Criminal Offence: Actus Reus & Mens Rea

Basic Structure of a Criminal Offence

• A criminal offense is Actus Reus (conduct + circumstances + consequences) AND Mens Rea (the fault requirement in respect of the Actus Reus elements), in that defendant is criminally liable unless able to rely on a supervening defence

Mental Element in Agency

• The mental element in agency should be distinguished between tragic events involving a human source, a defendant's mind must accompany their act, constituting volitional conduct (not automatic, a reflex, etc.)
• Not much "mind" is needed, only the ability to move in awareness of surroundings with self-direction of bodily movements
• The person does not have to be successful in what they intended to do

Human vs Animal Agency

• Human agency is rule-oriented, incorporating practical and ethical rules, which involves a normative orientation
• Human practical reasoning draws on moral worth and law knowledge to identify goals, and means to ends
• Because of human action's inherent rule-following, moral evaluation of action makes sense

Functions of Mens Rea

• Mens rea serves to specify the type of wrongdoing and ensure the defendant was culpable in committing it
• Mens rea links the bad act to the person and ensures they did something wrongful and can be blamed
• Mens rea helps establish the defendant is at fault for committing the offense
• Mens rea includes fair labelling so any fault elements accurately capture the wrong doing
• Mens rea connects to the fair warning/limiting liability function which pinpoints the aspect of practical reasoning defendant should avoid in order to evade the offence

Mens Rea Terms

• Modern statutes use intention, recklessness, negligence, knowledge, belief, suspicion and dishonesty
• Older terms such as wicked, malicious and callous are no longer in use
• Modern interpretations have been given to older statutes using these terms to bring them in line with modern equivalents

"Subjective Fault"

• Not all fault terms imply subjective fault which is where the defendant was aware of this dimension of their conduct
• For instance dangerous driving in the Road Traffic Act 1988, defined as driving below the standard expected of a competent driver, and would be obvious to one

Analyzing Actus Reus/ Mens Rea

• The Fraud Act 2006 is an example of legislative intention regarding the actus reus and mens rea requirement
• Section 1 outlines the conditions for being guilty of fraud by breaching sections listed in subsection (2)
• Section 2 addresses fraud by false representation, where a person dishonestly makes a false representation intending to cause gain or loss, also the representation is untrue and the person knows it

Offences Against the Person Act 1861 Section 23

• This Act contains information pertaining to maliciously administering poison to endanger life or inflict grievous bodily harm, even though it is not applicable to the syllabus, it is an example

Presumption of Mens Rea.

• The courts will assume that Parliament intended mens rea to be part of a statute that is silent on this point, the main part that will be "read in" is intention or recklessness as an element
• Sweet v Parsley AC 132 gives where it's unclear if mens rea is required, there should for centuries been a presumption that parliament would not make criminals of individuals not belameworthy, that will therefore require words to read in mens rea
• This principle of statutory construction can be overcome
• Overcoming the presumption are the nature of offence, and/or statutory wording or the overall statutory scheme

Constructive Liability.

• Constructive Liability is proven when prosecution has to prove fault with regard to base e.g. intent, but doesn't need to show fault with regards to circumstantial consequence
• Strict liability is where no fault is required

Strict Liability Element

• The Actus Reus features an element with no matching mes rea requirement
• Prosecution do not need to prove fault in relation to each facet
• The Sexual Offences Act is an example, specifically section 5 where there is commission of offence if there is intentional penetration, but the participant is under 13 years of age
• Strict liability issues can cause paternalistic problems which may be problematic

Narrow Culpability vs Broad Culpability

• Narrow culpability is the mens rea elements in an offence definition, that the defendant has done what the offence prohibits, with whatever attendant mindset that offence picks out
• Narrow culpability just means that the mens rea requirements of the offence are met
• Broad culpability is focuses on how the commission of the offence reflects on the defendant it raises the question how badly committing the offence reflects on the defendant
• Broad looks wider than these required elements
• Broad culpability would be absent if defendant shouldn't be blamed
• Partial defense such as with murder is an either or question, broad is a coming in degrees where one can be more or less culpable

Why Difference Between Narrow and Broad Culpability Matters.

