Criminal Law Project Final

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NATIONAL LAW UNIVERSITY ODISHA

CRIMINAL LAW I PROJECT

ON

SUBJECTIVE AND OBJECTIVE ELEMENTS OF CRIME

PROJECT WORK SEMESTER – IV B.A. LL.B.

UNDER THE GUIDANCE OF:

MRS. SUMAN DASH BHATTAMISHRA

ASSISTANT PROFESSOR OF LAW

NATIONAL LAW UNIVERSITY ODISHA

SUBMITTED BY:

NAKUL KUMAR BAJPAI

2013/B.A. LL.B./028


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TABLE OF CONTENTS

1. RESEARCH HYPOTHESIS ............................................................................................... 5

2. INTRODUCTION: CONCEPT OF CRIME ..................................................................... 6

3. DEFINITIONS OF CRIME ................................................................................................. 8

4. SUBJECTIVE AND OBJECTIVE ELEMENTS OF CRIME ....................................... 10

Actus Reus: Objective Element of Crime ................................................................................. 10

Voluntary Conduct ................................................................................................................ 11

Types of Actus Reus ............................................................................................................. 12

Action crimes .................................................................................................................... 12

Result Crimes .................................................................................................................... 12

Conduct Crimes ................................................................................................................ 12

Actus Reus includes Circumstances ................................................................................. 13

A state of affairs as an actus reus ...................................................................................... 14

Doctrine of causation ............................................................................................................ 14

Omissions .............................................................................................................................. 16

By Statutes ........................................................................................................................ 17

By virtue of relationship between persons ........................................................................ 17

By virtue of contractual relationships ............................................................................... 17

By virtue of Voluntary Undertakings ............................................................................... 18

By virtue of creating a dangerous situation ...................................................................... 18

Mens rea .................................................................................................................................... 19

Intention ................................................................................................................................ 19

Recklessness ......................................................................................................................... 21

5. COINCIDENCE OF ACTUS REUS AND MENS REA ................................................. 21

6. MENS REA AND MOTIVE .............................................................................................. 22

7. CONCLUSION ................................................................................................................... 23


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TABLE OF AUTHORITIES

CASES

KING EMPEROR V SREE NARAYAN & ORS, AIR 1949 ORI 48 -------------------------------- 14

R V BRADY [2006] ALL ER (D) 239. -------------------------------------------------------------------- 9

R V CUNNINGHAM, [1957] 2 QB 396. ----------------------------------------------------------------- 19

R V G AND ANOTHER, [2003] UKHL 50. ------------------------------------------------------------- 19

R V GIBBINS AND PROCTOR (1918) 13 CAR 134. ------------------------------------------------- 15

R V INSTAN (1893) 1 QB 450. --------------------------------------------------------------------------- 16

R V LARSONNEUR [1933], 24 CR APP REP 74. ------------------------------------------------------ 9

R V LE BRUN [1991] 4 ALL ER 673 -------------------------------------------------------------------- 13

R V PITTWOOD(1902) 19 TLR 37. ---------------------------------------------------------------------- 15

R V WOOLLIN AC 82 HOUSE OF LORDS. ----------------------------------------------------------- 17

SECRETARY OF STATE FOR TRADE V MARKUS [1976] AC 35. ----------------------------- 10

STEANE 1947 KB 997. ------------------------------------------------------------------------------------- 18

THABO MELI V R [1954] 1 ALL ER 373, PRIVY COUNCIL ------------------------------------- 13

TREACY V DPP [1971] AC 537 AT 560. --------------------------------------------------------------- 10

WOOLMINGTON V DPP [1935] AC 462 HL(E). ------------------------------------------------------ 8

STATUTES

§ 28, TOWN POLICE CLAUSES ACT 1847. ---------------------------------------------------------- 10

ILLUSTRATION (B), §299, INDIAN PENAL CODE, 1860. ---------------------------------------- 12

OTHER AUTHORITIES

BLACK'S LAW DICTIONARY, 5TH ED. ----------------------------------------------------------------------- 13

CORPUS AT 16. ------------------------------------------------------------------------------------------------- 6

GORDON, 61. -------------------------------------------------------------------------------------------------- 10

HALBSBURY’S LAWS OF ENGLAND, 3RD ED, P. 271. ------------------------------------------------------ 7

HARDEN [1963] 1 QB 8. ------------------------------------------------------------------------------------- 11

KENNY, OUTLINES, 17. --------------------------------------------------------------------------------------- 10


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SIR WILLIAM BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND, VOL. 4, 17TH ED, 1830, P.

