Basic elements of crime
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).
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).
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 Malcherek and 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).
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).
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).
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.
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 and Shankland, 1986, R v Nedrick, 1986 and R v
Woollin, 1998).
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.
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.
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.
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).
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).
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).
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.
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 (Harrow LBC 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.
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
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.
Murder
Lesson Objectives
• State the definition of murder
• Explain the actus reus of murder
• Explain cases that illustrate the actus reus of
murder
• Explain the issues and rules with respect to
causation and murder
• Apply the rules to a given situation
Murder
• Is an example of unlawful homicide
• Homicide is the killing of one human by
another
• It can be lawful or unlawful (when is it
lawful?)
Coke’s definition
‘Murder is when a man of sound memory, and of the age
of discretion, unlawfully killeth within any country of the
realm any reasonable creature in rerum natura under the
king's peace, with malice aforethought, either expressed
by the party or implied by law, so as the party wounded or
hurt die of the wound or hurt, within a year and a day
after the same.’
Which part is the actus reus? Which part is the mens rea?
Murder
Actus Reus
Actus reus
• Murder is committed when a person unlawfully kills a
human being under the queen’s peace.
• The victim must be a human who is born and not dead.
• The rules on factual and legal causation apply – the
defendant must cause the death of the victim.
• The old rule that the victim must die within a year and a
day was abolished by the Law Reform (Year and a Day
Rule) Act 1996.
• Murder is a common law offence
• The definition has changed a little over the last
couple of centuries
• The modern definition is the ‘unlawful killing
of a human being under the Queen’s peace
with malice aforethought’
• Can you pick out the actus reus and mens rea?
• Conduct: An act or omission, in murder the killing
• Circumstances: Which surround the act, in murder
that it is unlawful, under the Queen’s peace, and of a
human being
• Consequences: For ‘result’ crimes there must be a
certain consequence, for murder the act or omission
must cause death
• So, the actus reus of murder is the killing (conduct)
which is unlawful and of a human being, in peace
time, (circumstances) and which results in death
(consequence)
Unlawful
act or
omission
The act
caused the
death
Murder
The act was done with
malice aforethought
A death of
a human
results
• Most crimes require an act
• An omission cannot usually make someone
guilty of an offence
• There is no ‘good Samaritan’ rule as there is in
France
• The exception is where there is a duty to act
• What cases do you know where an omission to
act resulted in a criminal charge?
• Should there be criminal liability for not
acting?
• Many of the cases on omissions were
manslaughter (Stone & Dobinson) or other
crimes (Miller, Dytham)
• Can you think of one where the charge was
murder?
• Gibbins & Proctor was murder because there
was evidence they acted with intent
• Can you think of any situations when killing
would be lawful?
• Until the mid-sixties when capital punishment
was abolished, killing by hanging was legal
(by the state)
• Self-defence may make a killing lawful
Activity
• Page 3 activities
• As murder is a ‘result’ crime, the main issue with the
actus reus is whether the act or omission causes the
result, i.e. death
• This is an important issue in all result crimes
• These include the offences against the person
• The cases will be important for both areas
• Both factual and legal causation must be proved
• Can you think of a case on factual causation?
Factual Causation
The death would not have happened but for the
conduct of the defendant
• White (1910)
• Facts:
• Pagett (1983)
• Facts:
• Law:
• Law:
• In White D put poison
in his mother’s drink
• She had a heart attack
before she drank it
• ‘But for’ his act she
would NOT still be
alive
• His act did not cause
her death
• In Pagett, D held a girl
in front of him as a
human shield
• He then fired at the
police
• The police fired back
and she was killed
• ‘But for’ his act she
would still be alive
• His act did cause her
death
Legal Causation
Legal causation requires the act to be the
operating and substantial cause of death
If the chain of causation is broken, then there
is no liability for unlawful homicide.
This does not mean no liability for the original
act though.
• D’s act must be more than minimal. This called the de
minimus rule
• Now acceptable to say it is more than a slight or
trifling link - Kimsey
• D’s act must make a significant contribution Cheshire
• Legal causation is based on the ‘chain of causation’
• There may be an intervening act which breaks it
‘Taking the victim as he finds him’
Thin skull rule – Blaue (1975) – blood
transfusion
• If something has occurred after the original act or
omission, it may be argued that the chain of causation
is broken
• If it is the victim’s own act then two questions arise:
– Does the thin skull rule apply? See Blaue
– Was the victim’s act foreseeable? See Roberts and
compare it to Williams
• You can also use Pagett – it was foreseeable the
police would shoot back
• The original act may not kill but may cause the
victim to require treatment
• If that treatment then causes the death it has to be
decided whether it breaks the chain
• Compare Smith and Jordan
• The main law now comes from Cheshire
• Medical treatment will not usually break the chain
unless it is ‘palpably wrong’
• What were the facts in Cheshire?
Is there an act or omission
An omission may, rarely, suffice
Gibbins & Proctor
Did this cause the death? Factually? Use the ‘but for’ test, White
Legally ? Look at the chain of causation
Roberts
It won’t be broken by a foreseeable act or if
the thin skull rule applies
Blaue
The original act need not be the sole cause, but must be more than minimal
Nor if the original act made a significant
contribution
Cheshire
Activity
Page 6 activities
Your Task
Create a chart that shows each step of the way
with regards to the actus reus of murder,
omissions, reasonable person, causation,
taking the victim as you find them, intervening
acts (victim or someone else) and use cases to
demonstrate.