Definition of the offence: Actus Reus & Mens Rea

Question 1

What is the burden and standard of proof in criminal law?

Answer 1

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)

Question 2

Who has the legal & evidential burden of proof in criminal law?

Answer 2

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)

Question 3

What is the standard of proof where the prosecution has the burden?

Answer 3

Beyond reasonable doubt

V high standard - convict only if sure of defendant’s guilt

Question 4

What might the actus reus of an offence consist of?

Answer 4

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)

Question 5

Is there liability for omissions?

(ie. can you be liable for a crime where you don’t act)

Answer 5

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

Question 6

What is the exception to the general rule that there is no liability for omissions?

Answer 6

Where the defendant has a legal duty to act + breaches that duty + the breach causes the offence to occur + requisite MR

Question 7

How might a positive duty to act arise?

Answer 7

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)

Question 8

What must be proved as part of the actus reus for result crime?

Answer 8

Causation - factual & legal

Question 9

What is the test for factual causation?

Answer 9

‘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

Question 10

What is the threshold for legal causation?

Answer 10

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

Question 11

What will break the chain of causation (novus actus interveniens)?

Answer 11

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

Question 12

What will not break the chain of causation?

Answer 12

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)

Question 13

Will the intervention by a third party break the chain of causation?

Answer 13

Only if:

It is a free, informed, deliberate act

or

Not reasonably foreseeable

Question 14

Will medical negligence break the chain of causation?

Answer 14

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)

Question 15

Will the victim’s religious beliefs break the chain of causation?

Answer 15

No - ‘thin skull’ rule: must take victim as find them

Question 16

Will an escape / fright & flight action of the victim break the chain of causation?

Answer 16

Not if the victim’s action is reasonably foreseeable

Will only break chain if it is not reasonably foreseeable (‘daft escapes’)

Question 17

Will the victim refusing medical treatment break the chain of causation?

Answer 17

No

Question 18

Will a voluntary, informed decision of the victim (eg. defendant gives victim syringe of heroin, victim injects self & dies) break the chain of causation?

Answer 18

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)

Question 19

Mens Rea: what is the meaning of intention?

Answer 19

‘Aim or purpose’

ie. Was the result of the defendant’s action the defendant’s aim or purpose?

Question 20

What is the difference between direct intent & indirect/oblique intent?

Answer 20

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

Question 21

What is the test for indirect / oblique intent? (2 part)

Answer 21

1. Was the consequence virtually certain to happen?
2. Did the defendant appreciate this to be the case?

(if answer to either of these is no, intent not satisfied & not guilty)

Question 22

Is motive the same as intention?

Answer 22

No - motive is not the same as intention! But motive can be used as evidence of intention

Question 23

What is the test for recklessness?

Answer 23

1. The risk must be an unjustifiable one to take (objective)

and

2. 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?)

Question 24

Where the mens rea requires only negligence, how is the defendant judged?

Answer 24

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)

Question 25

What are strict liability offences?

Answer 25

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)

Question 26

What is transferred malice?

Answer 26

Setting out to commit a crime against A but, in error, committing a crime against B

Question 27

What is the doctrine of transferred malice?

Answer 27

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

Question 28

What is the rule of coincidence of actus reus and mens rea?

Answer 28

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

Question 29

What is the continuing act principle for coincidence of AR & MR?

Answer 29

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)

Question 30

What is the single transaction principle for the coincidence of AR & MR?

Answer 30

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)

Question 31

What is the difference between offences of basic intent & offences of specific intent?

Answer 31

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)

Question 32

Can transferred malice apply from person to object?

Answer 32

No.