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Question 1

Explain the meaning of the terms actus reus and mens rea in criminal law

Actus reus and mens rea are the basic foundations of criminal law. In this first part of the

question we are going to study the meaning of the statement “actus non facit reum nisi mens sit

rea”. This statement simply means that “an act is not enough to make a person guilty unless his

mind is guilty too”. We will study the statement in two parts; “actus reus” and “mens rea”. Actus

reus simply means guilty action, while mens rea means guilty mind. For a person to be convicted

of a criminal offence, the two have to be clearly proven1. The guilty mind is the difficult part to

prove in any criminal case. An act can be completed but the liability fails to fall on the defendant

if he can disapprove mens rea through a very good defence or a reasonable mistake.

The difficulty of proving mens rea lies in the fact that you have to draw conclusions from

the behavior of the defendant before, during, and after the event occurred. This is because

nobody has the power to read minds. Failing to prove one of the two in a criminal case makes

such a huge difference to the case. That is the only difference between murder and

manslaughter2. A person is convicted for murder if he kills and it is clearly proven that the act

was there and the intention to kill was present. However, if the act is present and the intention to

kill is not proven, then the case turns to manslaughter. A case of a murderer and that of

manslaughter have different sentences in court. However, there are several complications related

1 M. J Allen, Textbook On Criminal Law (Oxford University Press 2015). 2 Herbert Broom, A Selection Of Legal Maxims, Classified And Illustrated (Lawbook Exchange 2000).

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to the “guilty act” and “guilty mind” statement. These include the omission to act, legal

causation, intention and recklessness.

Omission to Act

Omission or failure to act basically carries no liabilities at all. A person can only be

criminally liable where they have actually performed a positive act3. For example, John might be

walking past a house that is on fire and Tom is trapped inside. John can save Tom just by placing

a ladder on the window where Tom is trapped. John ignores Tom’s cry for help and walks away.

John is not liable for Tom’s death. This rule has its own exceptions discussed below.

The first one is that of duty arising from a statute. A good example is the Children and

Young Persons Act of 1933 which makes omissions culpable by people over the age of 16 failing

to take care of those under 16. If a child is not provided with food and there was a person of over

16 years in the house then that is reason enough to convict the person over 16 years. The second

exemption comes in the case of duty arising from relationships of a special nature. R V Gibbins

and Proctor (1918) ruled that a man and his wife were guilty of murder by simply failing to feed

the man’s daughter. They were guilty because the woman hated the daughter and that was

enough to incriminate her. There is also the assumption of care. The statutory law states that

parents are no longer liable for their children after the age of 16 but common law in the case of R

v Chattaway (1922) imposed a duty of care upon parents where their child is over 16 as long as

he continues to live under their roof.

3 Casenote Legal Briefs (Aspen Law & Business 2002).

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Legal Causation

This is where conduct is linked to a result. We have factual causation that is conducted

using the “but-for” test and legal causation that uses the proximate cause rule4. A good example

we can say that if a mechanic did not build a car then manslaughter would not have happened. It

has been ruled in R v Cheshire (1991) that medical negligence amounts to a break in the chain of

causation, unless it was “so independent” of the defendants act or “so potent” in causing death.

Intention

This is the mens rea of all serious offences such as murder. There is direct intent and

oblique intent. The direct intent is easily linked to the defendants aim5. Oblique intent is where

the defendant did not anticipate the consequences of his actions, but they were certain to occur.

In R v Maloney (1985), the jury was asked to consider two questions: was murder or serious

injury a natural consequence of the defendants act? Did the defendant foresee that consequence

as being a natural consequence of their act? If the answer to both is yes, the crime was

intentional.

Recklessness

4 'Criminal Damage' (Inbrief.co.uk, 2016) <http://www.inbrief.co.uk/offences/criminal-damage.htm#> accessed 7 April 2016. 5 Casenote Legal Briefs (Aspen Law & Business 2002).

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According to R v Cunningham (1957), recklessness is foreseeing that a particular kind of

harm may be done, but going ahead to do it anyway6. However, according to R v Caldwell

(1981), recklessness was carrying out an activity that poses obvious risk while giving no thought

of the possible risk at hand but just go on to do it anyway.

Evaluate whether Lord Hailsham’s statement represents an accurate definition of all the

elements which should be proved by the prosecution in order to establish liability for a

criminal offence.

The defendant appealed against his conviction for handling stolen goods. The stolen

goods were to be delivered to him in a van, but they were intercepted and recovered by the

police. The defendant based his argument on the fact that he cannot be convicted of attempting

an impossible crime. This is because the stolen meat was no longer stolen as it was intercepted

by the police and returned to lawful custody7. The court of appeal agreed with the basis of his

argument and allowed it. The prosecutor tried to appeal but failed. According to section 22, the

goods had to be stolen or remain stolen at the time of the attempted handling. The prosecution

had already filed the charge of handling and it was not possible to change it into an offence by

naming it an attempted handling8. Acts that would propel another act which if committed would

not be an offence could not be an offence themselves.

