Skip to main content

TO MENS REA OR NOT TO MENS REA

 Does excluding mens rea in the Statement of Offence make a charge defective?

Rule of Law

When a person is accused of an offence, his constitutional right to a fair hearing requires that he should be informed of the charge with sufficient detail to answer it[1]. In order for an accused person to be informed of the charge, first the charge is drawn up and secondly it is stated to him.

Drawing the Charge

A charge or information is drawn with sufficient detail to answer it if it contains:

  1.  a statement of the specific offence or offences with which the accused person is charged; and
  2. particulars necessary for giving reasonable information as to the nature of the offence charged[2].

The framing of a charge or information should follow the rules laid down in Section s137(a)(ii)the Criminal Procedure Code which provides:

137(a)(ii) the statement of offence shall describe the offence shortly in ordinary language, avoiding as far as possible the use of technical terms, and without necessarily stating all the essential elements of the offence, and if the offence charged is one created by enactment shall contain a reference to the section of the enactment creating the offence; [emphasis mine]

Criminal law classically describes offences as being composed of two elements: the mens rea and the actus reus. The mens rea is the guilty mind and the actus reus is the guilty act[3].

Stating the Charge

The substance of the charge is stated to the accused person in court and they are required to plead to this charge[4]. In stating the substance of the charge, the first step requires that all the essential ingredients of the offence should be explained to the accused person in his language or in a language he understands[5]. After the accused’s response is recorded and the accused person has admitted to the offence, the prosecution will then state the facts.

Analysis

A charge is complete when it contains both the statement of offence that discloses an offence in law and the essential elements of the offence. The test for a defective charge sheet is a substantive one, not a formalistic one[6]. It will not matter whether the mens rea is captured in the statement of offence or the particulars, as long as it is captured.

When framing the charge, the law provides for two separate parts. The first part is only the statement of offence which is to be short and reference the specific law creating the offence. The second part gives particulars of the offence which would include the mens rea and the actus reus.

Before an accused person, can plead to an offence the substance of the charge must be stated to him. The substance of the charge includes both the statement of offence and the particulars of the offence. Only then would the accused person have been informed of the charge with sufficient detail to answer it.

Conclusion

The lack of mens rea in a statement of offence does not make a charge defective. The charge will have been properly drafted as long as:

  1. the full charge comprising both the statement of offence and particulars of the offence contain both the actus reus and mens rea
  2. both the statement of offence and particulars of the offence are stated to the accused person before he is to take a plea.

[1] Article 50(2)(b) of the Constitution of Kenya 2010

[2] S 134 Criminal Procedure Code

[3] MENS REA, ACTUS REUS, AND THE ROLE OF THE STATE William Schabas

[4] S 207 ibid

[5] Adan v Republic [1973] EA 445

[6] B N D v Republic [2017] eKLR Ngugi J

Labels:

Comments

Post a Comment

Popular posts from this blog

Differences between a Business Name (Sole-Proprietorship / Partnership) and a Limited Liability Company

While consulting for our online company registration service, Incorporator I find myself answering the question "What is the difference between a sole-proprietorship and a company?" Anybody who is considering starting a business must consider what type of business structure is needed for his or her particular situation. In Kenya there are three types of structures that one can use to start their business. 1. An LLC, or Limited Liability Company 2. A sole proprietorship 3. A Partnership A Sole-proprietorship and a Partnership are registered through the same manner (Form BN/2) with the exception that a partnership has more than one owner and although not necessary, entrepreneurs are advised to register a partnership deed as well. In this article all references to sole-proprietorship also include partnership. Understanding the advantages and disadvantages of each structure is important when deciding which one you want to use for your company. ...
15 comments
Read more

Cyber Cafe with an EDGE

Followed up from Laying the Groundwork for a rural cyber I've finally got around to writing this. Thanks for you all who patiently waited. Although I approached the project as an "internet consultant", I soon realised I would need to implement the whole spectrum of tasks required to get the cyber running. I spent almost a week laying the structured cabling, installing the software, and configuring the network. Most of the work I was doing for the first time (e.g. drilling holes in concrete to fix the trunking screws) and most of it was hard, but all of it was enjoyable. I needed to prove the project was implementable with minimal human resources (if it was going to work elsewhere). With an eye on both troubleshooting by the owner and future projects I prepared detailed How To manuals for most of the tasks. So the day finally arrived, November 17th I connected all the PCs to the internet. The results were incredible, the speeds were nearly as good as my 256K broadband conn...
36 comments
Read more

Selling stuff online to Kenyans

You might not know this but my love of entrepreneurship is fuelled majorly by my love of computer programming. My first exposure to computers was in 1988 when I played shuffleboard on an Atari. Having been raised in the boondocks I was utterly spellbound with the concept of a video game. In 'shags' we hardly ever got toys from the shops; instead we would create our own toys using locally available material. For toy cars we twisted and shaped wire coat hangers and cut out rubber tires from old (and sometimes mom's new) bathroom slippers. For planes, we stuck a stalk of grass through a dried maize leaf and made our 'propellers' rotate by holding them out in front and running into the wind (incidentally this was my all-time favourite). For marbles we hunted for used and discarded bottle-tops (beer bottle-tops were coveted). In fact we had so many toys that our game time never felt inadequate. That was until I discovered video games. Hard as I thought I didn't see...
21 comments
Read more