¹ See, e.g., Coke, Third Institute (1641) 6, 107; Fowler v. Padget 7 Term Rep. 514 (Lord Kenyon). Cf. Bracton, De Legibus et Consuetudinibus Angliae, 101b; also C.S. Kenny, Outlines of Criminal Law, 2nd ed., (Cambridge University Press, 1904) 39: “no external conduct, however serious or even fatal its consequences may have been, is ever punished unless it is produced by some form of mens rea.”

² [1970] A.C. 132, 148 (Lord Reid); see also at 153 (Lord Morris) and 162–3 (Lord Diplock). Cf. B v. DPP [2000] 2 A.C. 428.

³ Notably in under-age sexual offences: now the Sexual Offences Act 2003, ss. 5–8.

⁴ Nothing turns here on the vexed but semantic question whether negligence is a form of “mens rea” or mental state, in as much as it may be a fault element without involving any particular state of mind. For convenience of expression, we assume that it is.

⁵ This holds especially for purely cognitive forms of mens rea such as intention or knowledge. On the other hand, the presence of a justification may block findings of certain partially evaluative mens rea elements, such as recklessness or dishonesty.

⁶ Pace the Divisional Court in D.P.P. v. H [1997] 1 W.L.R. 1406, which ruled that the insanity defence has no application to strict liability offences, on the basis that the defence operates to negate D's mens rea. But a successful plea of insanity is compatible with the presence of mens rea, at least where D's condition is such that he lacked knowledge that his act was wrong: M'Naghten (1843) 10 C. & F. 200, 8 E.R. 718.

⁷ [1995] 2 A.C. 355 (HL); [1994] Q.B. 81 (CA). Cf. Hinklin (1868) L.R. 3 Q.B. 360, 370–2; Yip Chiu-Cheung [1995] 1 A.C. 111.

⁸ It appears from the trial evidence that the defendant was slipped three different kinds of drug, which were likely to affect judgment, consciousness, and memory.

⁹ Pace Lord Mustill in Kingston itself, at 365: “In respect of some offences the mind of the defendant, and still less his moral judgment, may not be engaged at all. In others, although a mental activity must be the motive power for the prohibited act or omission the activity may be of such a kind or degree that society at large would not criticise the defendant's conduct severely or even criticise it at all. Such cases are not uncommon. Yet to assume that contemporary moral judgments affect the criminality of the act, as distinct from the punishment appropriate to the crime once proved, is to be misled by the expression ‘mens rea’, the ambiguity of which has been the subject of complaint for more than a century. Certainly, the ‘mens’ of the defendant must usually be involved in the offence; but the epithet ‘rea’ refers to the criminality of the act in which the mind is engaged, not to its moral character.” We can accept Lord Mustill's analysis that the absence of blame should not entail the absence of mens rea. Read as an assertion that the absence of blame should not entail the absence of a conviction, however, we should demur. For insightful discussion, see G. Sullivan, “Making Excuses” in A.P. Simester and A.T.H. Smith (eds.), Harm and Culpability (Oxford 1996), 131.

¹⁰ Kingston, at 375–7.

¹¹ (1983) [1987] 3 All E.R.411 (CA).

¹² [1988] 1 A.C. 130 (PC).

¹³ For criticism of that approach, see Simester, A.P., “Mistakes in Defence” (1992) 12 O.J.L.S. 295CrossRefGoogle Scholar.

¹⁴ Similarly, in the context of medical necessity, see the argument by A. Ashworth, “Criminal Liability in a Medical Context: the Treatment of Good Intentions” in A.P. Simester and A.T.H. Smith (eds.), Harm and Culpability, 173.

¹⁵ Above, text at n. 2.

¹⁶ [1899] 1 Q.B. 7, 14. (Unfortunately, as we noted earlier, it is a rule plagued by exceptions.)

¹⁷ Contrary to s. 1 of the Road Traffic Act 1988.

¹⁸ See further A.P. Simester, J.R. Spencer, G.R. Sullivan, and G.J. Virgo Simester and Sullivan's Criminal Law: Theory and Doctrine, 4th ed. (Oxford, 2010) § 6.5 (hereafter Simester and Sullivan).

¹⁹ Cf. Simester and Sullivan ch. 1.

²⁰ [1989] A.C. 28.

²¹ Criminal Law: The General Part, 2nd ed. (London 1961), p. 22.

²² Especially in ulterior intent crimes. See J. Horder, “Crimes of Ulterior Intent” in A.P. Simester and A.T.H. Smith (eds.), Harm and Culpability, 153.

²³ Cf. G. Lamond, “Coercion, Threats, and the Puzzle of Blackmail” in Simester and Smith, ibid., 215.