6 'Defining The Mens Rea In Criminal Attempts – Part 1 | CL&J' (Criminallawandjustice.co.uk, 2016) <http://www.criminallawandjustice.co.uk/features/Defining-Mens-Rea-Criminal-Attempts-%E2%80%93-Part-1> accessed 7 April 2016. 7 Ronald Dworkin, Law's Empire (Belknap Press 1986). 8 'Haughton -V- Smith, On Appeal From Regina -V- Smith (Roger); HL 21 Nov 1973' (swarb.co.uk, 2015) <http://swarb.co.uk/haughton-v-smith-on-appeal-from-regina-v-smith-roger-hl-21-nov-1973-3/> accessed 7 April 2016.

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Lord Hailsham stated that an act does not make a man guilty of a crime, unless his mind

be guilty too. The offence of handling stolen goods is a criminal offence. This means that if

proved that there was a guilty act and guilty mind then you will be prosecuted in a criminal

court. Section 24 of the Theft Act 1968 defines stolen goods as any goods which have been

stolen, obtained by deception, or by blackmail. Under the Theft Act 1968, in order for the

offence of handling stolen goods to occur, the goods must remain stolen at the time of handling.

According to section 24 of the Theft Act, no good which has been stolen will be regarded as

stolen goods if any of the following events takes place.

The goods will not be stolen anymore once they have been restored to the person from

whom they were stolen. Secondly, the goods will not be stolen once in lawful custody9. They

will not be stolen once all the people who have a share in goods cease to claim restitution. Lord

Hailsham’s statement was very accurate since the defendant did not even touch the goods that

were stolen. They were already in lawful custody. There was no actus reus since the act of

handling the goods did not get a chance to happen. We cannot prove mens rea without the actual

action.

Question 2

Advise Anna as to her criminal liability for criminal damage, if any

Criminal damage can be defined as any damage caused to property by an individual. A

case against criminal damage is normally brought in a criminal court by the state against the

9 Thomas J Gardner and Terry M Anderson, Criminal Law (Thomson/Wadsworth 2009).

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individual who caused the damage10. The best example for a criminal damage case is arson.

When dealing with a criminal damage case, the Criminal Damage Act 1971 is the primary piece

of legislation. There are some offences considered to be criminal damage cases contained under

the Malicious Damage Act 1861. However, the main body of legislation is under the Criminal

Damage Act 1971.

According to the Criminal damage Act 1971, damage is defined as occurring when a

person who has no lawful excuse, damages or destroys any property belonging to another

intending to destroy or damage any such property or being reckless as to whether any such

property shall be damaged or destroyed shall be guilty of the offence. There are a few elements

that must be established and they are listed below. Damage, To property, Belonging to another,

That was damaged without lawful excuse, Intention to cause the damage or recklessness as to

whether the damage would be caused11.

The Criminal Damage Act of 1971 has no specific definition for damage. The definition

is therefore established on a case to case basis depending on the circumstances of the case at

hand. When thinking about damage, it is important to have some things in mind. First, it is not a

must that the damage be permanent. Damage can include smearing of mud or paint. Secondly, it

is not a must the damage be visible. Affecting the proper functioning of a property is considered

to be damage despite the fact that it cannot be seen.

Recklessness

10 Bryan A Garner, A Dictionary Of Modern Legal Usage (Oxford University Press 1995). 11 'Handling Stolen Goods: When Will I Face Prosecution?' (Inbrief.co.uk, 2016) <http://www.inbrief.co.uk/offences/handling-stolen-goods.htm#> accessed 7 April 2016.

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One of the major aspects of proving criminal damage is to prove beyond doubt that the

defendant acted in a reckless manner. Section 1 of the Criminal Damage Act 1971 defines

recklessness in the following ways; A person is considered to have acted recklessly based on a

circumstance when he is aware of a risk that will exist or will exist. He may also be considered to

have acted recklessly based on a result when he is aware of a risk that will occur12. These two are

used as the basis for recklessness especially when it is unreasonable to take the risk in the

circumstances known to the defendant. In such cases there is no point in separating intention and

recklessness. This is because recklessness is sufficient to prove the offence.

