Definition of the offence: Actus Reus & Mens Rea Flashcards
What is the burden and standard of proof in criminal law?
The legal burden of proof is on the PROSECUTION to prove all elements of the offence
The evidential burden of proof is on the PROSECUTION to provide sufficient evidence for each element of the offence
The standard of proof is BEYOND REASONABLE DOUBT
(Nb. are instances where defendant has legal burden to prove their defence, eg. diminished responsibility - standard is only on balance of probabilities)
Who has the legal & evidential burden of proof in criminal law?
The prosecution - must prove all elements of the offence & provide sufficient evidence for each element of the offence
(Nb. Certain instances where defendant has burden of proof for their defence - but only on balance of probabilities)
What is the standard of proof where the prosecution has the burden?
Beyond reasonable doubt
V high standard - convict only if sure of defendant’s guilt
What might the actus reus of an offence consist of?
An ACT (or failure to act) by the defendant (‘conduct’ crimes)
Certain CONSEQUENCES flowing from the defendant’s conduct (‘result’ crimes)
The existence of certain CIRCUMSTANCES at the time of the defendant’s conduct (‘circumstances / state of affairs’ crimes)
Is there liability for omissions?
(ie. can you be liable for a crime where you don’t act)
General rule: No liability for omissions
Exception: Where defendant has legal duty to act + breaches that duty + that breach causes the offence to occur + MR
Legal duty to act will arise where:
- STATUTORY duty to act
- CONTRACTUAL duty to act
- SPECIAL RELATIONSHIP between victim & defendant
- Duty based on the VOLUNTARY ASSUMPTION OF CARE
- Duty arising because defendant, having CREATED & BECOME AWARE of a dangerous situation, fails to take reasonable steps to avert it
What is the exception to the general rule that there is no liability for omissions?
Where the defendant has a legal duty to act + breaches that duty + the breach causes the offence to occur + requisite MR
How might a positive duty to act arise?
i. Statutory duty to act (eg. duty to report attempts to conceal proceeds of crime)
ii. Contractual duty to act
iii. Special relationship between victim & defendant
(eg. parental duty of care - parent will be liable if fail to feed child)
iv. Voluntary assumption of duty to care (must do enough to assume duty)
v. Defendant creates dangerous situation, is aware, fails to take reasonable steps to avert it
(eg. park car on hill w/o handbrake, realise its not on but go off anyway, car rolls down hill onto person - will be liable)
What must be proved as part of the actus reus for result crime?
Causation - factual & legal
What is the test for factual causation?
‘But for’ test
‘But for the defendant’s act, would the result have happened?’
If yes: no causation, no criminal liability
If no: factual causation - if legal causation also established, will be criminally liable
What is the threshold for legal causation?
The defendant must be the operating & substantial cause of the attack
Does not have to be the only cause but must be the substantial (ie. more than minimal) cause
(Consequence must be caused by the defendant’s culpable act)
+ Chain of causation will not be broken
What will break the chain of causation (novus actus interveniens)?
Intervention by a third party if
- free, informed, deliberate act OR
- not reasonably foreseeable
Fright & flight by victim if not reasonably foreseeable (‘daft escapes’)
Unforeseeable circumstances
A voluntary, informed decision of the victim - except if response to extreme circumstances
Medical negligence - only if the negligent treatment is so independent of the defendant’s acts & in itself so potent in causing death that the defendant’s acts can be seen as being insignificant
What will not break the chain of causation?
Medical negligence (usually)
Reasonably foreseeable escapes
Victim refusing medical treatment
Something special about the victim - ie. thin skull rule (must take victim as find them)
Will the intervention by a third party break the chain of causation?
Only if:
It is a free, informed, deliberate act
or
Not reasonably foreseeable
Will medical negligence break the chain of causation?
