Actus Reus and Mens Rea Flashcards
What is an ‘absolute bar’?
A refusal of consideration of the merits of an action in the European Court of Justice.
What does ‘actus non facit reum nisi mens sit rea’ mean?
Conduct does not make the man guilty unless his mind is also guilty.
What are the two essential components of a crime?
Actus reus (the physical act) and mens rea (the mental element).
What are strict liability crimes?
Crimes that do not require mens rea
Can just thinking about committing a crime warrant criminal liability?
No in Scotland a thought crime is insufficient. For criminal liability the individual must have made significant progress with their preparations to commit the crime.
What are conduct crimes?
Crimes which forbid a certain type of behaviour e.g. the possession of drugs.
What are result crimes?
Result crimes are concerned with the aftermath of specific actions e.g. a person being killed.
How can actus reus be established?
By the prosecution proving conduct and the consequences of that conduct.
What is causation?
The causal link between the accused’s actions and the result. e.g a stab wound that killed the victim.
What are the three types of actus reus?
- an overt (positive) act
- an omission
- a state of affairs
What is an overt act?
The physical or external manifestation of an act. i.e. actually doing something.
What is an omission?
a failure to act when there is a legal obligation to do so. It is not a sufficient for the defence if the accused did not know they had a duty to act.
Where can the obligations to act be found?
In common law and statute.
What happens if the accused creates a dangerous situation and did not remedy it?
The actus reus of a crime can still be satisfied.
Why must courts be wary when stating a certain omission satisfied the actus reus for a crime?
Because to do so would place a positive obligation on other people in a similar situation.
what is a state of affairs?
A crime committed just for the state the accused was in e.g. drunk driving
What does mens rea help to distinguish between?
intentional and accidental conduct.
What is dole?
An historical concept from which mens rea derives, it means to have evil intent
How is mens rea assessed in Scotland?
Either subjectively or objectively. Subjectively is from the point of view of the accused and objectively is what the accused should have foreseen. In Scotland, it is assessed objectively for consistency and convenience.
How does mens rea differ from motive?
Motive concerns why someone did something and is largely irrelevant in Scots law except for evidential purposes.
What are the two categories of mens rea?
- Intention
- Recklessness
Describe the intention category of mens rea.
The accused decided to act a certain way. Unless the accused has confessed their state of mind, intention has to be proved.
Describe the recklessness category of mens rea.
RHW v HM Advocate found that criminal recklessness means ‘a total indifference and disregard for the safety of the public’. Will be obsessed objectively and should not be confused with negligence (a term reserved for delict).
Does mens rea and actus reus have to occur at the same time?
Mens rea can occur after the actus reus or vice versa. They do not have to coincide. e.g. Thabo-Meli v R (body thrown over cliff, died from exposure).
What is the doctrine of transferred intent?
When the accused intended to kill on person but kills another, this doctrine applies. The law treats the accused as though they had hurt the intended victim.
When does the doctrine of transferred intent not apply?
e.g. doctrine does not apply to wilful fire raising (Byrne v HMA No.2) because it would punish the accused for unintended consequences in a crime that requires intent.
