The elements of a crime: actus reus and mens rea

The elements of a crime: actus reus and mens rea

Commentary

This question requires examination of some of the assumptions made about mens rea and the current trends in judicial thinking. Candidates would be expected to consider the main forms of mens rea and the extent to which courts are required to take an objective or subjective view of fault. Although ‘Caldwell recklessness’ has now been effectively consigned to legal history (for the time being at least) a good answer will need to show an awareness of that decision and its impact on the mens rea debate. Consideration also needs to be given to the issue of mistake and its relationship with mens rea. Finally, the answer should encompass some consideration of negligence as a form of mens rea and the extent to which its use accords with notions of subjective fault.

Answer plan

• The nature of mens rea

• Intention—R v Woollin— House of Lords’ decision

• The recklessness debate R v G [2003]—abandoning Caldwell

• The treatment of mistake and its effect on mens rea—DPP v Morgan [1976]

• Killing by gross negligence—whether objective or subjective

risk of inconsistent decisions and it is therefore not surprising that the Law Commission

(Nos 122 and 218) have recommended that the following standard defi  nition of inten-

tion be adopted:

a person acts intentionally with respect to a result when

(i) It is his purpose to cause it; or

(ii) Although it is not his purpose to cause that result, he knows that it would occur in the ordinary course of events if he were to succeed in his purpose of causing some other result.

Question 2

‘Mens rea is, by defi  nition, the defendant’s state of mind.’

Discuss the accuracy of this statement using case law to support your argument.

The elements of a crime: actus reus and mens rea

Suggested answer

Although mens rea translates literally as ‘guilty mind’, relying on this as the meaning given to that term in modern criminal law is likely to lead to error. This is because a defendant may be found to have mens rea even though he himself has not acted with the intention of committing an offence, or even with the awareness that this might be the result. The better approach is to regard mens rea as denoting the fault element that the prosecution has to prove. In the majority of cases this will involve proof of some positive state of mind on the part of the accused, but in other cases it may be enough to show that the accused failed to advert to something that would have been obvious to the reasonable person.

The two most important fault elements used in modern criminal law are intention and recklessness. It can now be said that, as far as these two forms of mens rea are concerned, liability cannot be established without evidence as to what the defendant foresaw when he committed the acts causing the prohibited results. Exactly what it is that the defendant has to have foreseen, and how much foresight he must be shown to have had, are questions that go to the core of the debate relating to where the dividing line between different types of subjective mens rea should be drawn. The modern definition of intention can be derived from a number of House of Lords’ decisions, notably R v Moloney [1985] 1 All ER 1025 and R v Woollin [1998] 4 All ER 103. A defendant cannot be guilty of murder unless he is proved to have acted with intent to kill or do grievous bodily harm. Where a direction on intent is deemed necessary, a jury should be instructed that they should consider the extent to which the defendant foresaw death or grievous bodily harm resulting from his actions. Only where there is evidence that he foresaw either consequence as virtually certain would it be safe for a jury to conclude that a defendant therefore intended either of those consequences. The key here is foresight. Section 8 of the Criminal Justice Act 1967 makes clear that foresight is a subjective concept—i.e., it is based on what the defendant actually foresaw not on what he ought to have foreseen, or indeed what the reasonable person would have foreseen had he been in the defendant’s shoes. Taken together, the definition of foresight in the 1967 Act, and the House of Lords’ ruling in Woollin ensure that where intention is the required mens rea, there can be no doubt that it will be based on the defendant’s state of mind—i.e., a subjective approach will be adopted.

The rationale for this is fairly obvious—it is hard to describe a defendant as having intended a consequence if there is no evidence of it having occurred to him. Even where there is such evidence, if the possibility of the consequence occurring has only fl  eetingly crossed his mind it would still be absurd to say he intended it. The law, therefore, requires a very high degree of foresight before a defendant’s state of mind is labeled as having been intentional.

Recklessness, by contrast, implies risk taking, as opposed to the defendant foreseeing a consequence as a certainty. Here there has been great controversy over the past few.

The elements of a crime: actus reus and mens rea decades as to the right approach to the determination of fault. The traditional approach to recklessness as a form of mens rea very much reflected the view that mens rea had to be based on the defendant’s state of mind. In R v Cunningham [1957] 2 All ER 412, the Court of Appeal held that a defendant was reckless only if he took an unjustifiable risk and was at least aware of the risk materializing. The key point about this approach to recklessness was that there would be no liability if the risk never occurred to the defendant.

