Beyond the present-fault paradigm: expanding mens rea definitions in the general part

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Abstract

This article explores the use of mens rea terms in the criminal general part. We contend the current law fails properly to conceptualise mens rea for a large category of offences, namely bespoke/substantive inchoate offences, attempt, conspiracy, assisting and encouraging, and the general offence of complicity. These offences involve two conduct events: one in the present and one in future. However, current mens rea terms are defined as if applied to the more conventional category of criminal offence which only involves present conduct—a practice which we term the ‘present-fault paradigm’. We explore the limits of current mens rea terms, defined for present-conduct targets (circumstances and results), when applied to future-conduct ulterior targets within inchoate and complicity offences. We contend that current mens rea definitions and analysis within the general part are inappropriate for targeting elements related to future conduct/offending, and we suggest more appropriate bases for conceptualising such mens rea.
Original languageEnglish
Article numbergqab033
JournalOxford Journal of Legal Studies
Early online date30 Oct 2021
DOIs
Publication statusE-pub ahead of print - 30 Oct 2021

Keywords

  • Mens Rea
  • General Part
  • Ulterior Mens Rea
  • complicity
  • Conspiracy.

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