General Elements of Criminal Liability Flashcards
State the Actus Reus
- ACTUS REUS
The Actus Reus is the physical element of a crime, and is prohibited conduct that can be an act, an omission or a state of affairs. It must be Voluntary, and Hill v Baxter gives examples of what would not be voluntary acts. For example, being hit on the head by a stone.
Generally, an omission cannot be an Actus Reus, unless there is a failure to Act when there is a Duty to Act. The time where there is a duty to act are;
- A Contractual Duty – Pittwood
- A Statutory Duty – for example the failure to provide a specimen of breath under the Road Traffic Act 1988.
- A Duty because of a Relationship – Gibbins and Proctor
- A Duty to Care which has been taken on voluntarily – Stone and Dobinson
- A Duty through an official position – Dytham
- A Duty which arises where the defendant has created a dangerous situation – Miller
State Causation (Factual, Legal, NAI, Medical NEgligence and Thin Skull Rule)
Causation
The Prosecution must show that the Defendant was the Factual and Legal cause of the consequence.
Factual Causation is the “but for test” where the defendant can only be guilty if the consequence would not have happened “but for” his conduct (Pagett, White)
Under Legal Causation, the defendant can be guilty if he was the “operating and substantial cause of the consequence”, which means “significant, more than minimal cause”. (Smith).
Under Legal Causation, the chain of causation between the defendant’s conduct and the consequence can be broken by a Novus Actus Interveniens (Intervening Act) that is not reasonably foreseeable.
The Victim’s own act will not break the chain if it was reasonably foreseeable (Roberts, Corbett).
The act of a Third Party/Contribution of Others will not break the chain if it was reasonably foreseeable (Pagett).
Medical Negligence generally will not break the chain of causation unless it is “in itself so potent in causing death”, (Cheshire, Jordan).
The Thin Skull Rule will apply where the consequence is due to a hidden weakness and the defendant must take his victim as he finds them (Blaue).
State the Mens Rea
(Direct, Indirect and the Woolin Test)
MENS REA
In Criminal Law there is a general presumption that liability is based on fault. The Mens Rea of a criminal offence examines the state of mind of the defendant, and distinguishes between an accident and a criminal offence. It is the mental element of the crime, the “guilty mind”.
Intention
The Highest Level of Mens Rea is intention Direct (Specific) or Indirect (Oblique).
Direct (Specific) intention was defined in Mohan as where the defendant makes a decision to bring about a particular consequence. S8 Criminal Justice Act 1967 created a subjective test which makes it clear that this is the only part of the evidence from which intention can be inferred.
Indirect (Oblique) Intention is a lower level of Mens Rea than Direct (Specific) intention and concerns “foresight of consequences”. It was defined in Woollin as where the consequence of the defendant’s actions are a virtual certainty, and the defendant appreciated that this was the case.
The Woollin test was refined in Matthews and Alleyne, so that if Woollin “foresight of consequences” is present, this in itself is not intention, but it is evidence from which the jury is entitled to find that there was intention.
State the Mens Rea
(Subjective Recklessness, Negligence, Strict Liability Offences, Transferred Malice and Coincidence)
Subjective Recklessness
Subjective Recklessness is a lower level of Mens Rea than intention, and was defined in Cunningham as where the defendant foresees a risk of the consequence, and carries on regardless – knowingly taking a risk. It was also demonstrated in R v G&R.
Negligence
The concept of Negligence, where the defendant fails to meet the standards of the reasonable person, is widely used in civil law, but not in criminal law. However, one form of manslaughter can be committed by a very high level of negligence, known as “gross negligence manslaughter”.
Strict Liability Offences
There is a presumption in criminal law that for all offences mens rea is required. However, the court may decide that the offence in question is one of strict liability, which means that mens rea is not required, only actus reus.
The Wrds in an Act of Parliament may expressly or impliedly indicate that the offence is one of strict liability, for example polluting a river in Alphacell v Woodward.
In Gammon (Hong Kong) v A-G of Hong Kong it was held that regulatory offences are more likely to be considered strict liability offences, for example in **Harrow LBC v Shah **selling a lottery ticket to someone under age. Social concern offences are more likely to be considered strict liability offences, for example in Blake broadcasting without a licence.
“Truly criminal” offences punishable by imprisonment are also less likely to be considered strict liability offences, for example in B v DPP it was held that mens rea was required for the offence of inciting a child under the age of 14 to commit an act of gross indecency.
Transferred Malice
Under the principle of transferred malice, where a crime is intended for one person but falls on another by accident, the defendant’s mens rea towards the intended victim is transferred to the actual victim. The mens rea can only be transferred to another identical offence (Latimer, Mitchell).
Under the principle of transferred malice and joint enterprise, a defendant can be held guilty of a crime, even if he didn’t commit it (Gnango).
However, the defendant may not be guilty if the mens rea for the crime intended is different to that of the crime actually committed (Pembliton).
Coincidence of Actus Reus and Mens Rea
The General principle is that both the actus reus and mens rea of a crime must coincide ie. be present at the same time.
However, where the actus reus consists of a series of connected acts, or one long continuing act, as long as the mens rea is present at some point while the actus reus is still going on, then the two do coincide and there will be an offence (Thabo Meli, Fagan).