5. -------------------------------------------------------------------------------------------------------------- 6

SMITH (WALLACE DUNCAN) (NO. 4) [2004] QB 1418). ------------------------------------------------- 11

ARTICLES

WILLIAMS, “THE DEFINITION OF CRIME” (1955) CURRENT LEGAL PROBLEMS 107. 4,

6

BOOKS

CATHERINE ELLIOTT & FRANCES QUINN, CRIMINAL LAW, 9TH ED --------------------- 8

JEREMY HORDER & ANDREW ASHWORTH, PRINCIPLES OF CRIMINAL LAW 103 (7TH

ED. 2013). -------------------------------------------------------------------------------------------------- 13

JOHN GILLIN, CRIMINOLOGY AND PENOLOGY, 3RD EDN, NEW YORK, P. 9. ---------- 6

MICHAEL AND ADLER, CRIMINAL LAW AND SOCIAL SCIENCE, 1933. ------------------ 7

PETER SEAGO, CRIMINAL LAW, 3RD ED. --------------------------------------------------------- 14

RUSSELL ON CRIME, JW CECIL TURNER (ED), VOL 1, 12TH ED----------------------------- 7

SELLIN T, CULTURE CONFLICT AND CRIME. PP. 32-33. --------------------------------------- 7

SMITH & HOGANS, CRIMINAL LAW, 13TH ED. ----------------------------------------------- 7, 11

STEVENS & SONS, LONDON, P.39. -------------------------------------------------------------------- 7

WA BONGER, INTRODUCTION TO CRIMINOLOGY. --------------------------------------------- 7


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1. RESEARCH HYPOTHESIS

Every criminal act requires four elements i.e. human being, actus reus, mens rea and injury. Actus

reus is Latin for wrongful act and Mens rea means guilty mind. For any crime to be complete these

two are the requisites. Sine qua non the two, the person could not be convicted. For conferring

punishment it must be proved beyond reasonable doubt.


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2. INTRODUCTION: CONCEPT OF CRIME

Crime and immorality are related to each other. In ancient groups these crimes emerges out of the

feeling that conduct that offended the immortal threatened the common security. Crime is a

dynamic concept, dependent upon the social development of a people that is upon the fundamental

interests and values dominating their common beliefs.

It is important to consider the question that crime is different from a civil wrong. It is the common

sense approach towards crime, as pointed out by Williams1 that there is something in a crime that

makes it different from a civil wrong. There is one serious issue because it is not the type of act

which can decide whether it is a tort or a crime as the same act can be both tort and crime. So it is

difficult to establish through physical consequences because it has to be same for same kind of act.

To understand the origins of criminal law four theories have been discussed regarding the origins

of criminal law. These theories are namely, civil wrong, social wrong, moral wrong and group

conflict theory.

1. The civil wrong theory which states that criminal law is originated from torts. According to this

theory, firstly the damaged parties claimed compensation to wrongs done to them and later some

of the wrongs came to be adjudged as being deterrent to society at large. Thus the group, and later

the state, took over the charge of the treatment in its own hands. This may be true for crimes like

deceit, defamation etc., but proves inadequate for crimes such as treason, sedition etc. that, from

the very beginning were regarded as wrongs against society.2

2. Social wrong theory established that criminal law emerged as a national process of integrated

society. Thus regulations are made by society to prevent the repetition of wrongs. This theory

failed to explain how criminal law developed over the course of time but this theory holds true for

serious offences like murder, dacoity, etc.

3. The moral wrong theory stated that criminal law is the crystallization of morals, traditions and

the like. Customs got an ethical foundation that continued over longs periods of time and its

violation came to receive hostile reaction from the society. Penal laws and punishments were

1 Williams, “The Definition of Crime” (1955) Current Legal Problems 107. 2 Ibid.


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framed against such acts. However, this theory failed to explain many economic crimes and other

social crimes like tax evasion but successfully explained conventional crimes against persons and

property.

4) The group conflict theory in which the rival groups were in conflict with each other out of which

the criminal law developed. Offences against the state and public at large were not explained by

this theory.


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3. DEFINITIONS OF CRIME

Though it is different to give a precise definition of crime, many scholars have, from time to time,

while focusing on one or the other dimension of a prohibited act, defined the term crime.

