Mens Rea

2 The elements of a abomination fermentus reus and mens rea Introduction The traditional starting point for the study of bend patrol is the constituents of a bend disgust travelus reus (often rearred to as the prohibited dish emerge, that to a greater conclusion accurately described as the external elements of the execrable offense) and mens rea (often referred to as the mental element, hardly to a greater extent than accurately described as the sack element). Commentators and school-age chelas a desire expect to ? d consistency and certainty in the application and breeding of the vile honor, and close to out impartiality statutory philosophy text harbors dealing with the elements of equity- prison-breakings try to decl be principles that the student should cipher consistently applied in subsequently chapters cover versioning speci? c discourtesys. The main problem is that the offences fox unquestionable in a gradu wholey fashion, exhibiting no under(a)lying rationale or universal border on. Thus in examining actus reus, the student might be covering an offence de? ned in un recitationd impairment, e. g. , by the barbarous Damage shape 1971, or in overcast outdated lyric poem, e. . , in the Offences Against the Person travel 1861, or the de? nition of actus reus may rustle from the common law, perhaps amended or augmented by statute, e. g. , discharge. Similarly, when we run into our admittance to mens rea, we place see little common ground. If the offence learns the pursuance to develop figure, this essential(prenominal) world-widely be left to the panel without small guidance from the streamlet judge (R v Mol bingley 1985 1 altogether ER 1025) solely if heed s eruptness is the print, a counselor-at-law spelling out to the gore what they must ? d may be involve. If unmatchable looks at the culture of the concept of precipitancy one after part see that, prior to the solve of the e rect of manufacturers in R v G 2003 4 altogether ER 765, a flake involving immoral damage would lay batch relate a coquet in trying to assess whether the suspect was heedless according to the de? nition laid d cause in metropolitan Police fiter v Caldwell 1981 1 exclusively ER 961. Following the abandonment of Caldwell heedlessness in R v G 2003 4 all(a) ER 765, the coming back has been simpli? d so that a court promptly has to concentrate on whether or non the suspect was aw atomic number 18 of the fortune in point and if so, whether or non, in the circumstances liven to the suspect, it was un causalityable for him to dribble the pretend. The elements of a umbrage actus reus and mens rea 9 If dishonorabley is the mens rea (see Theft deed of conveyances 19681996) the jury must understand cardinal speci? c motions (would ordinary people consider D dis comely? if so, did D realize that they would? ) and these argon indecisions of fact for them to conc iliate (R v Ghosh 1982 2 entirely ER 689).In other talking to, there be tierce disparate hailes in exhibiting the mens rea for various offences. A search for consistency is thereof a futile exercise Students should thus be awargon that studying the chapters on actus reus and mens rea suffer acquire a distorted impression of the distressing law. One is dealing with concepts in isolation and could phase angle the impression that these general principles are consistently applied. One divisionicular criticism is that the whitlow law is non consistent in applying design or ingrained examines for obligation. accusive tests consider what the reasonable psyche would put up countern.Subjective tests judge the suspect on the facts as he directly believed them to be. There appears to be an absence of both(prenominal)(prenominal) underlying rationale and the offences develop independently of each other. One puke understand why Sir Henry Brooke ( former head of the n atural law Commission) and umpteen others offer for codi? cation of just nigh, if non all, of the bend law (see 1995 Crim LR 911The fairness Commission and Criminal Law Reform). Even established concepts that scram been applied by the courts for mevery long time, may suddenly come under attack and be taken differently by the judiciary.Thus the family line of gentles in Attorney-Generals Reference (No. 3 of 1994) 1997 3 All ER 936, reversed the tourist court of charm de enclosureination (1996 2 WLR 412), h superannuateding that the doctrine of transferred malice could non apply to yard bird an accuse of mangle when he deliberately injured a heavy(predicate) charr in circumstances where the baby was born alive but subsequently died. original Mustill criticized the doctrine as having no sound mental stem and involving a ? ction, although the Criminal Law Re conniption disagrees with his view (1997 Crim LR 830).In this chapter inquirys choose been chosen to co ver all major founts of this area. There are al or so problem interrogative sentences, but commodedidates should expect the es posit questions in an exam to be selected from these topics. Essays are therefore included on the beta aspects of mens rea endion and judiciousness. inquiry 1 The practice of leaving the issue of functionion to the jury without each juridical guidance as to its meaning is unworkable and likely to produce inconsistent determinations. Discuss this report with indication to located slips. CommentaryThere hurl been so m both important ratiocinations on this important aspect of criminal law, that it is ever so likely to be the contentedness of an question question. 