Chapter 13 - Actus reus and mens rea

13.1 The principles underpinning fault in the criminal law

Elements of criminal offence

1.​ Two elements which must be proved:
●​ Actus reus – physical element (has done or not done)
●​ Mens rea – mental element (shows an intention or recklessness or failing to
think about when crime is committed)
2.​ Crime
-​ Conduct crime - conduct of the accused forms the offence, no required result
from that conduct
-​ Result crime - result element must happen for the offence to be committed
3.​ The prosecution must prove the elements beyond reasonable doubt.
4.​ Contemporaneity rule’ – both actus reus and mens rea must be present at the same time
-​ When there is a continuing act for the actus reus and, at some point when the
act is still going on the defendant has the necessary mens rea – actus reus
and mens rea coincide
-​ Fagan v Metropolitan Police Commissioner (1968)
-​ Fagan was told by a police officer to park by the pavement. Fagan drove
onto the policeman's foot without realising he had done so. The
policeman pointed out what had happened and asked Fagan several
times to move the car off his foot. Initially he refused to move his car and
swore at the policeman, telling him he could wait. Eventually Fagan did
move the car. The court stated that once Fagan knew the car was on the
police officer's foot, he had the required mens rea for the offence. As the
actus reus (the car putting force on the foot) was still continuing, the
two elements were then present together.

13.2 Actus reus

Conduct element of a crime

1.​ An act - voluntary
-​ An voluntary act/omission must be proven to fulfil an actus reus
-​ No offence committed if the defendant have no control over their actions -
Hill v Baxter (1958)

2.​ Omission (A failure to act) - voluntary

-​ General rule - it must be a positive act, and that an omission cannot make a
person guilty of an offence
-​ R v Miller (1983) Lord Diplock:- ‘conduct which consists of failing to take
measures that lie within one’s power to counteract a danger that one has oneself
created constitutes a necessary ingredient of the offence’
-​ Exception: Actus reus through a failure to act:
1.​ An Act of Parliament creates an offence involving an omission
(statutory duty)
-​ Require an actus reus to establish guilt
-​ e.g. Fail in prevention of pollution/ fail in protecting public safety on
the road
2.​ A contractual duty to act exists
-​ R v Pittwood (1902) - Defendant was employed as a railway
crossing keeper. He went to lunch without closing the gates
between a road and a railway line and caused a collision between
train, horse and cart. He was found guilty of manslaughter as he
failed in his contractual duty.
3.​ A duty exists because of a relationship between the victim and the
accused (parent and child)
-​ R v Gibbins and Proctor (1918) - The child's father and his partner
failed to feed the child, so that it died of starvation. They had a
duty to feed the child as a result of the relationship of parent to
child, so had a duty to act. Their omission to act formed the actus
reus of the offence, and they were found guilty of murder.
4.​ A duty towards the victim has been taken on voluntarily by the accused
-​ R v Stone and Dobinson (1977) - Stone and Dobinson were
convicted of manslaughter after neglecting Stone's ill sister, who
died in their care. Both had a duty of care but failed to provide
help or seek assistance, leading to the crime. Their failure to do
either of these meant that they were in breach of their duty. This
formed the actus reus of the crime.
5.​ A duty to act arises as a consequence of the accused’s official position
(public officer)
-​ an official position can give rise o a duty to act
-​ R v Dytham (1979) - Dytham, a police officer, witnessed a violent
attack on the victim, but took no steps to intervene or summon
help; instead, he drove away from the scene. The officer was
guilty of willfully and without reasonable excuse neglecting to
perform his duty.
6.​ A duty toward the victim arises because the defendant has set in
motion a chain of events (dangerous situation)
-​ R v Miller (1983) - the homeless person lit cigarette fell onto his
mattress and a fire started. He realised this, he left and did not
attempt to put out the fire or summon help. He was guilty of
arson under s 1 of the Criminal Damage Act 1971.
 -​ Doctors’ duties – if discontinuing medical treatment is in the best interests of a
patient, this is not an omission which can form the actus reus

3.​ A state of affairs - not voluntary

-​ Defendant has been convicted even though the act was not voluntary
-​ R v Larsonneur (1933) - Women had been ordered to leave the UK and then she
went to Ireland but Irish police sent her back to the UK. It did not matter that she
was brought back to the UK against her will and she was convicted as an illegal
immigrant.

