Criminal Law Building Blocks - PDF

Prepared by Rana Hardhy Attorney-at-Law, LLB (London), LLM (London) (Reading) This note has been prepared using the University of London criminal law module guide 24/25 *Strictly f...

Prepared by Rana Hardhy Attorney-at-Law, LLB (London), LLM (London) (Reading) This note has been prepared using the University of London criminal law module guide 24/25 *Strictly for RIC students only Understanding the building blocks of criminal liability Criminal law is made up of basic elements: 1. prohibited conduct (the external element/the actus reus/the wrongdoing component) snatching someone’s handbag, hacking into their computer, poisoning their dog or even killing them 2. mental element (the internal element/the mens rea/the fault element) intention, recklessness, wilfulness or knowledge These elements can be reduced to an equation: prohibited conduct + mental element = criminal liability The Latin maxim actus non facit reum nisi mens sit rea is a traditionally used shorthand for this equation. Its usual translation is ‘an act is not criminal in the absence of a guilty mind’; or, more analytically, ‘criminal liability requires D to have done something criminally wrong (actus reus) with an accompanying blameworthy state of mind (mens rea)’. 3. the absence of any defence As a student of criminal law, your job when analysing a case is always to ask the following questions in the following order. Has the accused performed a prohibited act? Was that act accompanied by a specified state of mind or mental element? Does A have a defence for the killing? The three basic elements in crime 1. Actus reus The actus reus of a crime is the package of behaviour which the law prohibits. This package may prohibit simply acting in a particular way, as in the offence of careless driving, or it may prohibit bringing about a particular result, as in murder or manslaughter. It may also prohibit doing something, or bringing about something in particular circumstances, such as, in the crime of rape, having intercourse with another without their consent. This can be represented as follows: The actus reus of a crime comprises conduct, with or without a designated result, including the presence of any circumstances necessary for that conduct to be criminalised. 1  Prepared by Rana Hardhy Attorney-at-Law, LLB (London), LLM (London) (Reading) This note has been prepared using the University of London criminal law module guide 24/25 *Strictly for RIC students only 2. Mens rea Liability for serious crimes requires proof that the accused was blameworthy in doing what they did. This is because it is a fundamental ethical principle underpinning the criminal law that the state has moral authority to punish its citizens only if they deserve it. This moral principle – that justice in punishment requires punishment to be deserved – is known as the principle of retribution. This principle reflects how we go about things in everyday life. In the home, for example, children who break vases, ornaments or windows tend not to be punished if the breakage was accidental, since punishment would be unfair. In the criminal law, the blameworthy states of mind most commonly used to justify punishment are: intention recklessness dishonesty knowledge belief. What you should notice about all these forms of mens rea is that they are states of mind. In other words, they reflect a conscious attitude of the accused to what they are doing: put simply, they are aware of what they are doing. Having such an attitude is what makes them deserving of punishment, since they are consciously defying a standard of conduct binding on them. So a person who intentionally kills another, recklessly damages their property, dishonestly takes their property or knowingly buys and sells their stolen property is not only doing wrong: they also know they are doing wrong but do it nevertheless. Hence, they deserve to be condemned and punished. Note: Another justification for punishment is prevention. Utilitarian theorists justify punishment to reduce the incidence of anti-social and dangerous conduct through punishment’s deterrent or preventive function. Where prevention comes into its own is with respect to those offences that have harm prevention rather than moral wrongdoing as their primary focus. Such offences often have a fault element that requires no conscious awareness of doing wrong: careless driving and gross negligence manslaughter are examples of these. Other crimes need no fault element at all. These are known as crimes of strict liability: most driving offences are of this nature. Such offences are justified as being not contrary to principle because they do not tend to involve social stigma or carry imprisonment as a potential punishment. 3. Defences The third element in criminal liability is that of criminal defences. Defences block criminal liability although the elements of the offence (actus reus and mens rea) are present. Some of the more common defences are self-defence, insanity, consent, duress and necessity. 2  Prepared by Rana Hardhy Attorney-at-Law, LLB (London), LLM (London) (Reading) This note has been prepared using the University of London criminal law module guide 24/25 *Strictly for RIC students only Defences involve one of two moral claims to avoid liability. The first is that it would be unfair to punish the accused, although their act was wrongful, because they were, in the words of H.L.A. Hart, deprived of ‘the capacity or a fair opportunity to conform’ to the prohibition (Punishment and responsibility, 1968). Such defences, of which duress and insanity are examples, are known as excuses. The second is that although the definition of the offence is satisfied the act of the accused was not wrongful because of special circumstances. Such defences are known as justifications. An example is self-defence. The fact that defences operate outside the boundaries of the offence definition has one very significant consequence. If an element of the offence definition is not present but the accused does not know this when they are acting, they still escape liability. For example, if A has intercourse with B believing that she is not consenting when in fact she is consenting, A is not guilty of rape, since one of the basic elements of the offence (actus reus) is absent. This is not the case with defences. To rely on a defence there must not only be a good reason for the accused acting as they do, but also the accused must act for that reason. Proving the elements of the offence Burden of proof Suppose A shoots B dead in broad daylight with 100 witnesses to the killing. She is charged with murder. A admits what she did but claims it was an accident. In other words, A is making a claim about her mens rea. She is saying that because the killing was an accident this means that she did not intend to kill or cause grievous bodily harm to B. So who does the proving? Does she have to prove it was an accident or do the prosecution have to prove it was not? In Woolmington v DPP AC 462, the House of Lords had to consider whether the fact that the actus reus was satisfied meant that the burden was placed on A to prove that the killing was an accident. The famous conclusion it reached was that the burden of proof did not pass to A, and never would. People are assumed innocent until proven guilty. This means that in respect of all the elements of all offences the burden of proof is on the prosecution. So, with respect to the actus reus, the prosecution must do the proving, and it must prove every bit of the actus reus. For example, the actus reus of the crime of rape is having intercourse with a person without their consent. This means that the prosecution must prove to the satisfaction of the jury both that sexual intercourse between the two parties took place and that the intercourse was non-consensual. Again, with respect to the mens rea, the prosecution must do all the proving. For example, in a case of theft of a wallet, the prosecution must prove that D took V’s wallet intending never to return it; or, in a case of handling stolen goods, that D knew or believed the goods she was handling were stolen. 3  Prepared by Rana Hardhy Attorney-at-Law, LLB (London), LLM (London) (Reading) This note has been prepared using the University of London criminal law module guide 24/25 *Strictly for RIC students only Finally, with respect to defences, again the prosecution must do the disproving. For example, it must prove that D was not acting in self-defence or was not acting under duress. Here, however, a slight qualification is needed. The prosecution does not bear this burden with respect to defences unless the defence first adduces some credible evidence that D may have been acting in self-defence or under duress. In other words, the prosecution does not have to counter every defence the accused may possibly raise, but only those which are worthy of being taken seriously. This evidential burden on the defence is not heavy, however; it is simply designed to ensure precious court time is not wasted proving the obvious. Standard of proof Consonant with the principle that a person is considered innocent until proven guilty, the prosecution must prove each and every element of the offence ‘beyond reasonable doubt’. This means that the jury or magistrates must not convict unless the prosecution has made them sure that all the elements of the offence are present. If, therefore, the jury is convinced that A took a handbag belonging to V (actus reus) and that the taking was dishonest (mens rea) and think that it is probable, but without being sure, that it was A’s intention to keep the handbag permanently (mens rea), it must acquit of theft. 4