The elements of a crime actus reus
and mens rea.
Introduction
The traditional
starting point for the study of criminal law is the constituents of a criminal
offence: actus reus (often referred to as the prohibited conduct, but more
accurately described as the external elements of the offence) and mens rea
(often referred to as the mental element, but more accurately described as the
fault element). Commentators and students alike want to find consistency and
certainty in the application and development of the criminal law, and most
criminal law textbooks dealing with the elements of crimes try to state
principles that the student should see consistently applied in later chapters
covering specific offences. The main problem is that the offences have developed
in a piecemeal fashion, exhibiting no underlying rationale or common approach. Thus
in examining actus reus, the student might be covering an offence defi ned in modern terms, e.g., by the Criminal
Damage Act 1971, or in obscure outdated language, e.g., in the Offences Against
the Person Act 1861, or the definition of actus reus may arise from the common
law, perhaps amended or augmented by statute, e.g., murder. Similarly, when we
examine our approach to mens rea, we can see little common ground. If the
offence requires the prosecution to prove intention, this must generally be
left to the jury without detailed guidance from the trial judge (R v Moloney
[1985]
1 All ER 1025); but
if recklessness is the issue, a direction spelling out to the jury what they
must find may be required. If one looks at the development of the concept of
recklessness one can see that, prior to the decision of the House of Lords in R
v G [2003] 4 All ER 765, a case involving criminal damage would have involved a
court in trying to assess whether the defendant was reckless according to the
definition laid down in Metropolitan Police Commissioner v Caldwell [1981] 1
All ER 961. Following the abandonment of ‘Caldwell recklessness’ in R v G [2003]
4 All ER 765, the issue has been simplifi
ed so that a court now has to concentrate on whether or not the
defendant was aware of the risk in question and if so, whether or not, in the
circumstances known to the defendant, it was unreasonable for him to take the
risk. If dishonesty is the mens rea
(see Theft Acts 1968–1996) the jury must consider two specific questions (would
ordinary people consider D dishonest?; if so, did D realize that they would?);
but these are questions of fact for them to resolve (R v Ghosh [1982] 2 All ER
689). In other words, there are three different approaches in establishing the
mens rea for different offences. A search for consistency is therefore a futile
exercise! Students should therefore be aware that studying the chapters on
actus reus and mens rea can produce a distorted impression of the criminal law.
One is dealing with concepts in isolation and could form the impression that
these general principles are consistently applied. One particular criticism is
that the criminal law is not consistent in applying objective or subjective
tests for liability. Objective tests consider what the reasonable person would
have foreseen. Subjective tests judge the defendant on the facts as he honestly
believed them to be. There appears to be an absence of any underlying rationale
and the offences develop independently of each other. One can understand why
Sir Henry Brooke (former head of the Law Commission) and many others wish for
codification of some, if not all, of the criminal law (see [1995] Crim LR 911—‘The
Law Commission and Criminal Law Reform’). Even established concepts that have
been applied by the courts for many years, may suddenly come under attack and
be interpreted differently by the judiciary. Thus the House of Lords in
Attorney-General’s Reference (No. 3 of 1994) [1997] 3 All ER 936, reversed the
Court of Appeal decision ([1996] 2 WLR 412), holding that the doctrine of
transferred malice could not apply to convict an accused of murder when he
deliberately injured a pregnant woman in circumstances where the baby was born
alive but subsequently died. Lord Mustill criticized the doctrine as having no
sound intellectual basis and involving a fiction, although the Criminal Law Review
disagrees with his view ([1997] Crim LR 830). In this chapter questions have
been chosen to cover all major aspects of this area. There are some problem
questions, but candidates should expect the essay questions in an exam to be
selected from these topics. Essays are therefore included on the important aspects
of mens rea: intention and recklessness.
Question 1
The practice of
leaving the issue of intention to the jury without any judicial guidance as to
its meaning is unworkable and likely
to produce inconsistent decisions. Discuss this statement with reference to decided
cases.