Causation
Where a consequence must be prove, the prosecution has to show that
1.​ But-for test - the factual cause of that consequence
-​ Factual cause - If the consequence would not have happened ‘but for’ the
defendant’s conduct, he will be guilty. 因你而起
-​ R v Pagett (1983)
-​ The defendant used his pregnant girlfriend as a shield while he shot at armed
police officers. The police fired back and the girlfriend was killed. Pagett was
convicted of her manslaughter. She would not have died 'but for' him using her as
a shield in the shoot-out.
-​ R v White (1910)
-​ The defendant put cyanide in his mother's drink, intending to kill her, but she died
of a heart attack before she could drink it. The defendant was therefore not the
factual cause of her death. He was not guilty of murder, although he was guilty of
attempted murder.
2.​ Legal causation - in law the cause of that consequence
-​ Legal causation - legally responsible for the harm.
-​ The thin-skull rule - a defendant is liable for the plaintiff's injuries even if the
plaintiff had a pre-existing condition or vulnerability that made them more
susceptible to harm.
-​ The defendant must "take the victim as they find them." This means that if
the plaintiff suffers greater harm than an average person due to their
pre-existing condition, the defendant is still fully responsible for all
resulting damages.
-​ R v Blaue (1975)
-​ A young woman was stabbed by the defendant. She was told she needed a
blood transfusion to save her life but she refused to have one, as her religion did
not permit blood transfusions. She died and the defendant was convicted of her
murder. Despite the fact that her religious belief made the wound fatal, the
defendant was still guilty because he had to take his victim as he found her.

3.​ Chain of causation - no intervening act which broke the chain of causation
-​ The intervening act must be sufficiently independent of the defendant’s
conduct and sufficiently serious
The chain of causation can be broken by:
-​ Third party’s act
-​ Medical treatment: independent of the defendant’s acts and in itself so
potent in causing death 取决于致命伤的成因
-​ Switching off a life-support machine when a patient is brain dead does not
break the chain of causation.
-​ R v Smith (1959)
-​ Two soldiers had a fight and one was stabbed in the lung by the other.
The victim was carried to a medical centre by other soldiers, but was
dropped on the way. At the medical centre, the staff gave him medical
treatment but made the injury worse and he died. After the proper
treatment the chance of recovering is actually high. Therefore, the
original attacker is guilty.
-​ R v Cheshire (1991)
-​ The defendant shot the victim in the thigh and the stomach. The victim
had problems breathing and was given a tracheotomy (i.e. a tube was
inserted in his throat to help him breathe. The victim died from rare
complications of the tracheotomy, which were not spotted by the doctors.
By the time he died, the original wounds were no longer life-threatening.
The defendant was still held to be liable for his death.
-​ R v Jordan (1956)
-​ The victim had been stabbed in the stomach. His wounds were healing
well after the treatment in hospital. He was given an antibiotic but allergic
to that, so the doctor stopped the use. But another doctor gave a large
dose of antibiotics causing the death of the victim by allergy. The doctor
was held to be an intervening act, and the defendant was not guilty of
murder.
-​ The victim’s own act
-​ If the defendant causes the victim’s react in a foreseeable way, then the
injury to the victim will have been caused by the defendant.
-​ R v Roberts (1971)
-​ A girl jumped from a car moving at a certain speed to escape sexual
advances. The girl was injured due to this action. The defendant was
liable for her injuries.
-​ If the victims reaction is unreasonable, the chain can be broke
-​ R v Williams (1992)
-​ A hitch-hiker jumped from the defendant's moving car and died. The
prosecution said that someone attempted to steal the victim’s wallet and
that was the reason for his jump. The court held that the victims act had
to be foreseeable and also had to be in proportion to the threat. There
was no proportion to the threat and so the injury was not caused by the
defendant.

-​ A natural but unpredictable event

-​ Example: earthquake/ flood
 Evaluation of actus reus

Some legal systems place people under a duty to help others in danger. It can be argued that
the modern view of moral responsibility is in favour of such a duty. What about the situation
where it is clear that a child is going very near the edge of a cliff? The child's parents or
guardians would be liable for failure to act if they did not warn the child and try to remove them
from the danger. However, a stranger would not be liable.

