The Principles of Criminal Liability
basis for imposing liability in criminal law is that the defendant must be
proved to have committed a guilty act whilst having had a guilty state of mind.
The guilty act is known as Actus Reus.
state of mind is known as Mens
It is the
fundamental duty of the prosecution to prove both actus reus and mens rea of
the offence to the satisfaction of the judge or jury beyond reasonable doubt.
In absence of such proof the defendant will be acquitted.
reus consists of more than just an act. It also consists of whatever circumstances
and consequences that are recognised for liability for the offence in question.
be divided into two categories. First, there are conduct
crimes where actus
reus is the prohibited conduct itself. For example, the actus reus of the
offence of dangerous driving is simply “driving a mechanically propelled vehicle
on a road or other public place” (section
2 of Road Traffic Act 1988). No harm or consequence of that dangerous driving need to be
type of crime is known as result
crime where actus
reus of the offence requires proof that the conduct caused a prohibited result
or consequence. For example, actus reus of the offence of criminal damage is that
property belonging to another person must be destroyed or damaged (section 1(1) of Criminal Damage Act
must be “voluntary” or “freely willed”. There are acts that can be involuntary
for a variety of reasons.
Automatism: It occurs where the defendant
performs a physical act but is unaware of what he is doing, or is not in
control of his actions, because of some external factor.
Even in some
situations the failure to act will cause a person to commit a crime. The
failure to act (omission) then becomes the actus reus of the crime. A positive
duty to act exists in the following circumstances.
arising from statute:
Liability from failing to act will be imposed where the defendant can be shown
to have a duty under statute, but failed to act properly. For example, if a
parent fails to provide food for his/her child, then his/her failure to provide
the food will be considered as a positive act under Children
and Young Persons Act 1933.
from a contract: Where
a person is under a positive duty to act because of his obligations under a
contract and if he fails to perform his contractual obligations then the
failure to act will be considered as the actus reus of the crime.
owed to family members: The common law recognises a duty
that members of a family owe to each other to care for each other’s welfare. R v. Gibbons and Proctor (1918)
prosecution must prove that the defendant committed actus reus while in a
certain state of mind. The mens rea required before a person can be convicted
of a crime is specified in the definition of every crime. There are three
states of mind which separately or together can constitute the necessary mens
rea for a criminal offence. These are intention, recklessness and negligence.
can be divided into two types: Direct Intention and Oblique intention.
intention (also known as purpose
intention) is the
typical situation where the consequences of a person’s actions are desired.
Whereas, oblique intention (also known as foresight
situation where the consequence is foreseen by the defendant as virtually
certain, although it is not desired for its own sake and the defendant goes
ahead with his actions anyway. To
require proof that it was the defendant’s purpose to bring about a particular
consequence may involve placing a very heavy evidential burden on the
prosecution. The courts have stated that foresight of consequences can only be
evidence of intention if the accused knew that those consequences would
definitely happen. Thus it is not sufficient that the defendant merely foresaw
a possibility of a particular occurrence. The relationship between foresight
and intention was considered by the House of Lords in a number of cases.
is the taking of an unjustified risk. However, two different tests have been
developed by the courts, the result of which is that recklessness now has two
different legal meanings which apply to different offences.
One type of
recklessness is the Cunningham or subjective recklessness and the other is
Caldwell or objective recklessness.
subjective recklessness was established in R
v. Cunningham (1957)
which depends on the subjective approach i.e. whether the defendant knows the
risk is willing to take it and takes it deliberately. The question that must be
asked is “Was the risk in the defendant’s mind at the time the crime was
test for recklessness is objective, i.e. the risk must be obvious to the
reasonable man, and it need not be obvious to the defendant. This test was
established in MPC
v. Caldwell (1982). Due
to the loop role in the objective test, which was considered by the House of
Lords in R v. Reed (1982), it has now been abolished and the
only test for recklessness is the subjective test which was established in R v. Cunningham (1957).