William Blackstone, in his book, Commentaries on the Laws of England, has defined Crime as,

“an act committed or omitted in violation of public law forbidding or commanding it.”3 However,

the term ‘public law’ has different accepted connotations. Austin perceived it to be identical with

constitutional law, while some other jurists equate it with positive law or ‘municipal law’. Each of

these interpretations has their own merits and demerits. Perhaps, visualizing these inadequacies,

Blackstone gave another definition, “a violation of the public rights and duties due to the whole

community considered as a community.”4 Sergeant Stephen, modified this definition to read, “A

crime is a violation of a right, considered in reference to the evil tendency of such violation as

regards the community at large.” Again, this definition is inadequate as the essential characteristic

of a crime is not the violation of a right, but the doing of prohibited acts (e.g. possession of

counterfeit coins).

Both Blackstone and Stephens have stressed on the harm or injury committed to the community at

large. Though this may be true for many crimes, not all crimes affect community at large. Also,

there may be acts that are illegal and cause harm to a large section of community, but still are not

considered crimes. E.g., the negligent management of a company’s affairs.5

John Gillin, has also defined crimes in terms of harm done to others. Crimes, he says, is “…an act

that has been shown to be actually harmful to society, or that is believed to be socially harmful by

a group of people that has the power to enforce its beliefs, and that places such act under the ban

of positive penalties.”6

3 Sir William Blackstone, Commentaries on the Laws of England, vol. 4, 17th ed, 1830, p. 5. 4 Ibid. 5 Corpus at 16. 6 John Gillin, Criminology and Penology, 3rd edn, New York, p. 9.


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Professor SW Keeton has stated that, “A crime today would seem to be any undesirable act, which

the state finds most convenient to correct by the institution of proceedings for the infliction of a

penalty, instead of leaving the remedy to the discretion of some injured person.”7

Any Act which is punished by state is crime was given by Professor Goodhart.

Crime is defined in Halsbury’s Laws of England as “an unlawful act or default which is an offence

against public and renders the person guilty of the act or default liable to legal punishment.”8

Other important and noteworthy definitions of crime are as follows. Crime is a serious anti-social

action to which the state reacts consciously by inflicting pain (either punishment or correctional

measures).9 Michael and Adler state that, “the most precise and least ambiguous definition of crime

is that it which defines it as a behavior which is prohibited by the criminal code.”10 Section 40 of

the IPC 1860 states that ‘an offence denotes a thing made punishable by the code.’ Russell, in his

classic work, On Crimes says that crime is the result of human conduct which the penal policy of

the state seeks to prevent.11

BA Wrotley combines moral and legal element and puts forth his definition as follows, “A crime

is an offence against the law, and is usually an offence against morality, against a man’s social

duty to his fellow members of society; it renders the offender liable to punishment.”12

Sellin, T. regards crime as a deviation from or breach of, a conduct norm. This deviation or breach

is punished by society by means of its sanction. But punishment is not only the criterion of value.

Religion, art, education and other sociological agencies also reveal value. According to this

definition, crime is an act in violation of the law and the criminal is a person who does an act in

violation of the law.13

7 Smith & Hogans, Criminal Law, 13th ed. 8 Halbsbury’s Laws of England, 3rd ed, p. 271. 9 WA Bonger, Introduction to Criminology. 10 Michael and Adler, Criminal Law and Social Science, 1933. 11 Russell on Crime, JW Cecil Turner (ed), vol 1, 12th ed, Stevens & Sons, London, p.39. 12 Ibid. 13 Sellin T, Culture Conflict and Crime. pp. 32-33.


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4. SUBJECTIVE AND OBJECTIVE ELEMENTS OF CRIME

A person cannot usually be held guilty of a criminal offence except two elements are present: an

actus reus, which means a guilty act; and mens rea, which is Latin for guilty mind. Both of these

elements have very specific meaning and they actually refer to more than just moral guilt which

varies according to the crime, but the vital thing to remember is that to be guilty of an offence, an

accused must not only have behaved in a particular way i.e. actus reus, but must also usually have

had a specific mental approach to that behavior i.e. the mens rea. A small group of offences known

as crimes of strict liability is exception to this rule. The definition of a particular crime, either in

statute or under common law, will contain the required actus reus and mens rea for the offence.