Should ordinary people be forced to act as rescuers'? The state provides professionals such as
the police, fire brigade and ambulance crews to deal with emergency situations. These services
are paid for through taxes, so it can be argued that every taxpayer is already doing enough.

A major problem in the law on causation is what is meant by an intervening act must be both
sufficiently independent of the defendant's conduct and sufficiently serious'? Whatever words
are used, it is to define and explain to a jury. It can be argued that juries apply different
standards in different cases.

Where the victim has a medical condition which makes an injury more serious, should the
defendant be liable for the more serious injury or even death? It can be seen as being unjust
where the defendant does not know about the medical condition. Similarly, if a person has
COVID-19 but has no symptoms and is untested, it seems they can transmit the virus to another
person. Is this enough for causation in law?

1.​ Duty to Rescue

In many legal systems, there is no general duty for ordinary people to act as rescuers.
While some countries, like France and Germany, have laws requiring citizens to assist those
in danger (with certain limitations), common law jurisdictions like the UK and the US typically
do not impose such a duty.

-​ Moral Responsibility vs. Legal Duty: The modern view of moral responsibility may
indeed favour assisting others in danger. However, legal systems are often hesitant to
impose a duty to rescue on everyone due to practical and ethical concerns, such as
the risk to the rescuer and the implications of penalising inaction. The idea is that
while it might be morally desirable to assist, legally compelling individuals to act could
lead to unintended consequences, including placing them in harm's way or
misjudging a situation.
-​ Professionals vs. Ordinary Citizens: The argument that taxpayers fund emergency
services like the police and fire brigade suggests that society has delegated the
responsibility of rescue to trained professionals. This could be viewed as sufficient in
fulfilling collective moral obligations without imposing individual duties on ordinary
citizens. However, this perspective can be challenged when immediate action by a
bystander could prevent harm that professional services may not reach in time.
 2.​ Intervening Acts in Causation

In legal causation, an intervening act can break the chain of causation, relieving the
defendant of liability if the act is sufficiently independent and serious.

-​ Independence & Seriousness: An intervening act must be an event that is not

reasonably foreseeable and that sufficiently disconnects the defendant's original
act from the final consequence. For example, if a person injures someone, and then an
unrelated and unforeseeable event (like an earthquake) worsens the injury, the
defendant might not be liable for the additional harm. The challenge lies in assessing
whether an intervening act is "sufficiently independent and serious," which is often a
matter for the jury. The lack of a clear-cut standard can indeed lead to inconsistent
applications across cases, as juries may interpret the criteria differently.

3.​ Liability in Cases of Pre-Existing Conditions

When it comes to pre-existing medical conditions, the thin-skull rule dictates that a
defendant takes their victim as they find them. This means the defendant is liable for the full
extent of the harm caused, even if the victim's pre-existing condition makes the injury more
severe than expected.

-​ Fairness vs. Responsibility: While it might seem unfair to hold a defendant liable for
harm that is exacerbated by a condition they were unaware of, the law prioritises the
principle that victims should be fully compensated for their injuries. The law
assumes that the wrongdoer bears the risk of causing more harm than expected,
reinforcing the thin-skull rule.

4.​ COVID-19 Transmission and Causation

The transmission of COVID-19, especially by asymptomatic individuals, raises difficult questions

about causation in law. To establish causation in such cases, the plaintiff would need to prove
that the defendant's actions (or inactions) led to the transmission and subsequent harm.

-​ Challenges in Causation: Given the nature of the virus and its widespread
transmission, establishing causation is particularly complex. The plaintiff must show
that the defendant's conduct was a substantial factor in causing the infection,
which may be difficult given the potential for multiple sources of exposure. The
principle of legal causation would still apply, but proving that a specific individual’s
actions led to transmission would require clear evidence, which is often challenging
in the context of a contagious disease.
Conclusion
-​ These issues reflect the broader tension between legal obligations and moral
considerations.
-​ The law often prioritises clear standards and predictability over enforcing moral duties,
which can lead to perceived injustices in specific cases.
-​ Balancing Legal Certainty and Moral Fairness - The legal system often prioritises
clear, predictable standards to ensure fairness, but this can lead to perceived injustices
when the law’s strict application overlooks moral or contextual nuances. Lawmakers and
courts sometimes try to address these gaps by creating exceptions, using discretion,
or introducing concepts like equity, which aims to achieve fairness in specific cases.
However, these solutions are not always sufficient to bridge the gap between legal
outcomes and societal perceptions of justice.
-​ Ultimately, each of these scenarios involves balancing the protection of individuals
against the practical and ethical limitations of imposing duties on others.
13.3 Mens rea