10 The elements of a law-breaking actus reus and mens rea Be get the facts of R v Moloney 1985 1 All ER 1025 are so well known, there is a temptation scarcely to regurgitate them with the dramatics of Lords decisions. This must be resisted as there are m any ingredients in the set, which requires doful protrudening and organization. In summary, this is a question where it is quite easy to engage a pass mark but dif? c ult to contain a mellow grade. swear out pattern Mens rea Intentionde? nition Moloney 1985the golden incur Woollin 1998 watchfulness on intention Law Commission No. 218 Suggested answer Except with unyielding (or absolute) indebtedness offences, in order for an impeach to be diagnose chargeable of a criminal offence, the criminal criminal pursuit must prove that the criminate committed the actus reus of the offence with the appropriate mens rea. Mens rea generally signi? es blameworthiness, although in R v Kingston 1994 3 All ER 353, the shack of Lords con? rmed that the impeach was guilty of an offence requiring the criminal prosecution to prove intention, although he was morally blameless.Mens rea is the mental element, which varies from one offence to a nonher but generally, for the more serious offences, it comp s tand ups intention or precipitancy, with intention creation reserved for the most serious offensive activitys. One would therefore think that, creation of much(prenominal)(prenominal)(prenominal) entire importance, intention would be speci? bidy de? ned and rigidly applied, but this is non the case. There sop up al sorts been dif? culties with the concept of intention within the criminal law. What is it? How should it be de? ned? How do the prosecution prove it? How does the discharge judge direct the jury?These issues baffle been the subject of much judicial and academic debate in novel years. Although the word intention implies purpose or make up desire, there have been many diverse de? nitions by the judiciary, and commentators have alike identi? ed different types of intention. First, direct intent, where it was the impeachs purpose or motive to gain or so a go. Thus in R v Steane 1947 1 All ER 813, the charge, who assisted the enemy during the war, had his c onviction quashed as the court finalized that he did not intend to assist the enemy he intended to protect his family, who would have been harmed had he not cooperated.Secondly, oblique intent, where the accuse does not necessarily desire the result but foresees it as extremely probable. Thus in Hyam v DPP 1974 2 All ER 41, the put forward of Lords upheld a conviction for murder where the The elements of a execration actus reus and mens rea 11 accuse had set ? re to the dupes put forward even though the accuseds purpose had been totally to frighten the dupe. Because there was raise that the accused foresaw that finish or grievous material harm was super probable the manse of Lords felt justi? d in concluding that her state of top dog could be regarded as a form of intent (on this acceptoff the law is now as set out in R v Woollin 1998 4 All ER 103see below). Thirdly, ulterior intent, where it must be studyn that in intentionally doing one act the accused has a related purpose. Thus to be guilty of burglary under s. 9(1)(a) of the Theft meet 1968, it is infallible for the prosecution to prove that the accused, when deliberately entering a make as a trespasser, did so with a speci? c related purpose in caput, e. g. , to steal or commit criminal damage. It would not be suf? ient if the accused intentionally broke into the domicil with the sole purpose of sheltering from the weather. The terms speci? c and basic intent, are withal used in watch over of the self-abnegation of intoxication to distinguish between those offences where intoxication is permitted as a defence and those where it is not (see pass on DPP v Majewski 1976 2 All ER 142). Although there is an overlap between intention on the one turn and motive and apprehension on the other, and these latter concepts assist the jury in their deliberations on intention, it is cause that the concepts are not synonymous.Motive is the reason why a mortal acts, while intention is his or h er mental ken at the time of the act. Foresight can be yard of intention, but it is not conclusive proof of it. partition 8 of the Criminal Justice bite 1967 states that a court shall not be bound in law to infer that the accused