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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

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