Commentary
There have been so
many important decisions on this important aspect of criminal law, that it is
always likely to be the subject of an examination question. Because the facts of R v Moloney [1985] 1
All ER 1025 are so well known, there is a temp-
tation simply to
regurgitate them with the House of Lords’ decisions. This must be resisted as there
are many ingredients in the answer, which requires careful planning and
organization. In summary, this is a question where it is quite easy to obtain a
pass mark but difficult to obtain a high grade.
Answer plan
• Mens rea
• Intention—defi nition
• Moloney [1985]—‘the
golden rule’
• Woollin
[1998]—direction on intention
• Law Commission No.
218
Suggested answer
Except with strict
(or absolute) liability offences, in order for an accused to be found Except with strict (or absolute) liability
offences, in order for an accused to be found guilty of a criminal offence, the
prosecution must prove that the accused committed the actus reus of the offence
with the appropriate mens rea. Mens rea generally signifies blameworthiness,
although in R v Kingston [1994] 3 All ER 353, the House of Lords confirmed that
the accused was guilty of an offence requiring the prosecution to prove
intention, although he was morally blameless. Mens rea is the mental element, which
varies from one offence to another; but generally, for the more serious
offences, it comprises intention or recklessness, with intention being reserved
for the most serious crimes.
One would therefore
think that, being of such fundamental importance, intention would be
specifically defined and rigidly applied, but this is not the case. There have
always been difficulties with the concept of intention within the criminal law.
What is it? How should it be defined? How does the prosecution prove it? How
does the trial judge direct the jury? These issues have been the subject of
much judicial and academic debate in recent years. Although the word
‘intention’ implies purpose or even desire, there have been many diverse definitions
by the judiciary, and commentators have also identified different types of
intention. First, direct intent, where it was the accuser’s purpose or motive
to bring about a result. Thus in R v Steane [1947] 1 All ER 813, the accused,
who assisted the enemy during the war, had his conviction quashed as the court
decided that he did not intend to assist the enemy; he intended to protect his
family, who would have been harmed had he not cooperated. Secodly, oblique intent,
where the accused does not necessarily desire the result but foresees it as
highly probable. Thus in Hyam v DPP [1974] 2 All ER 41, the House of Lords
upheld a conviction for murder where the .
The elements of a
crime: actus reus and mens re accused had set fire to the victim’s house even
though the accused’s purpose had been only to frighten the victim. Because
there was evidence that the accused foresaw that death or grievous bodily harm
was highly probable the House of Lords felt justified in concluding that her
state of mind could be regarded as a form of intent (on this matter the law is
now as set out in R v Woollin [1998] 4 All ER 103—see below). Thirdly, ulterior
intent, where it must be shown that in intentionally doing one act the accused
has a related purpose. Thus to be guilty of burglary under s. 9(1)(a) of the
Theft Act 1968, it is necessary for the prosecution to prove that the accused,
when deliberately entering a building as a trespasser, did so with a specific c related purpose in mind, e.g., to steal or commit
criminal damage. It would not be suffi
cient if the accused intentionally broke into the house with the sole
purpose of sheltering from the weather. The terms specific and basic intent,
are also used in respect of the defense of intoxication to distinguish between
those offences where intoxication is permitted as a defence and those where it is
not (see further DPP v Majewski [1976] 2 All ER 142). Although there is an
overlap between intentions on the one hand and motive and foresight on the
other, and these latter concepts assist the jury in their deliberations on intention,
it is clear that the concepts are not synonymous. Motive is the reason why a person
acts, while intention is his or her mental awareness at the time of the act.
Foresight can be evidence of intention, but it is not conclusive proof of it.