1.​ Strict liability

-​ Strict liability offences do not require proof of mental element.
-​ (e.g. motoring offences/ environmental offences)

2.​ Two levels of mens rea:

●​ Intention
-​ R v Mohan (1975) – ‘a decision to bring about the prohibited consequence’
-​ The defendant refused to stop when a policeman signalled for him to do
so. But he drove towards the officer, which showed a direct intention to
scare or injure the policeman.
-​ Deliberately
-​ Foresaw that they would cause those consequence (‘foresight consequences’/
‘oblique’ intent) – evidence of intention
-​ Proving intention can be hard when the defendant's main goal wasn't to
cause a specific harm (the "prohibited consequence").
-​ However, in trying to achieve the action, they realised that this harm
was likely to happen anyway. This is called "foresight of
consequences" or "oblique intent."
-​ Not the same intention but can be evidence of intention
-​ R v Woolin (1998)
-​ The defendant lost his temper and threw his three-month-old son
towards his pram which was against a wall just over a metre away.
The baby suffered head injuries when he hit the wall and died. The
court ruled that the consequence must be a virtual certainty, and
the defendant must realise this. If the jury was satisfied on both
these points, then there was evidence on which the jury could find
intention.

●​ Recklessness (lower level)

-​ Taking of an unjustifiable risk
-​ Has to be proved that defendant realise the risk but decided to take it
-​ R v Cunningham (1957)
-​ The defendant tore a prepayment gas metre from the wall of an empty house in
order to steal the money in it. This caused gas to seep into the house next door,
where a woman was affected by it. The defendant was charged with an offence
of maliciously administering a noxious thing, which has a mens rea of
recklessness or intention to do so.
-​ He was held not guilty as he did not realise the risk of gas escaping into the
adjacent house and not intended to cause harm, nor had he taken a risk he knew
about. To have the necessary mens rea, the defendant must either intend to
consequence or realise that there was a risk of the consequence happening and
decide to take that risk.
3.​ Malice - Mens rea is proved if there is transferred malice.
-​ Intended to commit a similar crime but against a different victim
-​ Latimer (1886)
-​ The defendant aimed a blow with a belt at a man in a pub after that man had
attacked him. The belt bounced off the man and struck a woman in the face.
Latimer was guilty of an assault against the woman, although he had not meant
to hit her. There was, however, transferred malice so he could be found guilty of
hitting the woman.
-​ Mitchell (1983)
-​ The defendant tried to jump the queue at a Post Office. An elderly man took
issue with his behaviour and challenged him. The defendant hit the old man and
pushed him. The man fell back onto others in the queue including an elderly lady
who fell and broke her leg. She later died. Here, the mens rea directed towards
the old man was transferred to the offence against the old woman.
-​ However, where the mens rea is for a completely different type of offence then
the defendant may not be guilty.
-​ Pembliton (1874)
-​ The defendant threw a stone, intending it to hit people with whom he had been
fighting. The stone hit and broke a window which was criminal damage. The
intention to hit people could not be transferred to breaking the window as there
was a different mens rea for the two offences.
Evaluation of mens rea

The difficulty judges and jurors face when dealing with mens rea (the mental element of a
crime)

●​ Challenges for jurors: It is hard for jurors to understand what the defendant was
thinking and apply legal tests because these tests are not always clear-cut. Words like
"infer" and "find" can be confusing.
●​ Recklessness as subjective: Recklessness is based on the defendant's awareness of
risk. If they realised there was a risk and took it anyway, they are seen as guilty. This is
fair to the defendant since it punishes only if they understand the risk.
●​ Impact on victims: However, this can be unfair to victims and their families. If someone
is seriously harmed or killed, the attacker may not be guilty if they didn’t subjectively
understand the risk. This makes the law seem like it doesn’t protect innocent people
enough.
●​ Balancing legal principles and public safety: There is a tension between public safety
(ensuring good behaviour and protection) and fairness to the defendant. The law
imposes liability where there is fault, but balancing protection with fairness is difficult.
●​ Easily avoiding liability: The subjective test for recklessness can allow defendants to
escape responsibility too easily. The prosecution must prove that the defendant was
aware of the risk, but this can be hard to establish. It also allows for the defendant’s
personal traits to influence decisions about whether they realised the risk.
●​ Intention vs. foresight of consequences: Proving intention is challenging when the
defendant’s goal wasn’t the harmful result, but they knew that harm would likely happen.
This idea, called "foresight of consequences," isn’t easy for a judge to explain to a jury.