Usually not
Will only be broken if the negligent treatment is so independent of the accused’s acts & in itself so potent in causing death that can regard the contribution of the accused’s acts as insignificant
(ie. only break the chain of causation if it is ‘so overwhelming’ that the original injury becomes part of the background history)
Will the victim’s religious beliefs break the chain of causation?
No - ‘thin skull’ rule: must take victim as find them
Will an escape / fright & flight action of the victim break the chain of causation?
Not if the victim’s action is reasonably foreseeable
Will only break chain if it is not reasonably foreseeable (‘daft escapes’)
Will the victim refusing medical treatment break the chain of causation?
No
Will a voluntary, informed decision of the victim (eg. defendant gives victim syringe of heroin, victim injects self & dies) break the chain of causation?
Yes (voluntary informed decision of victim to inject himself)
UNLESS in response to extreme circumstances
(eg. W threw sulphuric acid over ex, who was paralysed & in pain. Voluntary euthanasia - chain not broken)
Mens Rea: what is the meaning of intention?
‘Aim or purpose’
ie. Was the result of the defendant’s action the defendant’s aim or purpose?
What is the difference between direct intent & indirect/oblique intent?
Direct intent = D’s aim or purpose was what the result of the action was
Indirect/oblique intent = relied on where defendant’s purpose was not to produce the AR of the crime with which they have been charged, but intention is the only type of MR available for that crime
What is the test for indirect / oblique intent? (2 part)
- Was the consequence virtually certain to happen?
- Did the defendant appreciate this to be the case?
(if answer to either of these is no, intent not satisfied & not guilty)
Is motive the same as intention?
No - motive is not the same as intention! But motive can be used as evidence of intention
What is the test for recklessness?
- The risk must be an unjustifiable one to take (objective)
and
- The defendant must be aware of the risk but go on to take it (subjective)
(ie. Is D aware of the risk? In all the circumstances known to him, is this an unreasonable risk to take?)
Where the mens rea requires only negligence, how is the defendant judged?
Objectively, assessed against the reasonable person
Only the defendant’s actions are relevant - individual considerations (their motive, state of mind, (lack of) experience are all irrelevant)
What are strict liability offences?
Offences for which mens rea is not required for one or more elements of the actus reus
(Usually statutory - eg. speeding, driving with excess alcohol)
Nb. In absence of any express statement as to whether strict liability or MR, rebuttable presumption that the offence is not strictly liable (ie. need MR)
What is transferred malice?
Setting out to commit a crime against A but, in error, committing a crime against B
What is the doctrine of transferred malice?
The defendant’s intention towards A may be transferred to B (ie. MR can be transferred from one offence to another)
But ONLY where the offences have the SAME MR
What is the rule of coincidence of actus reus and mens rea?
General rule: AR & MR of an offence must coincide in time for the defendant to be guilty of an offence
Exception: Continuing act principle
Exception: Single transaction principle
What is the continuing act principle for coincidence of AR & MR?
Where the defendant’s act satisfied the actus reus of an offence &, at some point in that act, also had the necessary mens rea for that offence
(eg. driving onto foot & refusing to move is all the same, continuing act - as long as had MR at one point, didn’t matter that did not have it at the beginning of the act)
What is the single transaction principle for the coincidence of AR & MR?
Relevant where there is a series of events &, from the outset, defendant is involved in criminal activity
–> Provided that the eventual act that causes death is part of the same sequence of events as the initial act, doesn’t matter if time lapse between the two
- Pre-planning is not a requirement
- Transaction continues for as long as trying to cover up crime believed to have been committed
(ie. provided that defendant had MR at some point along the continuum, didn’t matter that no MR at the specific moment they committed the MR)
What is the difference between offences of basic intent & offences of specific intent?
Offences of basic intent can be committed either intentionally or recklessly
Offences of specific intent can only be committed intentionally (eg. murder, theft)
(Can rely on voluntary intoxication as a defence for offences of specific intent only)
Can transferred malice apply from person to object?
No.