The prosecution has to prove both of these elements so that the magistrates or jury are satisfied

beyond reasonable doubt of their existence, If this is not done, the person will be acquitted, as in

English law all persons are presumed innocent until proven guilty.14

ACTUS REUS: OBJECTIVE ELEMENT OF CRIME

Actus Reus comprises of all the elements of crime except the mental element i.e. Mens Rea. An

actus reus can consist of more than just an act which means that it comprises of all the elements of

the offence other than the mens rea of the defendant. It depends on the offence which may include

the circumstances in which it was committed, and/or the consequences of what was done. For

example, the crime of rape requires unlawful sexual intercourse by a man with a person without

their consent. The lack of consent is a surrounding circumstance which exists independently of the

accused’s act. Similarly, the same act may be part of the actus reus of different crimes, depending

on its consequences. Stabbing someone, for example, may form the actus reus of murder if the

victim dies, or of causing grievous bodily harm (GBH) if the victim survives; the accused’s

behaviour is the same in both cases, but the consequences of it dictate whether the actus reus of

murder or GBH has been committed.15

14 Woolmington v DPP [1935] AC 462 HL(E). 15 Catherine Elliott & Frances Quinn, Criminal Law, 9th ed.


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VOLUNTARY CONDUCT

If the accused is to be held liable of a crime, his or her behavior must be voluntary in committing

the actus reus. Where the accused was not in control of his or her own body (when the defense of

insanity or automatism may be available) or where there is extremely strong pressure from

someone else, such as a threat that the accused will be killed if he or she does not commit a

particular offence (when the defense of duress may be available). In such cases the behavior is said

to be involuntary.

Some accidents may be viewed by the court as amounting to involuntary conduct that does not

give rise to criminal liability. However, in R v Brady16 the Court of Appeal considered the case

where a young man had drunk heavily and taken drugs and then sat on a low railing on a balcony

that overlooked a dance floor. He lost his balance and fell, breaking the neck of a dancer below

who was subsequently wheelchair-bound. While the fall was a tragic accident the Court of Appeal

pointed to his earlier voluntary conduct of becoming heavily intoxicated and sitting precariously

on the railing and considered that this voluntary conduct was sufficient to be treated as having

caused the injuries.17

In a much criticized decision of R v Larsonneur,18 a Frenchwoman was arrested as an illegal

immigrant by the authorities in Ireland and brought back to the UK in custody, where she was

charged with being an alien illegally in the UK and convicted. This is not what most of us would

describe as acting voluntarily, but it apparently fitted the courts’ definition at the time. It is

probably stricter than a decision would be today, but it is important to realize that the courts do

define ‘involuntary’ quite narrowly at times.19

16 R v Brady [2006] All ER (D) 239. 17 Ibid. 18 R v Larsonneur [1933], 24 Cr App Rep 74. 19 Ibid.


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TYPES OF ACTUS REUS

ACTION CRIMES

The actus reus in action crimes is simply an act, the consequences of which are immaterial. For

example, perjury is committed whenever someone makes a statement which they do not believe to

be true while on oath. Whether or not that statement makes a difference to the trial is not important

to whether the offence of perjury has been committed.

RESULT CRIMES

There are many examples of result crimes some of which are Manslaughter, Murder, wounding

etc. In this type of crime many authors argue that it is not based on conduct but only on result of

crime.20 In short the law features only on the result and not on the conduct which causes result.

Therefore actus reus can be defined as the result of such conduct which law seeks to prevent.21 But

stabbing a person is the actus reus and not the dead person with a knife at his back. The law is no

less interested in the conduct that brings about the result in a ‘result crime’ than in a ‘conduct

crime’.22

CONDUCT CRIMES

The arrangement of offences into ‘conduct crimes’ and ‘result crimes’ may occasionally seem

awkward and futile. Nevertheless, it is always essential to identify the fundamental elements of an

offence, and use of this classification sometimes highlights key changes between offences. Thus,

the offence of indecent exposure formerly contained within the Town Police Clauses Act 1847, S.

28, was a result crime, because it required proof that D’s conduct caused residents or ‘passengers’

to be ‘annoyed, obstructed or endangered’.23 In contrast, the offence of genital exposure created

by the SOA 2003, S. 66, is a conduct crime, because it requires proof only that D exposed himself

and intended this to cause alarm or distress.24 Nobody need actually have suffered alarm or distress.

In theory, nobody need even have seen the offending act.

20 Gordon, 61. 21 Kenny, Outlines, 17. 22 Lord Diplock in Treacy v DPP [1971] AC 537 at 560. 23 § 28, Town Police Clauses Act 1847. 24 Secretary of State for Trade v Markus [1976] AC 35.


