ELEMENTS OF LIABILITY

Question 1

ACTUS REUS AND MENS REA

Answer 1

1. A criminal offence usually requires a physical act (actus reus) and a mental state (mens rea) to occur at the same time (that is, concurrence).
2. Some offences do not have a mens rea requirement; these are strict liability offences, where the offence is committed if the actus reus is complete.

Question 2

DEFENCES IN THE CRIMINAL EQUATION

Answer 2

1. If the prosecution have proved that the actus reus and mens rea of the alleged offence are fulflled, a defendant may nev-ertheless argue that they are not culpable or less culpable
2. if a defence is available to them. Defences can be complete (resulting in acquittal) or partial (resulting in conviction of a lesser offence).

Question 3

ACTUS REUS/PHYSICAL ACT

Answer 3

The physical act can be broken down into three possible ele-ments (not all elements will be required for every ofence):
*Conduct—These are the physical acts or omissions by the defendant that make the defendant liable for the ofence.
*Circumstances—These are the facts that must exist for a defendant to be liable.
*Result—This is the outcome that must occur for the offence to be committed.

Question 4

Conduct

Answer 4

All criminal offences require some conduct on behalf of the defendant.
1. Omissions Sometimes Can Be Criminal Acts
In certain circumstances, failure to act can also amount to conduct. Two requirements must be satisfed for a failure to act to amount to a criminal offence:
*There must be** a duty **on behalf of the defendant to act; and
*The defendant must have breached that duty by failing to act sufciently.
A duty to act will arise in a number of circumstances, including:
*Under statute, such as an obligation to stop at the scene of an accident;
*Where there is a special relationship, such as parent-child or doctor-patient;
*Where the defendant voluntarily assumed a duty of care for the victim;
*Where a duty is imposed by contract, such as passenger railway guard; and
*Where the defendant created a dangerous situation and is aware of having done so.

2. Possession and Entering Certain Situations
   Possession of a thing (for example, a weapon or a drug) can also be sufficient conduct, as well as placing oneself in a situation (for example, being a member of a terrorist organisation).

Question 5

Circumstances

Answer 5

Certain circumstances must exist for an offence to be com-mitted. For example, a defendant who damages a car com-mits the offence of criminal damage only if the car belongs to someone else. A defendant cannot cause criminal damage to their own car.
Exam Tip
While this concept might seem simple, it is likely to be tested on your exam. Do not jump to a conclusion just because a person burned down a house or damaged a car—make sure the damaged property belonged to someone else. A person is free to damage their own property.

Question 6

Result Crimes

Answer 6

Result crimes require a certain outcome for the ofence to be committed.
a.Causation
For all result crimes, such as murder, the defendant must have caused the result specifed within the ofence. For example, in the case of murder, the defendant’s actions must have caused the victim’s death. To assess whether the defendant’s act caused the result, the court will consider the** two-stage test** of factual and legal causation.
1. Factual Causation

2. Legal Causation
   This element is used to prevent the factual causation test from being overbroad. It prevents a conviction where factual causation (but for) is met, but other factors, such
   as lack of foreseeability, would make such a conviction
   unfair.

Question 7

factual causation

Answer 7

Factual causation is called the ‘but for’ test. The court will ask whether the result occurred ‘but for’ the defendant’s conduct.
Acceleration of Result
If there is more than one cause or even if the defendant’s action slightly accelerates the result, there is sufficient causation in criminal law.

Question 8

legal causation

Answer 8

1. Substantial
   For the defendant’s action to be a legal cause, the action must be substantial—the defendant’s role must be more than minimal, slight, or ‘trifing’. For example, if a group of people are beating up a victim, they all are equally responsible for the wounds that result. However, if the defendant was not part of the group and simply brushed the victim before the group attacked, that would not be sufcient.
2. Operative
   The defendant’s action must also be operative. If the actions of someone or something else **intervenes **between the defendant’s act and the result, the defendant will not be liable.

Question 9

break the chain of causation

Answer 9

Question 10

‘Thin Skull Rule’

Answer 10

That the defendant causes more damage than one would expect because of the vulnerabilities of the victim does not negate causation—the defendant will still be responsible. Likewise, a victim suffering greater harm because they refuse medical treatment on religious grounds
will not break the chain of causation. This is sometimes known as the ‘eggshell skull principle’ or ‘thin skull rule’. A defendant takes their victim as they find them.

Question 11

causation

Answer 11

Question 12

mensrea

Answer 12

Mens rea is the mental element of an offence; it is the state of mind the defendant must have at the time of the actus reus in order to be guilty of the offence. Motive is the reason that a defendant commits an offence. Motive may provide evidence that a defendant might have the necessary mens rea, but **motive in and of itself is not **an element of any offence in English law.

