Actus Reus and Mens Rea

Question 1

What is an ‘absolute bar’?

Answer 1

A refusal of consideration of the merits of an action in the European Court of Justice.

Question 2

What does ‘actus non facit reum nisi mens sit rea’ mean?

Answer 2

Conduct does not make the man guilty unless his mind is also guilty.

Question 3

What are the two essential components of a crime?

Answer 3

Actus reus (the physical act) and mens rea (the mental element).

Question 4

What are strict liability crimes?

Answer 4

Crimes that do not require mens rea

Question 5

Can just thinking about committing a crime warrant criminal liability?

Answer 5

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.

Question 6

What are conduct crimes?

Answer 6

Crimes which forbid a certain type of behaviour e.g. the possession of drugs.

Question 7

What are result crimes?

Answer 7

Result crimes are concerned with the aftermath of specific actions e.g. a person being killed.

Question 8

How can actus reus be established?

Answer 8

By the prosecution proving conduct and the consequences of that conduct.

Question 9

What is causation?

Answer 9

The causal link between the accused’s actions and the result. e.g a stab wound that killed the victim.

Question 10

What are the three types of actus reus?

Answer 10

• an overt (positive) act
• an omission
• a state of affairs

Question 11

What is an overt act?

Answer 11

The physical or external manifestation of an act. i.e. actually doing something.

Question 12

What is an omission?

Answer 12

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.

Question 13

Where can the obligations to act be found?

Answer 13

In common law and statute.

Question 14

What happens if the accused creates a dangerous situation and did not remedy it?

Answer 14

The actus reus of a crime can still be satisfied.

Question 15

Why must courts be wary when stating a certain omission satisfied the actus reus for a crime?

Answer 15

Because to do so would place a positive obligation on other people in a similar situation.

Question 16

what is a state of affairs?

Answer 16

A crime committed just for the state the accused was in e.g. drunk driving

Question 17

What does mens rea help to distinguish between?

Answer 17

intentional and accidental conduct.

Question 18

What is dole?

Answer 18

An historical concept from which mens rea derives, it means to have evil intent

Question 19

How is mens rea assessed in Scotland?

Answer 19

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.

Question 20

How does mens rea differ from motive?

Answer 20

Motive concerns why someone did something and is largely irrelevant in Scots law except for evidential purposes.

Question 21

What are the two categories of mens rea?

Answer 21

• Intention

- Recklessness

Question 22

Describe the intention category of mens rea.

Answer 22

The accused decided to act a certain way. Unless the accused has confessed their state of mind, intention has to be proved.

Question 23

Describe the recklessness category of mens rea.

Answer 23

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).

Question 24

Does mens rea and actus reus have to occur at the same time?

Answer 24

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).

Question 25

What is the doctrine of transferred intent?

Answer 25

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.

Question 26

When does the doctrine of transferred intent not apply?

Answer 26

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.