Actus Reus And Mens Rea Flashcards
In most cases, who has the legal burden of proof?
Prosecution needs to prove all the elements of the offence, including disproving the defence.
Who has the evidential burden of proof?
Prosecution needs to provide sufficient evidence for each element of the offence.
Where the prosecution has the burden, what standard of proof is required?
Beyond reasonable doubt
Factual causation
But for test - but for the defendants conduct, would the consequence have occurred?
If the result would have occurred regardless of the defendants conduct, then factual causation is not established.
Legal causation
Defendants conduct must be a substantial and operating cause of the consequence.
The consequence must be attributable to a culpable act or omission.
Culpable act must be a more than minimal cause of consequence.
Culpable act need not be the sole cause.
The accused must take their victim as they find them.
What events will the chain of causation be broken by an intervening act?
Unforeseeable escape.
Voluntary act by a third party.
Negligent medical treatment that was ‘so independent of the defendants act’ and ‘so potent in causing death’ that the contribution made by the defendant was rendered insignificant.
Events that are not reasonably foreseeable.
What is the difference between direct and indirect intention?
Direct - defendant seeks to achieve the consequence of their act (their aim/purpose).
Indirect - the consequences that the defendant achieves by committing the actus reus are a by-product, so not the principle purpose, of what the defendant was aiming to do.
What 2 issues does the jury consider for indirect intent?
(A) was the consequence virtually certain to occur from the defendants act or omission?
(B) did the defendant appreciate the consequences were virtually certain to occur?
What are the 2 elements to consider when dealing with recklessness?
(A) the risk must be an unjustified or unreasonable one to take.
(B) defendant must be aware of the risk and go on to take it.
How is recklessness tested?
The prosecution must establish that the defendant had a particular state of mind when they took that risk.
How is negligence tested?
Defendant is judged on an objective standard that can be satisfied even if the defendant is unaware of the risk provided it is an obvious one.
Defendant failed to foresee a risk that a reasonable person would have foreseen.
Defendant foresaw the risk but did not take steps to avoid it.
Defendant foresaw the risk but took inadequate steps to avoid it.
What is the difference between recklessness and negligence?
Negligence - refers to the failure to exercise reasonable care, not taking precautions that a reasonable person would.
Recklessness - involves knowingly disregarding or ignoring potential dangers or the safety of others.
Strict liability offences
Usually created in statute and regulatory nature.
No need to prove mens rea or negligence.
Justification - public policy - to protect the public and make conviction easier.
E.g. driving a vehicle in excess of the speed limit on a road.
Doctrine of transferred malice
Defendant has the malice (intention/recklessness) to commit a crime against 1 person, this malice is transferred to the unintended victim and combines with the actus reus to complete the offence.
Only applies where the actus reus committed is the same type of crime as the defendant originally had in mind. If the intended and actual offences are different, the malice cannot be transferred. - e.g. intends to hurt someone, but actually breaks a window instead.
Offences of basic intent
Crimes which can be committed either intentionally or recklessly.
E.g. criminal damage
Offences of specific intent
Crimes that can only be committed intentionally.
Murder - mens rea is an intention to kill or cause GBH.
Theft - mens rea requires an intention to permanently deprive.
Offences of ulterior intent
Mens rea goes beyond the actus reus of that offence so the prosecution have to establish an ‘extra element’ of mens rea against the defendant before they can secure a conviction.
Burglary - mens rea is knowledge/recklessness as to being a trespasser.
Ulterior intent - steal, inflict GBH or cause damage inside the building.