In summary, the text highlights the complexities of determining mens rea, especially with
subjective recklessness and proving intention, while weighing fairness to defendants against
protecting the public.

Summary
-​ Public interest vs Fairness to defendant
-​ Based on awareness of the risk (Recklessness, but is it true that the defendant does not
know?)
Challenges in Explaining and Applying Mens Rea (Evaluation)

1. Complexity of Mental States:

One of the main challenges judges face when instructing jurors about mens rea is the inherent
complexity of determining what was going on in the defendant's mind. Unlike physical actions,
mental states are invisible, and jurors must rely on indirect evidence, such as the defendant's
words and behaviour, to infer their state of mind. This task is complicated further by the legal
jargon used in court, where terms like "infer" (to deduce or conclude from evidence) and "find"
(to determine or conclude after consideration) might seem interchangeable but carry specific
meanings in legal contexts.

2. Subjective Nature of Recklessness:

Recklessness in criminal law is often tested subjectively, meaning the focus is on what the
defendant actually knew or was aware of at the time. To be found reckless, the defendant must
have consciously disregarded a substantial and unjustifiable risk. This subjective test is
designed to ensure that only those who are genuinely at fault—those who consciously took a
risk—are held criminally liable.

This standard is considered fair because it holds people accountable only if they were aware of
the risk. However, it can also be seen as unfair to victims and their families. If a person is injured
or killed, the public might feel that someone should be held responsible. But under the
subjective test, if the defendant didn’t realise the risk, they might not be found guilty, leaving the
victims without justice.

3. Conflict Between Legal Principles and Public Policy:

There is an ongoing tension between two important goals: public protection and fairness to the
defendant. Public policy aims to protect society by encouraging people to act responsibly and
avoid harmful behaviour. On the other hand, legal principles require that a person only be found
guilty if there is clear fault, such as knowledge of the risk (in cases of recklessness). Balancing
these goals is difficult. If the law is too lenient, dangerous people might escape liability; if it’s too
harsh, it might punish those who didn’t fully understand the risks they were taking.

4. Difficulty of Proving Subjective Recklessness:

Because recklessness is assessed subjectively, the prosecution must prove what the defendant
actually knew or believed at the time of the crime. This can be a tough job, as it requires insight
into the defendant's thoughts, which might not be directly observable. Moreover, this subjective
approach allows the defendant's personal characteristics (like age, experience, or intelligence)
to be considered, potentially making it easier for them to avoid liability by arguing that, given
their specific characteristics, they didn’t fully understand the risk.

5. Problems with Proving Intention:

In cases involving intention, things become even trickier. Sometimes, a defendant’s primary aim
isn't to cause the prohibited outcome (e.g., death or injury), but they foresee that achieving their
goal will also result in that outcome. For instance, if someone sets a fire to destroy property
knowing that people might be inside, their main aim isn’t necessarily to kill, but they foresee that
death could result. Explaining this nuanced concept to a jury is difficult, and it can be equally
hard for jurors to apply this understanding when deciding on a verdict.

Conclusion
The challenges of explaining and applying mens rea in court stem from the complex nature of
mental states and the subjective standards used to assess them. Recklessness and intention
are difficult concepts for juries to grasp, especially when they involve understanding the
defendant’s mindset. Balancing fairness to the defendant with the need to protect the public is a
delicate task that often leaves judges, jurors, and legal scholars grappling with difficult questions
about justice and responsibility.

Mens rea
●​ Public interest vs. fairness to the defendant
●​ Recklessness depends on the awareness of the risk
●​ The legal test applied has no clear cut.
●​ Difficult for the jurors to understand what the defendant is thinking
●​ Even if there isn't awareness of risk, the impact on the victim has already seriously
happened like the cause of death. Unfair to the victim.