MENS REA (The Mental Element of an Offence)

What Does Mens Rea Mean?

Mens rea refers to the mental element required to be proved by the definition of the crime. By the definition of the crime, I am referring to the statutory provision that describes what the offence is. If the prosecution cannot prove this element, then their case fails. Also, mens rea differs from crime to crime and is contained in the definition of the crime.

The words that are commonly used to represent mens rea in the statutory definition of a crime include:

  1. Intention.
  2. Recklessness
  3. Knowledge
  4. Negligence
  5. Rashness
  6. Voluntariness
  7. Dishonesty
  8. Fraudulent 

1. Intention: In order to determine intention, it is viewed from three perspectives:

  • A consequence is intended if it is the aim and objective of the accused
  • A consequence is intended if it is the aim of the accused and is foreseen as a virtual, practical or moral certainty.
  • A consequence is intended when it is foreseen as as a probable result of the action of the accused.

In the case of Hyam vs DPP (1975) AC, the accused poured petrol into the letter box of her lover’s mistress’ house and then ignited it, knowing fully well that there were persons sleeping inside. This resulted in the death of the persons inside.

In court, she contended that she had no intention of causing death but had foreseen grievous bodily harm as a highly probable result of her action. The court rejected her argument for manslaughter and convicted her for murder.

Thus, in determining intent, there has to be proof that the consequence was a probable result of the act and was foreseen by the accused.

In the case of Ubani vs The State (2003) vol 18 NWLR pt 851, the accused and appellant, armed with machetes and guns, beat the  deceased till he fell and discharged excreta. As a consequence of this, he died.

On appeal the Supreme Court held that death or grievous bodily harm done to the deceased was, to the knowledge of the accused, a probable consequence of his action. Thus, the accused was held guilty.

See also: Idowu vs State (2000) vol 12 NWLR, Idiok vs The State (2006) vol 12 NWLR pt 913.

2. Recklessness: Recklessness occurs in a situation in which the accused knew that there was a likelihood of his action resulting into a crime but he still went ahead with the action. For example,by S. 59 of the Criminal Code if a statement, rumour, or report likely to cause public alarm is published, and there is a likelihood that such information is false, and it turns out to be false, the publisher would be penalised.

3. Knowledge: This is a state of mind in relation to the circumstances in which the act or omission occurred. In this kind of situation the words ‘knowingly’ or ‘consciously’ is used to prove a guilty mind. Knowledge can constructive, actual or willful blindness.

For example, S.319A of the Penal Code provides that whoever knowingly possesses stolen property or property reasonably suspected to be stolen and does not give a satisfactory account as to how it came into his possession shall be punished with six months imprisonment, fine or both.

4. Rashness: This is a type of mens rea that is related to gross negligence or recklessness and relates to acts done without premeditation.

5. Negligence: This is a situation in which the failure to perform a duty imposed on the accused results into a crime. For example, according to the provision of S. 138 of the Criminal Code,if a person who is in charge of confining a prisoner, negligently allows him to escape, he is guilty of a misdemeanor punishable with two years.

6. Voluntarily: According to the provision of S. 27 of the Penal Code, an effect is voluntarily caused if the perpetrator intended that his action would cause it, or if at the time of doing such act, there is a reasonable likelihood of such act being caused.

For example, if A sets fire to an inhabited house for robbery and causes the death of the occupants, he would be said to have voluntarily caused their deaths. This is regardless of the fact that he didn’t want to cause their death; if he knew it was likely to cause their deaths, it would be regarded as voluntary.

7. Dishonestly: This is used in a situation in which the an act is not done in good faith. Thus, S. 286(1) of the Penal Code provides that whoever dishonestly takes a movable property out of the owner’s possession without his consent, is liable for committing theft.

8. Fraudulently: This can be used interchangeable with dishonestly. For example in S.320 Penal Code, it is stated that anyone who fraudulently or dishonestly induces a person to part with his property is committing the offence of cheating.


  1. Lecture delivered by Dr Mrs. M.A. Abdulraheem Mustapha, Faculty of Law, University of Ilorin.
  2. Okonkwo and Naish: Criminal Law in Nigeria
  3. The Nigerian criminal Code
  4. The Nigerian Penal Code
  5. Clarkson and Keating: Criminal Law

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