• Helpful in understanding what's at state in difficult cases, illustrated by the Kingston case
• Kingston 2 A.C. 355 (HL) highlights that a drug disinhibited D who touched underage child
• D who slipped drug into V knew of K's desires and wanted to blackmail him
• The conviction was upheld
• K was found blameworthy because he wasn't forced to
• Influence of drugs could minimise his guilt
• Helps understand academic discussion about criminal culpability
• Criminal law scholars began to rationalise and de-moralise in the 1950's and their intrepretation emphasizing attitudes to giving cognitive criteria for the mental state present
• Narrow culpability became separated from broad which increasingly established the particular mental state identified with offence, now saying less of whether defendant is blameworthy

The "Culpability Principle"

• "links questions of capacity and fault
• The culpability principle comprises of three elements; normal psychological makeup of actor, actual connection between state of mind and deed, absence of unusual circumstances impacting moral quality of actor's conduct

Roadmap for the lectures.

• Lecture 2: Intention, Knowledge, Belief.
• Lecture 3: Recklessness.
• Lecture 4: Intoxicated Defendants.
• Lecture 5: Criminal Negligence.

Intention

• D’s aim/goal to do prohibited activity or cause prohibited consequence
• D “means to” do action or cause action, including undesired end cases, good motive cases, necessary means to ends and inseparable side-effects

Directing a Jury on Intention

• Judge should avoid elaboration or paraphrase of what's meant by intent but rather it should be left to the jury's food sense to act with it
• Elaboration is necessary to avoid misunderstanding

Oblique

• Further explanation required when foresight of risk/harm is relied on to support findings of intention
• Jury will be directed where doing X or bringing Y was D's goal, but argued to have intended to do/cause Y

Hyam

• Hyam [1975] AC 55 addresses the issue
• D, jealous at being replaced in a man's affections burns house letter box, knowing others are asleep
• D, made sure her former lover wanst present
• D said all she wanted to do was scare her, she was convicted of murder and the appeal was dismissed
• It doesn't absolve the heart surgens because they forsee as a matter of probability that they action will actually kill the patient

Malony

• Moloney AC 905 is based another case
• D has challenged by V after family party in living room, that he could outload them...
• D was quicker, and they said he could bet don't have hte guts to pull trigger
• D did pull trigger and killed his much loved stepfather
• D said he hadn't aimed the gun, D didn't consider the probable consequences of what he did resulted in injury to the father
• Murder conviction was quashed and a manslaughter conviction subsituted

Foresight and Foreseeability

• Should remain always part of the law of evidence and inference to be left to the jury
• Moloney's guidelines are unsafe and misleading when judgment to the Moloney guidelines as they need reference to probability
• The greater the probability of consequences the more likely it is that consequence was foreseen & probable when intended, a the decision is juries

Woolin

• Fact that D threw his 3-months-old son at hard suface before he died from related injury, without evidence of ill treatment
• Jury was giving directions to the jury
• D's appeal was ruled to allow a misdirection
• Must be directed their not entitled to infer find unless they feel that death or serious body harm was virtual
• D has attitude towards virtual uncertain risk

More on D

• D was virtually certain that would but not as D had to do or cause Y
• It still can be held to have intended the result additional action

Jenner

• [2019] EWCA Crim 2001 D naturist nude expose private "intenting cause alarm".

Transferred Malice Rule

• Stated by lord Mustil
• if the defendant does X and then doesn't do that, then the harm is added actually to Y in commit
• Mistaking similar looking victims
• Intent to harm A, bullet that harmed B also 18-offences requires it

Key case

• R v. Pembliton (1874) LR 2 CCR 119 is the 19th century law
• facts being the def threw a stone hitting victim. They did not claim to be reckless or intending
• It is impossible to move to crime, or property crime
• D quarreled in a pub then wounding her contrary to section 20 to another term
• The double"transfer" intent for the double"transfer"is, or foetus
• cannot really transferred to find
• that cannot arise of a section 18. There is no such,
• B. Other knowledge/belief: [26]).