Property

Under section 10 of the Criminal Damage Act 1971, property is defined in a wider range

than under the Theft Act 1968 such that it includes land. This simply means that dumping of

waste onto another person’s land is taken as a criminal damage offence. Property will be said to

belong to any person who has custody or control of it. It can also be said to belong to any person

who has a propriety right or interest on the land13. Thirdly, it can be said to belong to any person

who has a charge on it. This means that an owner can be prosecuted for criminal damage if he

damages his own property if at the same time it belongs to someone else according to the above

definitions. A good example is a property such a house owned by an individual and at the same

time owned by the mortgage company.

12 Anand Ballabh Kafaltiya, Interpretation Of Statutes (Universal Law Pub Co 2008). 13 Alon Harel and Keith N Hylton, Research Handbook On The Economics Of Criminal Law (Edward Elgar 2012).

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According to section 5 of the Criminal damage Act 1971, there are circumstances under

which someone would damage property and have a lawful excuse to act as a defence against a

criminal damage charge14. A few are discussed below. First case is whereby at that time the

defendant believed that consent was given. Second excuse is when damage was caused during

protection of that persons own property15. If that property was in need of immediate protection

and that the protections means taken against that property were reasonable. Lastly, the damage

will be said to be without lawful excuse if it does not fall within section 5 of the Criminal

Damage Act 1971.

Section 2 of the Criminal Damage Act 1971 makes it an offence to destroy or damage

property intending thereby to endanger the life of another or being reckless as to whether the life

of another would thereby be endangered. Where it is not a simple case of criminal damage, the

judge separates it into two accounts to assist the jury and help the judge to know on what account

the jury was convinced16. Intention and recklessness are seen as one and the same thing when it

comes to damage committed to property. However, they are separated when it comes to whether

there was intention to endanger the life of another or not. This is mostly seen in cases dealing

with arson.

Section 2 of the Criminal Damage Act 1971 creates two offences of threatening to

destroy or damage property belonging to the person threatened or a third person or, the

defendants own property in a way which is likely to endanger the life of the person threatened or

14 Kristina Janjac and Dorina Andoni, The Mental Element. 15 Nicola Monaghan, Criminal Law. 16 Jonathan Herring, Criminal Law.

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a third person17. In both cases the defendant has to intend that the person threatened would fear

that the threat would be carried out.

In the case of Anna and Epi, Anna has a hard time to prove that there was no mens rea in

her actions. This is because in the beginning when she found the unflattering photo of Epi, she

said she was going to smash her digital memory card. She then went ahead and did it. This shows

that Anna was angry; she said she was going to destroy the digital memory card, then she did it a

few minutes later using a hammer. In this case, Anna is liable for criminal damage. This is

because there was the actus reus and the mens rea. This makes her liable for criminal damage.

Anna also smoked a cigarette in the studio after Epi left then threw it into the waste paper

bin. This can make her liable for a criminal charge of property damage. This is because a smoked

cigarette is not supposed to be thrown into the waste paper bin before it is put out. Otherwise it is

almost guaranteed that it will start a fire. Anna was aware of the risk involved when she threw

the cigarette into the bin. This makes it very difficult for her to prove that there was no mens rea

especially after smashing Epi’s digital memory card into pieces. Anna is likely to be liable for

recklessness since she had shown her anger by destroying the digital memory card and then

throwing the cigarette without thinking about the risk involved.

17 Kristina Janjac and Dorina Andoni, The Mental Element.

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Bibliography

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Broom H, A Selection Of Legal Maxims, Classified And Illustrated (Lawbook Exchange 2000)

Casenote Legal Briefs (Aspen Law & Business 2002)

'Criminal Damage' (Inbrief.co.uk, 2016) <http://www.inbrief.co.uk/offences/criminal-

damage.htm#> accessed 7 April 2016

'Defining The Mens Rea In Criminal Attempts – Part 1 | CL&J' (Criminallawandjustice.co.uk,

2016) <http://www.criminallawandjustice.co.uk/features/Defining-Mens-Rea-Criminal-

Attempts-%E2%80%93-Part-1> accessed 7 April 2016

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Garner B, A Dictionary Of Modern Legal Usage (Oxford University Press 1995)

'Handling Stolen Goods: When Will I Face Prosecution?' (Inbrief.co.uk, 2016)

<http://www.inbrief.co.uk/offences/handling-stolen-goods.htm#> accessed 7 April 2016

Harel A and Hylton K, Research Handbook On The Economics Of Criminal Law (Edward Elgar

2012)

'Haughton -V- Smith, On Appeal From Regina -V- Smith (Roger); HL 21 Nov 1973'

(swarb.co.uk, 2015) <http://swarb.co.uk/haughton-v-smith-on-appeal-from-regina-v-smith-

roger-hl-21-nov-1973-3/> accessed 7 April 2016

Herring J, Criminal Law

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Kafaltiya A, Interpretation Of Statutes (Universal Law Pub Co 2008)

Monaghan N, Criminal Law

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