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The arrangement of offences into ‘conduct crimes’ and ‘result crimes’ can be a somewhat crude

process, and may not always be particularly helpful. Rape, for example, does not really lend itself

to analysis in such terms. Nevertheless, it is always necessary to identify the constituent elements

of an offence, and the classification can sometimes highlight essential differences between two

alternative charges.25 Thus, the Vagrancy Act 1824, S. 4, creates an offence of indecent exposure

‘with intent to insult a female’, but does not require that any female should either see the exposure

or feel insulted by it. It accordingly creates a conduct crime, which may be contrasted with the

offence created by the Town Police Clauses Act 1847, S. 28, under which the prosecution must

prove that D’s indecent exposure caused someone to be ‘annoyed, obstructed or endangered’.26

The distinction between conduct crimes and result crimes may also be important in determining

jurisdiction over cross-frontier offences.27 The general rule is that jurisdiction over a conduct crime

depends on proof that some part of the relevant conduct occurred within England or Wales,

whereas jurisdiction over a result crime ordinarily depends on at least some part of the proscribed

result taking place there.28 If so, jurisdiction may arise where any element of the offence occurs

within England or Wales.

ACTUS REUS INCLUDES CIRCUMSTANCES

The actus reus comprises of conduct and in cases, of its consequences, and also of the

circumstances in which the conduct happens. If circumstances are included in the definition of the

crime then they are relevant like consequences. For example, theft needs that there should be

dishonest appropriation of property belonging to another. If no one has the ownership of property

then it is not theft as it will not constitute actus reus. In this case an essential element of crime is

missing no matter it was dishonestly appropriated. In child sex offences, the conduct of sexual

touching, etc. must be committed in the prescribed circumstance of the child being under a

specified age (13 or 16 depending on the charge). In burglary, D’s conduct of entering a building

must be in prescribed circumstances: as a trespasser; and so on.29

25 Supra at 15. 26 Harden [1963] 1 QB 8. 27 Ibid. 28 Smith (Wallace Duncan) (No. 4) [2004] QB 1418). 29 Supra at 7.


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A STATE OF AFFAIRS AS AN ACTUS REUS

A crime may be committed although there is no “act” in the normal sense instead there may be a

specified state of affairs which is deemed sufficient. A "state of affairs" refers to the circumstances

at a particular place and time which are to be distinguished from an act which is doing something,

such as stabbing somebody or taking property and an omission which is not doing something, such

as failing to take care of your child.30 For example in the case of R v Larsonneur31, In this case,

the Defendant was convicted under the Aliens Order Act1920 of “being an alien to whom leave to

land in the UK has been refused”. The defendant was found in the UK after she had been brought

from Ireland to the UK against her will in the custody of the police. Note, notwithstanding the fact

that the accused was brought to the UK against her will, she was still convicted of the crime as she

was found in the UK after she was strictly prohibited from being there. The state of affairs in this

instance was constituted when Ms.Larsonneur was “found in the UK”.32

DOCTRINE OF CAUSATION

The doctrine of causation is based on the simple premise that ‘a man can only be held liable for

the consequence of his own actions’. The entire doctrine is effectively based on the interpretation

of a single word: ‘consequence’. A liberal definition of the word consequence extends not to only

direct acts of a person but also to the acts done through innocent agents like cases of duress, or use

of infants or insane people to commit crime. This principle of causation is best illustrated by

Illustration (b) under section 299 of the Indian Penal Code, 1860 (“IPC”): “A knows Z to be behind

a bush. B does not know it. A, intending to cause or knowing it to be likely to cause Z’s death,

induces B to fire at the bush. B fires and kills Z. Here B may be guilty of no offence, but A has

committed the offence of culpable homicide.”33 Due to this broad and liberal nature of the doctrine

of causation, it often overlaps with actus reus and mens rea, and deals with cases of the coincidence

of the mens rea and the actus reus and the doctrine of transferred malice. In other words, as in the

30 R v Larsonneur (1933) 24 Cr App Rep 74. 31 Ibid. 32 Ibid. 33 Illustration (b), §299, Indian Penal Code, 1860.


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aforementioned illustration, causation is also used to establish the link between the mens rea and

the final actus reus.34

According to the 5th edition of Black's Law Dictionary35, “cause of an injury is the primary or

moving cause, or that which in a natural and continuous sequence, unbroken by any efficient

intervening cause, produces the injury and without which the accident could not have happened

[Causa sine qua non], if the injury be one which might be reasonably anticipated or foreseen as a

natural consequence of the wrongful act.”

