Actus Reus - Mens Reus - Strict liability Flashcards
What are the key differences between mens rea and actus reus in the context of criminal law?
How does the concept of concurrence play a role in establishing a crime?
What is the role of causation in Criminal law?
Mens Rea – it is the mental element of a
person’s intention to commit a crime (i.e.
guilty mind, criminal intent).
Actus Reus – it is the external element of a
person’s unlawful conduct or omission of
an act (i.e. guilty act, criminal act).
Concurrence – mens rea and actus reus
must occur simultaneously to constitute a
crime, except for crimes of strict liability
where only actus reus is enough to impute
guilt.
Causation – the actus reus must
proximately cause actual harm, except for
inchoate offense where the criminal attempt
is not complete but actual harm would be resulted upon completion.
Under what conditions can an omission lead to criminal liability?
Why is actus reus considered the most important element for establishing a crime?
-There must be a criminal act or omission
for the imposition of criminal liability to
the actor.
If the law imposes a duty to act, a failure to
do so will result in criminal liability (i.e.
criminal omission).
The most important element for a crime is
actus reus, without which no criminal
liability can be imposed because there will
not be concurrence and causation.
Only mens rea can never constitute a crime,
as a person cannot be held liable for just
thinking about committing a crime.
Describe the difference between direct intention and oblique intention.
What constitutes recklessness in the context of criminal law?
Knowingly? Recklessness? Criminal negligence?
Direct intention – the actor has a clear
foresight of the consequences of his
actions, and desires those consequences to
occur. It is his aim, purpose or intent to
achieve this consequence.
Oblique intention – it is the indirect intent
of the virtually certain consequence of the
defendant’s actions, and that the defendant
appreciates that such was the case.
Knowingly – the actor knows, or should
know, that the results of his conduct are
reasonably certain to occur.
Recklessness – the actor foresees that
particular consequences may occur and
proceeds with the given conduct, not caring
whether those consequences actually occur
or not.
Criminal negligence – the actor did not
actually foresee that the particular
consequences would flow from his actions,
but a reasonable person, in the same
circumstances, would have foreseen those
consequences.
Explain the difference between automatism and insanity as defences in criminal law.
Automatism – a state where the muscles
act without any control by the mind, or
with a lack of consciousness
Insanity – a deranged state of mind that
makes the defendant unable to understand
what he was doing
Who bears the burden of proof in a criminal trial, and what is the standard of proof required?
Discuss the concept of reversing the burden of proof with an example.
A person is considered innocent until
proven guilty.
The burden of proof is generally on the
prosecution.
The prosecution must prove all the
elements that constitute the crime for which
the defendant is prosecuted, as in
Woolminton v DPP (1935).
What is a strict liability crime, and is mens rea not required for conviction?
Contrast strict liability crimes with absolute liability crimes and give an example of each.
It does not require the proof of the mental
element of crime, i.e. mens rea.
The defendant is presumed to have the
mens rea for the offence.
It only requires voluntary act or omission
of an act to constitute actus reus for
conviction.
Strict liability crimes are primarily
statutory offences.
-Difference
Absolute Liability Crime
Many so called strict liability crimes in fact
require some form of mens rea.
The element of mens rea is often specified
in statute, such as ‘willfully’, ‘knowingly’,
‘recklessly’, ‘carelessly’.
Therefore, this mental state needs to be
proved even though it is a strict liability
offence.
However, for absolute liability crimes,
proof of mens rea is not required at all.
The prosecution just needs to prove the actus reus for conviction.
Absolute liability crimes are primarily
regulatory offences, also known as quasicriminal
offence.
In English criminal law, the distinction
between strict liability and absolute liability
is not always clear, and many absolute
liability crimes are simply referred to as
strict liability crimes.
Identify and explain several major disadvantage of strict liability.(5 + What 3 cases?)
What are the advantages of imposing strict liability for certain offenses?
Disadvantages of Strict Liability
Crimes of strict liability may lead to
controversial convictions as a person may
be liable even if he is not at fault or has
taken reasonable care.
It may sometimes be unjust and unfair to
the defendant as he may not have the
blameworthy state of mind or may not be
aware of the risk.