Section 8 of the Criminal Justice Act 1967 states that a court shall not be bound
in law to infer that the accused intended or foresaw a result of his actions by
reason only of its being a natural and probable consequence of those actions,
but ‘shall decide whether he did intend or foresee that result by reference to
all the evidence, drawing such inferences from the evidence as appear proper in
the circumstances’. The issue of intention was debated by the House of Lords in
R v Moloney [1985] 1 All ER 1025 and R v Hancock and Shankland [1986] 1 All ER
641. In the former case, Maloney shot his stepfather from point blank range and
was convicted of murder after the trial judge (following Archbold Criminal
Pleading Evidence and Practice, 40th edn, para. 17–13, p. 995) directed the
jury that: In law a man intends the consequence of his voluntary act:
(a) When he desires
it to happen, whether or not he foresees that it probably will happen, or
(b) When he foresees
that it will probably happen, whether he desires it or not.
The House of Lords
quashed the conviction on the basis that this was misdirection, Lord Bridge
stating that: the golden rule should be that, when directing a jury on the
mental element necessary in a crime of specific intent (i.e., intention), the
judge should avoid any elaboration or paraphrase of what is meant by intent,
and leave it to the jury’s good sense to decide whether the accused acted with
the necessary intent, unless the judge is convinced that, on the facts and
having regard to the way the case has been presented to the jury in evidence
and argument, some further explanation or elaboration is strictly necessary to
avoid misunderstanding.
Although the decision
may be criticized on the ground that their Lordships missed a golden
opportunity to define intention, it is in keeping with the modern trend of
leaving more and more issues to the jury, especially the meaning of words in
common use.
For example, Brutus v
Cozens [1972] 2 All ER 1297 (insulting); R v Feely [1973] 1 All ER 341
(dishonestly). This decision was followed by the House of Lords’ ruling in R v
Hancock and Shankland, where Lord Scarman also made the point that if intention
required a detailed direction it was best to leave this to the discretion of
the trial judge who would have had the benefit of hearing all the witnesses and
gauging the ability of the jury. He added that the trial judge could not do as
Lord Bridge suggested and simply direct the jury to consider two questions: first,
was death or really serious injury in a murder case a natural consequence of
the defendant’s voluntary act?; secondly, did the defendant foresee that
consequence as being a natural consequence of his act?—further instructing them
that if they answer ‘Yes’ to both questions it is a proper inference for them
to draw that the accused intended that consequence. Lord Scarman stated that
the trial judge must refer to the concept of probability—the more probable the
consequence, the more likely the accused foresaw it and intended it. Despite
clear House of Lords’ dicta to the contrary, the Court of Appeal in R v Nedrick
[1986] 3 All ER 1 did lay down some guidelines to the effect that the jury
should not infer intention unless they considered that the accused foresaw the
consequence as a virtual certainty. However, this decision has attracted criticism,
and the Court of Appeal in R v Walker and Hayles [1989] 90 Cr App R 226 stated
‘we are not persuaded that it is only when death is a virtual certainty that
the jury can infer intention to kill’.
Nevertheless, the
status of Nedrick was confirmed by the House of Lords’ discussion in R v
Woollin [1998] 4 All ER 103. The House, stating that where the simple direction
was not enough, the jury should be further directed that they were not entitled
to find the necessary intention unless they felt sure that death or serious
bodily harm was a virtually certain result of D’s action (barring some unforeseen
intervention) and, that D had appreciated that fact.
This decision also
illustrates one of the difficulties of the present approach, i.e., when is the
issue of intention so complicated as to warrant a detailed direction? In R v
Walker and Hayles, the Court of Appeal decided that ‘the mere fact that a jury
calls for a further direction on intention does not of itself make it a rare
and exceptional case requiring a foresight direction’. On the other hand, in R
v Hancock and Shankland, the House of Lords confirmed that the trial judge was
right to give a detailed direction, even though the content of the direction
was wrong. A further problem is that different juries may have different ideas
as to what constitutes intention, some insisting on purpose being necessary,
while others are prepared to accept that only foresight of a probable
consequence is required. There is clearly the
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