The causation must therefore be a sequence of reasonable anticipated or foreseeable natural

consequence from the first link to the consequence in the form of an unbroken chain. A person can

be held responsible for all the consequences of his act that can be reasonably expected from the

same. This test of ‘reasonable expectation’ is an exclusionary test36, that is, each consequence has

to be ruled out based on the individual circumstances. In a complete chain of causation, every link

is a direct and reasonably expected consequence of the previous link. For example, A fires a bullet

at a very close range with the intention to kill B. The initial act of A i.e. pulling the trigger is the

first link of the chain of causation. As a result of pulling the trigger (Link 1), the bullet leaves gun

(Link 2) and hits B’s heart (Link 3). The walls of the heart collapse (Link 4) and B’s heart stops

pumping blood to the brain (Link 5) leading to B’s death (Result). The chain of causation here is

complete for it was a natural unbroken sequence. Pulling the trigger by A was therefore the cause

of the final result, actus reus, the death of B.

In R v Le Brun37, a man punched his wife and she fell down unconscious. While attempting to lift

and drag his wife, she slipped from his grasp leading to a fracture to her skull and subsequent

death. The man was convicted for manslaughter. In this appeal, the court discussed the remoteness

between the initial blow and the resultant death, that is, from the first link to the final result. Despite

the absence of the mens rea to kill his wife, the court held the original unlawful act was a causa

sine qua non for the resultant death of his wife and since the actions of the husband were self-

serving, the chain of causation remains unbroken. The court upheld the conviction. A similar

34 Ibid. 35 Black's Law Dictionary, 5th ed. 36 Jeremy Horder & Andrew Ashworth, Principles of Criminal Law 103 (7th ed. 2013). 37 R v Le Brun [1991] 4 All ER 673; See also, Thabo Meli v R [1954] 1 All ER 373, Privy Council.


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Indian case is King Emperor v Sree Narayan & Ors,38 where the accused after a quarrel with the

victim knocks her unconscious. Believing the victim to be dead, he later burns her “body”, killing

the victim.

In the aforementioned cases, the accused is convicted despite the lack of mens rea and the absence

of a direct act resulting into death. The doctrine of causation thus cannot be completely separated

from other elements of crime and encroaches upon the domain of both actus reus and mens rea.

However, analyzing the doctrine of causation as broad phenomenon overlapping with mens rea

and actus reus yields no information regarding about the characteristics of the doctrine and is

beyond scope of this paper.39 Therefore, we must limit the definition of causation to simply

analyzing the consequence as ‘a chain starting from the initial act to the final consequence, actus

reus' Simply put, a person is liable for all consequences of his act as long as the chain of causation

remains unbroken.40

There are cases where the chain of causation may not be complete. This can happen due to an

external act, Novus Actus Interveniens, or the chain may just cease to exist. An example of the

latter is the case where X fires a bullet at Y, but the bullet misses Y. Eventually, Y dies due to old

age, here the chain of causation ceases to exist after the bullet missed Y and therefore X cannot be

held liable for the death of Y. Therefore, in applying the doctrine of causation, first a chain of

causation has to be established and then the continuity of the chain is ensured.

OMISSIONS

As a general rule of law, there is no obligation on the part of any person to act to prevent

the. Citizens are generally not required to be their brother’s keeper. For example: If a pedestrian

consequently dies, and a bystander could have prevented this by reaching out and pulling the

pedestrian from the road but chooses not to, notwithstanding how inhumane, or morally

reprehensible this may be considered, no criminal proceedings can generally ensue from the

bystander’s omission to act. However an omission may give rise to criminal responsibility in

certain circumstances; these circumstances largely being:(i) Where statute either expressly or

38 King Emperor v Sree Narayan & Ors, AIR 1949 Ori 48. 39 Supra at 20. 40 Peter Seago, Criminal Law, 3rd ed.


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impliedly imposes liability for a failure to act and ;(ii)where a person is under duty to act arising

at common law or under statute by virtue of the following:

(a) The relationship between persons, certain persons are liable to act;

(b) Contractual relations;

(c) Voluntarily assuming responsibility for another person’s care;

(d) Creating a dangerous situation. These examples are the more common examples and are not

meant to be exhaustive as once it can be proven that a person had a duty to act, then such person

is under a legal obligation to do so.

BY STATUTES

Many statutes also make omissions criminal; failure to providespecimen of breath for a breath test,

failure to report an accident within a prescribed period etc.

BY VIRTUE OF RELATIONSHIP BETWEEN PERSONS

As noted in the Text, Criminal Law by Peter Seago (3rd Edition), certain persons are liable to act

because of their status. For example: sea captains are under a duty to take reasonable steps to

protect the lives of their passengers and crew. Parents are under an obligation to look after the

welfare of their children and guardians their wards. For example: The same principle was followed

in R v Gibbins and Proctor41.