In Callow v Tillstone (1900), despite having
followed the food safety procedure, a
butcher was convicted of selling unfit meat
which was a strict liability crime at that
time.
In Environment Agency v Empress Car
(1998), the company unaware of the leak
caused by a hidden defect in a seal was
held liable for the pollution caused.
In R v G (2008), a 15-year-old boy was
found guilty of the offence of rape of a
child under 13 after raping a 12-year-old
girl though he had reasonable grounds to
believe that she was 15.
Advantages of Strict Liability
Despite its controversy, strict liability is
generally accepted as it brings a number of
practical benefits, such as the need to
ensure that the health and safety of the
public are properly protected.
Crimes of strict liability are easier to prove
because mens rea is not required, saving
the prosecution and courts a lot of time and
resources.
As defences to crimes of strict liability are
more difficult, it promotes compliance with
laws and regulations by making clear what
acts should not be committed or omitted
What are the solutions to strict liability?
Solutions to Problems of Strict Liability
For crimes that are statute-based, whether
the defendant is strictly liable often
depends on statutory interpretation.
Serious penalties militate against (prevent)
offence being of strict liability.
Whether it is a regulatory offence and the
severity of the penalty should be
considered when deciding whether mens
rea is required.
Some offences, in same context, may
require mens rea whilst others do not.
Potential for unfairness to luckless victims
weighs against strict liability.
Strict liability may be warranted for
offences of public interest.
In deciding whether presumption of mens
rea is rebutted, the court must consider the
requirement for mens rea in other respects
or other offences in the same sections,
severity of penalties and stigma of
conviction, and importance in public
interest.
The public interest factor can outweigh the
other factors.
Offence only imposes absolute liability if
none of its elements requires mens rea.
How do courts determine whether an offense requires mens rea according to Sweet v Parsley (1970)?
Discuss the significance of Gammon v A-G of Hong Kong (1985) in the context of strict liability offenses.
Sweet v Parsley (1970)
The court established the presumption that
criminal offences require mens rea for
conviction.
If the statue is reasonably capable of two
interpretations, the one that is most
favourable to the defendant must be
adopted.
If there is a lack of clear indication in the
Act as to whether the offence is an absolute
offence, it is necessary to go outside the
Act to find out the intention of Parliament
Gammon v A-G of Hong Kong (1985)
The court reaffirmed the presumption that
mens rea is required for criminal offences.
The presumption is particularly strong
where the offence is a true crime (i.e.
crimes that are not quasi-criminal
offences).
The presumption can be displaced if the
Act clearly, or by necessary implication,
indicates strict liability.
The presumption can also be displaced if
the issue is of social concern, such as
public health and safety.
The presumption stands unless strict
liability can better achieve the objective of
the statute.
If one subsection of the Act creates an
offence of strict liability, this does not mean
the other section will follow.
The presumption can be displaced if the
offence is a regulatory offence or carries a
small penalty.
What are the essential elements of actus reus?
Explain the concept of involuntary act and its relevance to criminal liability.
Elements of Actus Reus
Conduct (always required)
Any circumstances necessary to render that
conduct wrongful (if any are required)
Result (if any is required)
Involuntary Act
It is conduct which is done by the muscles
without any control by the mind.
It tends to incur no criminal liability.
It can be resulted from diminished
responsibility, insanity or automatism
What is automatism, and how can it serve as a defence in criminal proceedings?
(What cases?)
It refers to conduct performed by someone who has not control over their body.
-commonly defined as spasms, reflexes,
convulsions or acts committed in a state of
unconsciousness, such as sleepwalking in R
v Burgess (1991).
But it can also be a dissociative state due to
external factor such as post-traumatic stress
disorder from being raped, as in R v T
(1990).
It is divided into sane automatism and
insane automatism, both of which can be
used as a defence to criminal liability.
How can one identify the actus reus of a crime?
Find the definition of the crime.
Distil the actus reus from that definition.
Identify the act of the defendant which you
are to rely on in establishing that actus reus.
For example, under S67(1) of the Sexual
Offences Act 2003, the offence of
voyeurism is committed if for the purpose
of obtaining sexual gratification, a person
observes another person doing a private act.
In this case, the act of observing is the
actus reus of the offence of voyeurism.
