Topic 1

1. Topic 1 Basic elements of crime

2. Actus reus • The actus reus (Latin for ‘guilty act’) is made up of all the parts of a crime except the defendant’s mental state. • There are several different types of actus reus, for example: • In conduct crimes, the actus reus is simply prohibited conduct. • For state of affairs offences, the actus reus involves ‘being’ rather than ‘doing’ – it is the circumstances that create the offence, e.g. R v Larsonneur (1933), Winzar v Chief Constable of Kent (1983).

3. Causation In result crimes, the prosecution must prove a causal link between the defendant’s actions and the prohibited result. First, the prosecution must prove factual causation – did the defendant’s actions cause the harm as a matter of fact? The test is the ‘but for’ test: but for the defendant’s criminal action or omission, would the victim have suffered harm? If the answer is no, the defendant is criminally liable. If something else is the cause of the damage, the defendant is not liable, as in the case of R v White (1910). The test for legal causation is whether the defendant’s conduct made a ‘significant contribution’ to the result (the de minimis rule).

4. Chain of causation • The chain of causation may be affected by several things: • Actions of the victim may break the chain of causation, but only if they are unreasonable (R v Roberts, 1978). • Actions of a third party may break the chain of causation, but only if they are reasonably foreseeable (R v Pagett, 1983). If the victim has received negligent medical treatment, this will not break the chain of causation unless it is ‘palpably wrong’ (R v Jordan, 1956). Switching off a life-support machine will not break the chain of causation (R v Malcherekand Steel, 1981). • The ‘thin-skull’ test: if some pre-existing weakness or medical condition of the victim makes the result of an attack more severe than it would be ordinarily, the defendant cannot argue that the chain of causation has been broken (R v Blaue, 1975).

5. Voluntary conduct The general rule is that in order to be liable, the defendant’s conduct must be voluntary, e.g. Leicester v Pearson (1952).

6. Omissions • An omission is a failure to do something. The general rule in criminal law is that a person is not usually liable for his or her omissions unless under a specific duty to act. There are different circumstances that will give rise to a duty to act: • Duty arising from specific relationships, e.g. parents have a duty to look after their children and may be prosecuted if they fail to do so (R v Gibbins and Proctor, 1918). • Duty arising through a contract, i.e. if a defendant is under a contractual duty to act and fails to do so, he or she may be liable if others are likely to be injured as a result (R v Pittwood, 1902). • Duty arising from public office (R v Dytham, 1979). • Voluntary assumption of a duty (R v Stone and Dobinson, 1977). • Duty arising from dangerous prior conduct (R v Miller, 1983).

7. Mens rea Mens rea is Latin for ‘guilty mind’ and concerns the criminal intention of the defendant when the actus reus is committed. Along with the actus reus, it is a necessary requirement of most criminal offences – except those classed as strict liability. There are several types of mens rea, and different crimes have different mens rea requirements. Two of the most common types of mens rea are intention and recklessness.

8. Intention Many crimes require that the defendant had the necessary intention when committing the offence. It is a subjective test that requires the court to establish what the defendant was actually thinking. Intention is a word in common use, but it has two distinct meanings in the context of mens rea: direct intention and indirect (oblique) intention (R v Moloney, 1985, R v Hancock andShankland, 1986, R v Nedrick, 1986 and R v Woollin, 1998).

9. Direct intention Direct intention means that the defendant set out to achieve a particular result or consequence. It is sometimes explained by saying that the defendant foresaw a particular result as a certainty and wanted to bring it about. It was defined in Moloney as ‘a true desire to bring about the consequences’. An example would be where a defendant shoots the victim in the chest because he or she wants to kill him or her. It is immaterial whether or not the desired result is achieved, since inchoate offences are still possible, e.g. attempted murder.

10. Indirect/oblique intention (1) Sometimes a defendant will claim that he or she did not intend the result of his or her actions and indeed did not want it to occur. If this is so, the defendant is not guilty and must be acquitted. The problem occurs, however, when the result was virtually certain to occur, although not desired for its own sake, and the defendant went ahead with his or her actions anyway.

11. Indirect intention (2) An example of indirect intention might be where a terrorist blows up a plane in order to kill one of the passengers. The terrorist may claim that he or she did not want to kill any of passengers other than his or her intended target, but by blowing up a plane, it is a virtual certainty that all the passengers will be killed. The defendant could therefore be said to have intended their deaths if he or she knew that they were virtually certain to occur and despite recognising this was determined to continue.

12. Recklessness Another common type of mens rea is recklessness, which covers the situation where a defendant takes an unjustifiable risk. As with intention, it is a subjective test, and the defendant must recognise the risk that he or she is running. Recklessness was defined in the case of R v Cunningham. There were previously two different types of recklessness, subjective and objective, but the objective form is now extinct following the case of R v G and Another (2003).

13. Transferred malice Under this doctrine, if the defendant with the mens rea of a crime performs the actus reus of the same crime, the mens rea or malice is simply transferred to the actual victim. This ensures that the defendant can be found guilty, even though the actual result was an unintended one, e.g. R v Latimer (1886) and R v Pembliton (1874).

14. Contemporaneity: continuing act The general rule is that to be guilty of a crime, a defendant must have the actus reus and mens rea at the same time. In some circumstances, this could lead to some criminals being acquitted, so the courts have developed ways of dealing with such cases. In situations where the actus reus comes first, the courts apply the ‘continuing act’ doctrine, where the actus reus is stretched over time to meet the point where the defendant had mens rea, e.g. Fagan v MPC (1969).

15. Contemporaneity: one transaction In some cases, the mens rea may come first. In this situation, the courts apply the ‘one transaction’ doctrine. This can occur when the defendant hits the victim and knocks him or her unconscious. The defendant might assume that the victim is in fact dead rather than unconscious and then try to dispose of the body. The victim is then actually killed during the disposal process, e.g. Thabo Meli v R (1954). Since it is all part of the same series of events, it is held to be a single transaction and the defendant will be guilty if he or she had both actus reus and mens rea at some point.

16. Strict liability There is no requirement to prove mens rea in strict liability offences – they are complete when the defendant performs the actus reus, e.g. Callow v Tillstone (1900). Types of offence include blasphemous libel (Lemon v Gay News, 1979), regulatory offences (Smedleys v Breed, 1974 and Sweet v Parsley, 1970) and cases involving public welfare (HarrowLBC v Shah, 1999). In the case of Gammon Ltd v Attorney General of Hong Kong (1985), the courts gave guidance as to when a crime would be regarded as one of strict liability.

17. Evaluation of strict liability • Advantages of strict liability include: • encouragement of high standards of care • no need to prove mens rea, so easier to obtain convictions • punishments are small • it acts as a deterrent • Disadvantages of strict liability include: • injustice • too easy to obtain convictions • some strict liability crimes incur a large penalty • it is not always a deterrent • sentencing is more difficult

18. Absolute liability If an offence is one of absolute liability, the defendant will be liable if he or she performed the actus reus. Unlike strict liability, the prosecution does not need to prove that the defendant was acting voluntarily, so even an involuntary act would incur liability. Few offences fall into this category, and those that do must be clearly defined as such.