BY VIRTUE OF CONTRACTUAL RELATIONSHIPS

It is possible to bring oneself under a duty to act by virtue of contractual obligations. For example:

If a person is employed by the National Works Agency to ensure that all roads in the New Kingston

area are in good and proper order and by failing to properly perform his duties a road caves in and

a person driving on that road dies, that person may be liable for the death of the driver, for even

though his contract exists with the National Works Agency, he is under a duty of care to all users

of the road who are not necessarily signatories to the contract. In R v Pittwood42 the court held that

contractual undertaking was sufficient

41 R v Gibbins and Proctor (1918) 13 CAR 134. 42 R v Pittwood(1902) 19 TLR 37.


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In that case the accused, who was under a contractual obligation to look after a railway level

crossing, negligently left his post with the gates in such a position as to suggest to road users that

no trains were coming. As a result a man was killed when his cart, which was crossing the railway

lines, was struck by a train.

The accused was charged with causing the death of the deceased bygross negligence. He argued

that he owed no duty of care to the users of the crossing, but rather that his contract was with the

railway company and as such his contractual obligations lay solely with the railway

company. The Court held however that this contractual undertaking was sufficient to place him

under a duty to the road users and as such the prosecution was able to establish the actus reus.

BY VIRTUE OF VOLUNTARY UNDERTAKINGS

A person may undertake to be his brother’s keeper. Where a person voluntarily assumes

responsibility for another’s care and then simply fails to fulfill that undertaking, he or she may

occasioned. There is no need to prove a legal obligation to undertake the duty orthat is obliged b

y contract, it is sufficient if the defendant hasvoluntarily and gratuitously undertaken the care of

another. The same principle was followed in the case of R v Instan43.

BY VIRTUE OF CREATING A DANGEROUS SITUATION

Where a person has created a dangerous situation, he is deemed to be under a duty to take

reasonable steps to avert that danger. If for example a person saw two persons trapped in a burning

car, he would be under no duty to try to assist them, if however he was the person who was smoking

next to the car as it was being filled with gasoline and as a result it exploded into flames, he may

be thought to be under a duty to act.

43 R v Instan (1893) 1 QB 450.


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MENS REA

Mens rea is the Latin for ‘guilty mind’ and traditionally refers to the state of mind of the person

committing the crime. The required mens rea varies depending on the offence, but there are two

main states of mind which separately or together can constitute the necessary mens rea of a

criminal offence: intention and recklessness. When discussing mens rea, we often refer to the

difference between subjective and objective tests. Put simply, a subjective test involves looking at

what the actual defendant was thinking (or, in practice, what the judge or jury believe the defendant

was thinking), whereas an objective test considers what a reasonable person would have thought

in the defendant’s position. The courts today are showing a strong preference for subjective tests

for mens rea.

INTENTION

Intention is a subjective concept: a court is concerned purely with what the particular defendant

was intending at the time of the offence, and not what a reasonable person would have intended in

the same circumstances.

To help comprehension of the legal meaning of intention, the concept can be divided into two:

direct intention and indirect intention. Where the consequence of an intention is actually desired,

it is called direct intent – where, for example, Ann shoots at Ben because Ann wants to kill Ben.

However, a jury is also entitled to find intention where a defendant did not desire a result, but it is

a virtually certain consequence of the act, and the accused realizes this and goes ahead anyway.

This is called indirect intention (or sometimes oblique intention). An example might be where Ann

throws a rock at Ben through a closed window, hoping to hit Ben on the head with it. Ann may not

actively want the window to smash, but knows that it will happen. Therefore, when Ann throws

the rock Ann intends to break the window as well as to hit Ben. It should be noted that Lord Steyn

suggested obiter, in the House of Lords judgment of R v Woollin44 (1998), that ‘intention’ did not

necessarily have precisely the same meaning in every context in the criminal law. He suggested

that for some offences nothing less than purpose (direct intention) would be sufficient. He gave a

44 R v Woollin AC 82 House of Lords.


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possible example as the case of Steane45 (1947) which concerned the offence of assisting the

enemy with intent to do so. Steane had given a broadcast for the Nazis in order to save his family

from being sent to concentration camps. The accused did not desire to help the Nazis and was

found to be not guilty of the offence.

45 Steane 1947 KB 997.


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RECKLESSNESS

In everyday language, recklessness means taking an unjustified risk. Its legal definition has

radically changed in recent years. It is now clear that it is a subjective form of mens rea, so the

focus is on what the defendant was thinking.