Question 13

intention

Answer 13

1. Intention is a common form of mens rea that applies to many diferent offences
2. The mens rea of intention can be satisfed in two ways: direct intention and indirect (or oblique) intention.

Question 14

direct intention(intentional or reckless)

Answer 14

The word ‘intention’ is given its ordinary meaning, namely ‘aim or purpose’. The defendant will satisfy the mens rea if the** act, circumstance, or outcome** specifed in the offence is their aim or purpose.

Question 15

Indirect (Oblique) Intention

Answer 15

1. Where the prosecution cannot prove that the defendant had direct intention, the court may fnd the defendant neverthe-less has intention if the outcome was** a virtual certainty** of the act and the
2. defendant realised the outcome was a virtual certainty. This is known as oblique or indirect intention.
3. For indirect intention to arise, the result of a defendant’s act must be:
   *A virtually certain consequence of their conduct; and
   *Realised by the defendant as being virtually certain.
4. Indirect intention is available **only **for specifc intent offences (where recklessness is not available as a form of mens rea). It never applies to basic intent offences (where recklessness is available as an alternative form of mens rea).
5. If the defendant is charged with a basic intent offence, they cannot rely on indirect intention, but recklessness will be available as an alternative.

Question 16

Specifc Intent

Answer 16

1. Some offences specify intention as the only form of mens rea (for example, murder or causing grievous bodily harm with intent (‘s18 GBH’)) and are known as **specifc intent offences. **
2. These offences can be committed only intentionally, unlike others which can be committed either with intention or recklessly .
3. it is an offence (attempt) to try to commit an offence but fail. Attempt is a specifc intent crime—even if the crime attempted is not. Thus, although criminal damage can be committed either with intention or recklessly, attempted criminal damage can only be committed with intention.

Question 17

Specific Intent Crimes

Answer 17

Question 18

Transferred Malice

Answer 18

If a defendant has the intention to commit an ofence against one victim, but inadvertently commits the ofence against a diferent victim, the intent is ‘transferred’ to the new victim and the mens rea requirement of the ofence is satisfed.

Exam Tip
A person found guilty of an offence on the basis of transferred malice is usually guilty of two offences: the completed offence against the actual victim and the **attempted offence **against the intended victim. Therefore, in the example above, D is guilty of murdering V but also is guilty of attempting to murder B.

a.Limited to Same Offence
Transferred malice applies o**nly where the ofence intend-ed is the same as the one committed.

Question 19

Recklessness

Answer 19

1. Crimes of recklessness require a lower level of culpability than those that require a defendant to intend the result of the crime (or that a circumstance should exist). Recklessness requires that:
   *The defendant foresees the risk from the act and continues regardless; and
   *In all circumstances known to the defendant, it must be an unreasonable risk to take.
2. The first part of the test is subjective (Did the defendant fore-see a risk?), and the second part is largely objective (Would a reasonable person have run this risk?). The extent of the risk is largely irrelevant. If the defendant sees any risk, the first part is satisfed.

EXAMPLE
D and their 11-year-old child C decide to set fire to some newspaper under a bin. The fire then spreads to a build-ing, causing it damage. D foresaw risk from setting the fire but took it anyway. A reasonable person would not have
run such a risk. D would be guilty of arson. C, being much younger, did not foresee any risk, so would not be guilty.

Question 20

Recklessness Crimes

Answer 20

Question 21

Negligence

Answer 21

Ofences of negligence require even lower culpability than recklessness. The test is similar to that for the tort of negli-gence. The court asks:
*Did the defendant owe** a duty of care;** and
*Did the defendant breach the standard of care expected?

Question 22

Strict Liability

Answer 22

the defendant can be found guilty from the mere fact that they committed the act. No mental state is required. Defences that negate state of mind, such as mistake of fact, are not available.

Question 23

Corporate Liability

Answer 23

a.Identifcation Doctrine
A corporation can be held liable for criminal acts. However, because a corporation is an entity distinct from its owners, it is difcult to prosecute a corporation for any crime that requires a mental state. To do so, under the** ‘identifcation doctrine’**, the prosecution must fnd a ‘controlling mind’—a person whose actions and mental state can be said to be that of the corporation as a whole.

b.Statutory Offences
To ifll in this gap, Parliament has introduced specific offences that target corporations and do not require a mental ele-ment. These often cover failure to meet health and safety standards.

Furthermore, many statutes also impute liability on a corporation if it “fails to prevent” certain offences. The CPS and Serious Fraud Office (‘SFO’) can also defer prosecutions on corporations to allow them to ‘fix’ problems, such as health and safety breaches, upon agreement with them. Such a deferral is not available to physical persons.