²⁴ Section 5 creates an offence of preparation of terrorist acts. According to subsection (1), “a person commits an offence if, with the intention of (a) committing acts of terrorism, or (b) assisting another to commit such acts, he engages in any conduct in preparation for giving effect to his intention.”

²⁵ Cf. A. Ashworth, Principles of Criminal Law, 6th ed. (Oxford 2009) § 3.6(s); Simester and Sullivan § 2.4 (“fair labelling”).

²⁶ See, e.g., Simester and Sullivan § 2.3 and citations there.

²⁷ [2005] UKHL 63, [2006] 1 A.C. 459, [33].

²⁸ It is this second, constitutional principle that is especially worrying about the decision in C [2004] EWCA Crim 392, [2004] 1 W.L.R. 2098, where C appealed his conviction in 2002 of raping his wife in 1970. Relying on the House of Lords' decision in R. v. R [1992] 1 A.C. 599 (below in the text), the Court of Appeal simply pronounced (at [22]) that “the stark fact is that R was convicted. … The decision [by their Lordships] applied to events that had already taken place, as well as those in the future.”

²⁹ Kokkinakas v. Greece (1993) 17 E.H.R.R. 397, 423. Cf. G v. Federal Republic of Germany 60 D.R. 252, 262 (1989); Misra and Srivastava [2004] EWCA Crim 2375, [29]–[34].

³⁰ Cf. John Gardner's introduction to H.L.A. Hart's Punishment and Responsibility 2nd ed.(Oxford 2008) xxxvi: “the law must be such that those subject to it can reliably be guided by it, either to avoid violating it or to build the legal consequences of having violated it into their thinking about what future actions may be open to them.” (Emphasis added.)

³¹ “Interpreting Criminal Statutes: A Crisis of Legality?” (1991) 107 L.Q.R. 419Google Scholar, 443.

³² Knuller v. D.P.P. [1973] A.C. 435, 463.

³³ [1992] 1 A.C. 599.

³⁴ Which is effectively what happened in C (above, n. 28).

³⁵ Cf. Simester and Sullivan § 2.3.

³⁶ See, e.g., H.L.A. Hart, “Punishment and the Elimination of Responsibility” in Punishment and Responsibility (Oxford 1968) 158, at pp. 181–2.

³⁷ Subject, of course, to the possibility of defences: cf. H.L.A. Hart, “Legal Responsibility and Excuses” in Punishment and Responsibility, ibid.

³⁸ A point made by J. Gardner, “Wrongs and Faults” in A.P. Simester (ed.), Appraising Strict Liability (Oxford 2005) 51, at p. 71.

³⁹ Ibid., p. 70.

⁴⁰ Ibid., pp. 69–70.

⁴¹ Although his editor was persuaded at the time.

⁴² This claim assumes that an adequately formulated (gross) negligence standard can take account of intellectual limitations of the defendant. For related discussion, see Simester and Sullivan § 5.5(ii).

⁴³ Adomako [1994] UKHL 6, [1995] 1 A.C. 171.

⁴⁴ Pittwood (1902) 19 T.L.R. 37.

⁴⁵ For a fuller outline of the nature of criminalization, see A.P. Simester and A. von Hirsch, Crimes, Harms, and Wrongs: On the Principles of Criminalisation (Oxford 2011) ch. 1.

⁴⁶ Cf. Sexual Offences Act 2003, ss. 5–8 (offences against children under 13).

⁴⁷ Criminal Damage Act 1971, s. 1.

⁴⁸ The classic study is J. Feinberg, Harm to Others (Oxford 1984); see also Simester and von Hirsch (note 45 above), ch. 3.

⁴⁹ For an argument along these lines in the context of complicity liability, see Simester, A.P., “The Mental Element in Complicity” (2006) 122 L.Q.R. 578, 591–2Google Scholar.

⁵⁰ Finkelstein, C., “Responsibility for Unintended Consequences” (2005) 2 Ohio St. J. Crim. L. 579Google Scholar; Moore, M., “Choice, Character, and Excuse” (1990) 7 Social Philosophy and Policy 28CrossRefGoogle Scholar; Hall, J., “Negligent Behaviour Should be Excluded from Criminal Liability” (1963) 63 Col. L.R. 632CrossRefGoogle Scholar; J.W.C. Turner, “The Mental Element of Crimes at Common Law” in L. Radzinowicz and J.W.C. Turner (eds.) The Modern Approach to Criminal Law (London 1948) 195.

⁵¹ See, e.g., A.P. Simester, Can Negligence be Culpable?” in J. Horder (ed.), Oxford Essays in Jurisprudence (4th Series, Oxford 2000) 85.

⁵² We are very grateful indeed for the penetrating comments and suggestions of Bob Sullivan on an earlier draft. Research for the essay was supported by a Singapore MoE Tier One Research Grant (R241000045112).