A subjective test:

Following the House of Lords judgment of R v G and another46, recklessness will always be

interpreted as requiring a subjective test. In this case, the House favoured the definition of

recklessness provided by the Law Commission’s Draft Criminal Code Bill in 1989 under which a

person acts recklessly with respect to –

(i) a circumstance when he is aware of a risk that it exists or will exist;

(ii) a result when he is aware of a risk that it will occur;

and it is, in the circumstances known to him, unreasonable to take the risk. Defendants must always

be aware of the risk in order to satisfy this test of recklessness. In addition, their conduct must have

been unreasonable. It would appear that any level of awareness of a risk will be sufficient, provided

the court finds the risk taking unreasonable. Until the case of R v G and another47, the leading case

on subjective recklessness was R v Cunningham48. In R v Cunningham49, the defendant broke a

gas meter to steal the money in it, and the gas seeped out into the house next door. Cunningham’s

prospective other-in-law was sleeping there, and became so ill that her life was endangered.

Cunningham was charged under s.23 of the Offences against the Person Act 1861 with

‘maliciously administering a noxious thing so as to endanger life’.

5. COINCIDENCE OF ACTUS REUS AND MENS REA

The mens rea of an offence must be present at the time the actus reus is committed. So if, for

example, Ann intends to kill Ben on Friday night, but for some reason fails to do so, then quite

accidentally runs Ben over on Saturday morning, Ann will not be liable for Ben’s murder.

However, there are two ways in which the courts have introduced flexibility into this area:

46 R v G and another, [2003] UKHL 50. 47 Ibid. 48 R v Cunningham, [1957] 2 QB 396. 49 Ibid.


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continuing acts, which are described on p. 16, and the interpretation of a continuous series of acts

as a single transaction. An example of the latter occurred in Thabo Meli v R (1954). The defendants

had attempted to kill their victim by beating him over the head, then threw what they assumed was

a dead body over a cliff. The victim did die, but from the fall and exposure, and not from the

beating. Thus there was an argument that at the time of the actus reus the defendants no longer had

the mens rea. The Privy Council held that throwing him over the cliff was part of one series of acts

following through a preconceived plan of action, which therefore could not be seen as separate

acts at all, but as a single transaction. The defendants had the required mens rea when that

transaction began, and therefore mens rea and actus reus had coincided. Another example of the

single transaction doctrine is the case of R v Le Brun (1992).50 The defendant had punched his wife

on the jaw, knocking her unconscious. He then tried to carry her from the garden into the house.

As he attempted to carry her, he dropped her, fracturing her skull and it was this injury which

caused her death. The defendant had the mens rea for manslaughter but he did not commit the

actus reus until the later time when he dropped his wife. The Court of Appeal applied the single

transaction doctrine and Le Brun’s conviction for manslaughter was upheld. It noted, however,

that the doctrine of a single transaction would not have applied if the defendant had been trying

to help his wife when he subsequently dropped her.51

6. MENS REA AND MOTIVE

It is essential to realize that mens rea has nothing to do with motive. To illustrate this, take the

example of a man who suffocates his wife with a pillow, intending to kill her because she is

afflicted with a terminal disease which causes her terrible and constant pain. Many people would

say that this man’s motive is not a bad one – in fact many people would reject the label ‘murder’

for what he has done. But there is no doubt that he has the necessary mens rea for murder, because

he intends to kill his wife, even if he does not want to do so. He may not have a guilty mind in the

everyday sense, but he does have mens rea. Motive may be relevant when the decision is made on

whether or not to prosecute, or later for sentencing, but it makes no difference with regard to legal

liability.

50 Supra at 37. 51 Ibid.


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7. CONCLUSION

Thus actus reus and mens rea are the two most important element in crime and any court could

punish a person only if he is found to perform certain act with the guilty mind. If the act was

performed without guilty mind then the person would not be convicted. The coincidence of actus

reus and mens rea is necessary for conviction of an accused.

The law declares tests to be used to determine the substantive nature of crime as if any of the

elements of crime are missing or their presence and working is not proved beyond reasonable

doubt, the whole trial would fall. Similarly the law cannot be made strict as the freedom of innocent

needs to be preserved.

In common law the accused is presumed innocent until proven guilty beyond reasonable doubt.

For a person to be convicted, both the objective and the subjective test are used by the Indian

courts. Decisions are given both on direct as well as circumstantial evidence.

The elements of crime are the best way to sentence a person as it gives substantive realty of the

situation and the accused and at the same time helps law in not making mistakes or misjudging a

person by pronouncing him guilty only at the stage of preparation or incarcerating an innocent.

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Criminal Law Project Final

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