Janine may say it was all a mistake, she only meant to frighten barry. The judge and jury will have to take that into account in trying to discover whether janine intended barry’s death. We cannot assume, just because most people would have intended, that this defendant also did. (section 8 of the criminal justice act 1967 prohibits us from doing so.) the defendant might only have been trying to frighten.

But we can infer intention from the facts. We do not have to believe the defendant. Ideally we would want much more information. Perhaps there is evidence of a long-term hatred of the victim, a motive; perhaps there is a confession.Anti money laundering regulation we might infer that he intended because he said he intended in his confession. But he may now be saying his confession was false. The judge or jury will have to decide whether they are satisfied, beyond reasonable doubt, that the actus reus was intended.

With an objective mens rea we couldn’t care less about what the defendant was thinking. We are only concerned with the quality of the behaviour. We compare it with others’ standards was it dangerous, careless, etc.. Was driving at that speed, in those conditions, careless? Was swinging that sword, so close to people, dangerous?

Identify the words that involve a thought process, which are subjective. Contrast them with the words that involve making a judgement, which are objective.

‘planned’, ‘desired’, ‘aware’, ‘foresee’, ‘anticipate’, ‘willingly’ are all subjective words. They require a ‘mental operation’.Anti money laundering regulation they require the brain to be exercised. ‘dangerous’, ‘foolish’, ‘reckless’, ‘risky’, ‘careless’, ‘reasonable’, ‘unwisely’ are all objective words. They involve passing a judgement on some behaviour.

If an offence has a subjective mens rea then the judge and jury must examine what the defendant was ‘thinking.’ not what he or she should have been thinking, not what others might have thought in his or her circumstances, but what he or she was actually ‘thinking.’ if the offence has an objective mens rea then the judge and jury must focus on the quality of the behaviour. If it is a strict liability offence then the judge and jury should not look for a mens rea as it is irrelevant; only causation of the actus reus.

Subjective or objective mens rea?

The dividing line between ‘recklessness’ and ‘negligence’ is also important. It provides the dividing line between the subjective and the objective approaches to mens rea.Anti money laundering regulation

There are two basic methods of judging mens rea. First of all we can examine what was going on in the defendant’s head; what he or she was thinking about, was aware of, was planning, was desiring, etc. We call this the subjective approach; we are focusing on the subject’s perspective. Alternatively we can focus on the quality of the defendant’s conduct; was it silly, foolish, dangerous, careful, diligent, etc? We call this the objective approach; we are focussing on how the behaviour compares to an objective standard.

With a subjective mens rea we have to examine what the defendant was ‘thinking,’ using ‘thinking’ in a very broad sense. We will examine his behaviour because that may give us clues. He had shouted, I’ll kill you! He had aimed the gun and squeezed the trigger. This behaviour implies that he intended.

We are not judging the behaviour, rather we are using it to try and work out what ‘was going on’ in the defendant’s head.Anti money laundering regulation janine may say it was all a mistake, she only meant to frighten barry. The judge and jury will have to take that into account in trying to discover whether janine intended barry’s death. We cannot assume, just because most people would have intended, that this defendant also did. (section 8 of the criminal justice act 1967 prohibits us from doing so.) the defendant might only have been trying to frighten.

But we can infer intention from the facts. We do not have to believe the defendant. Ideally we would want much more information. Perhaps there is evidence of a long-term hatred of the victim, a motive; perhaps there is a confession. We might infer that he intended because he said he intended in his confession. But he may now be saying his confession was false. The judge or jury will have to decide whether they are satisfied, beyond reasonable doubt, that the actus reus was intended.Anti money laundering regulation

With an objective mens rea we couldn’t care less about what the defendant was thinking. We are only concerned with the quality of the behaviour. We compare it with others’ standards was it dangerous, careless, etc.. Was driving at that speed, in those conditions, careless? Was swinging that sword, so close to people, dangerous?

Identify the words that involve a thought process, which are subjective. Contrast them with the words that involve making a judgement, which are objective.

‘planned’, ‘desired’, ‘aware’, ‘foresee’, ‘anticipate’, ‘willingly’ are all subjective words. They require a ‘mental operation’. They require the brain to be exercised. ‘dangerous’, ‘foolish’, ‘reckless’, ‘risky’, ‘careless’, ‘reasonable’, ‘unwisely’ are all objective words. They involve passing a judgement on some behaviour.

If an offence has a subjective mens rea then the judge and jury must examine what the defendant was ‘thinking.’ not what he or she should have been thinking, not what others might have thought in his or her circumstances, but what he or she was actually ‘thinking.’ if the offence has an objective mens rea then the judge and jury must focus on the quality of the behaviour.Anti money laundering regulation if it is a strict liability offence then the judge and jury should not look for a mens rea as it is irrelevant; only causation of the actus reus.