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I'd argue that mens rea is intent, not motivation, and the two are separate - e.g. the intent to burgle, not one's reason's for having that intent.

But, given that intent is a subjectively experienced phenomenon, evidence of motivation is often adduced as evidence from which intent can be inferred. So the line is pretty blurry.

Bu yes I wasn't clear. I mean it doesn't become a whole new and more harshly punished offence because of that mens rea.

It's been a long time since I studied law, but I seem to remember gradations between negligence, recklessness and deliberate intent for some offences. Burglary requires the intent to steal, damage, or hurt - otherwise it's just trespass. Possessing drugs with the intent to distribute is more serious that mere possession.

The only other offence I know of where it arguably does is when manslaughter becomes murder because you have to prove intent. That's intent rather than motivation though. IANAL though.

So if you punch someone a man in street then it's assault or ABH or whatever - the charge will reflect the severity of the act but not my motivation for committing it, except in one case.

If I jerk my elbow sharply upwards and backwards, hitting the nose of someone stood behind me, I am guilty of battery if I intended it or was reckless to the risk thereof. If it was an involuntary reaction to being bitten by a wasp, I most likely am not.

If you punch a person in the street because he is wearing a green suit, you don't like his hair, because she is a woman, because he is gay or because he is disabled then it is still assault and sentencing will reflect the severity of the assault.

If, however, the victim is of the opinion that you did it because you didn't like their race or their religion then you will be prosecuted for a distinct and more serious charge of racially aggravated assault. This is the only instance I know of where the opinion of the victim as to the perpetrator's motives is even taken into account, never mind enshrined in law, and the only case where it results in a different charge being brought.

The actual two mens rea limbs for a hate crime are a) demonstrating hostility to the victim based on their membership of a race or religion around the time of the criminal act, or b) being motivated by hostility.

B) is basically motivation. That's fairly clear. Prove they did it because they meant to be hostile, and it's a hate crime.

A) is specifically defined by the Law Commission as being objective, and completely independent of the victim's perception. It is a question of fact for the court.

Here's the Law Commission's paper on hate crime laws from May
http://lawcommission.justice.gov.uk/docs/lc348_hate_crime.pdf

There are a quite a few distinct racially-aggravated offences that have been added to the statute books, which result in a person's religious delusions being enshrined in law as more special, fragile and worthy of legal protection than someone's sexuality, dis/ability, or (leaving aside the race aspect of the statutes) physical appearance. And quite frankly they shouldn't be.

I do agree with you that if we're going to have the concept of hate crime, it shouldn't be limited to race or religion.

Edit to add - that said, hostility based on gender, orientation, disability etc is taken into account in sentencing for any crime.