Subsequently, during the 1980s a contrary view held sway, following the House of Lords’ decision in Metropolitan Police Commissioner v Caldwell [1981] 1 All ER 961. D’s conviction for criminal damage being reckless as to whether life would be endangered, contrary to s. 1(1) of the Criminal Damage Act 1971, was upheld on the basis that he had created an obvious risk that property would be destroyed or damaged; and had either given no thought to the possibility of there being any such risk, or had recognized that there was some risk involved and had nevertheless gone on to do it. The ‘not thinking’ formulation of recklessness here, clearly envisaged liability being imposed even though the risk in question had not occurred to the defendant. Whilst this might have been a desirable policy goal—it made it easier for the prosecution to secure convictions—it threw up many difficult issues. First, what of the defendant who did not think of the risk because it would not have occurred to him even if he had stopped to think? In Elliot v C (A Minor) [1983] 2 All ER 1005, a 14-year-old schoolgirl of low intelligence, who was tired and hungry, spilt some infl  ammable spirit and then dropped a lighted match on the wooden floor of a garden shed. She was charged under s. 1(1) of the Criminal Damage Act 1971. It was argued that she did not foresee the risk of fi  re, nor would she had she addressed her mind to the possible consequences of her action. Although Goff LJ stated that a test for recklessness which allowed the court to take into account the individual characteristics of the accused had much merit (a subjective approach), he felt bound by the doctrine of precedent (at that time) to follow Caldwell, and therefore concluded that the defendant should have convicted on the objective test basis, i.e., whether the risk would have been obvious to a reasonable man. Secondly, there was the argument that ‘Caldwell recklessness’ was not acceptable as a form of mens rea because it was not based on the defendant’s state of mind. In R v Reid [1992] 3 All ER 673, Lord Keith observed by way of response that: ‘Absence of something from a person’s state of mind is as much part of his state of mind as is its presence. Inadvertence to risk is no less a subjective state of mind than is disregard of a recognized risk.’ What he meant by this was that even with ‘Caldwell recklessness’, the court had to consider the defendant’s state of mind. But, it is submitted, this is a piece of judicial sophistry, as all that was required was for the court to examine the defendant’s state of mind and, on fi  nding ‘no thought’, conclude that he had been reckless provided the risk would have been obvious to the reasonable prudent bystander. Whilst many might have applauded Lord Diplock’s efforts to penalize thoughtless-ness in terms of a social policy initiative, the real question was whether he was right to The elements of a crime: actus reus and mens rea pursue this via a radical judicial reinterpretation of the term ‘recklessness’. It is significant that Parliament intervened shortly after Caldwell to reform the offence of reckless driving (and therefore causing death by reckless driving) by replacing it with the offence of dangerous driving—see the Road Traffic Act 1991. The effect of this was to make clear that the offence could now be committed without any form of mens rea that required reference to the defendant’s state of mind. Recklessness was replaced, as a fault element, by the term ‘dangerous’. Whilst it could and was argued that recklessness implied some conscious risk-taking by the accused, there was no doubt that ‘dangerousness’ as a fault element rested entirely upon an objective assessment of the defendant’s conduct. In other words a defendant could drive dangerously because he had a badly secured load on the back of his trailer—there was no need for him to be aware of this. In summary this suggests that Parliament liked the idea of criminal liability based on failure to think about risk, but was not comfortable with the idea that ‘traditional’ mens rea terms like ‘recklessness’ might be used to describe it. As far as recklessness is concerned the subjectivist argument has found favour again, as evidenced by the House of Lords’ decision in R v G [2003] 4 All ER 765, where it was held that a defendant could not be properly convicted under s. 1 of the Criminal Damage Act 1971 on the basis that he was reckless as to whether property was destroyed or damaged when he gave no thought to the risk and, by reason of his age and/or personal characteristics, the risk would not have been obvious to him, even if he had thought about it. Lord Bingham observed that recklessness should at least require a knowing disregard of an appreciated and unacceptable risk of, or a deliberate closing of the mind to, such risk. In his view it was not clearly blameworthy to do something involving a risk of injury to another if one genuinely did not perceive the risk. R v G reflects a general judicial trend in favour of subjectivity, as evidenced in decisions such as B v DPP [2000] 1 All ER 833. Indeed, the high watermark of this approach to fault was the House of Lords’ decision in DPP v Morgan [1976] AC 182, where it was held that if a defendant made a genuine mistake of fact—such as wrongly believing that a woman was consenting to sexual intercourse, he had to be judged on the facts as he believed them to be, not as the reasonable person would have believed them to be. Lord Hailsham made it clear that there was no room either for a ‘defense’ of honest belief or mistake, or of a defence of honest and reasonable belief or mistake. The reasonableness of the defendant’s honest belief was simply a factor relating to its credibility. The mental element in the offence of rape has now been modifi  ed by the Sexual Offences Act 2003, so that rape is effectively now an offence with a fault element based on negligence. The rationale of DPP v Morgan survives, however, at common law to the extent that a defendant should normally be judged on the facts as he honestly believes them to be.

As has been noted above in the case of dangerous driving, fault elements that do not require reference to the defendant’s state of mind are used. At common law this can be seen in the offence of killing by gross negligence. In R v Adomako [1994] 3 WLR 288, Lord Mackay LC explained that liability would be established if the prosecution could prove that the defendant’s conduct departed from the proper standard of care incumbent The elements of a crime: actus reus and mens rea

Commentary

This is an unusual question which has caused students diffi  culties, with many writing about the offence of criminal damage. This is a mistake as the question requires a detailed analysis of the mens rea requirement of the Ancient Book Act 2009, and in particular analysis of the concept of strict liability. In a survey by Justice referred to in an article by A. Ashworth and M. Blake, ‘The Presumption of Innocence in English Criminal Law’ [1996] Crim LR 306, it is estimated that in over one half of criminal offences either strict liability is imposed, or the prosecution have the benefit of a presumption. It is obviously an important topic, and popular with examiners! A good answer will require a detailed consideration of the possibility of this offence being one of strict liability and the effect of this. Candidates should also consider the position if the courts decide that intention or recklessness is the appropriate mental state. upon him, thereby creating a risk of death, and involved such a departure from accept-able standards of care as to deserve the stigma of criminalization. As was made clear in Attorney-General’s Reference (No. 2 of 1999) [2000] 3 All ER 182, evidence of the defendant’s state of mind might be useful in guiding a jury as to whether or not the negligence was gross, but this fault element can be made out without any direct evidence as to the defendant’s state of mind. Whilst this may seem to run counter to the trend in favors of subjectivity it should be remembered that it serves a useful social purpose in making it easier to impose criminal liability on companies that kill. In summary, therefore, it is undoubtedly true to say that mens rea normally does involve an examination of the defendant’s state of mind to ascertain a degree of awareness of the consequences of his actions. The law will, however, allow departures from this where the social utility of doing so outweighs the need to ensure the fairness to the defendant that ensues from adopting a subjective approach to fault.