intended or foresaw a result of his actions by reason only of its being a natural and probable exploit of those actions, but shall decide whether he did intend or foresee that result by reference to all the severalise, drawing such inferences from the evidence as appear proper in the circumstances.The issue of intention was debated by the mob of Lords in R v Moloney 1985 1 All ER 1025 and R v autograph and Shankland 1986 1 All ER 641. In the former case, Moloney shot his stepfather from point blank range and was convicted of murder by and by the trial judge ( spare-time activity Archbold Criminal P hightail iting essay and Practice, 40th edn, para. 1713, p. 995) directed the jury that In law a man intends the proceeds of his voluntary act (a) whe n he desires it to happen, whether or not he foresees that it belike testament happen, or (b) when he foresees that it will probably happen, whether he desires it or not.The abide of Lords quashed the conviction on the basis that this was a misdirection, Lord dyad stating that the golden rule should be that, when directing a jury on the mental element demand in a crime of speci? c intent (i. e. , intention), the judge should avoid any elaboration or paraphrase of what is meant by intent, and leave it to the jurys dandy sentience to decide whether the accused acted with the undeniable intent, unless the judge is convinced that, on the facts and having regard to the way the case has been presented to the jury in evidence and 2 The elements of a crime actus reus and mens rea assertion, slightly pay heedize explanation or elaboration is exactly necessary to avoid misunderstanding. Although the decision may be criticized on the ground that their Lordships mazed a golden op portunity to de? ne intention, it is in keeping with the groundbreaking form of leaving more and more issues to the jury, especially the meaning of nomenclature in common use. For example, Brutus v Cozens 1972 2 All ER 1297 (insulting) R v Feely 1973 1 All ER 341 (dis frankly).This decision was complyed by the House of Lords ruling in R v Hancock and Shankland, where Lord Scarman also make the point that if intention postulate a detailed direction it was best to leave this to the discretion of the trial judge who would have had the bene? t of hearing all the witnesses and gauging the ability of the jury. He added that the trial judge could not do as Lord Bridge suggested and evidently direct the jury to consider two questions ? st, was death or really serious taint in a murder case a natural result of the suspects voluntary act? secondly, did the suspect foresee that sequel as being a natural consequence of his act? further instructing them that if they answer Yes to both questions it is a proper inference for them to draw that the accused intended that consequence. Lord Scarman stated that the trial judge must refer to the concept of probabilitythe more probable the consequence, the more likely the accused foresaw it and intended it.Despite clear House of Lords dicta to the contrary, the philander of solicitation in R v Nedrick 1986 3 All ER 1 did lay down several(prenominal) guidelines to the return that the jury should not infer intention unless they considered that the accused foresaw the consequence as a practical(prenominal) certainty. However, this decision has wined criticism, and the Court of Appeal in R v Walker and Hayles 1989 90 Cr App R 226 stated we are not persuaded that it is only when death is a virtual certainty that the jury can infer intention to kill. Nevertheless, the side of Nedrick was con? med by the House of Lords raillery in R v Woollin 1998 4 All ER 103. The House, stating that where the simple direction was not en ough, the jury should be further directed that they were not entitle to ? nd the necessary intention unless they felt sure that death or serious bodily harm was a nearly certain result of Ds action (barring some unforeseen intervention) and, that D had appreciated that fact. This decision also illustrates one of the dif? culties of the present approach, i. e. , when is the issue of intention so complicated as to warrant a detailed direction?In R v Walker and Hayles, the Court of Appeal pertinacious that the mere fact that a jury calls for a further direction on intention does not of itself make it a rare and exceptional case requiring a farsightedness direction. On the other hand, in R v Hancock and Shankland, the House of Lords con? rmed that the trial judge was right to give a detailed direction, even though the content of the direction was wrong. A further problem is that different juries may have different beliefs as to what constitutes intention, some insisting on purpose be ing necessary, while others are b attempt to accept that only foresight of a probable consequence is required.There is distinctly the The elements of a crime actus reus and mens rea 13 risk of inconsistent decisions and it is therefore not surprising that the Law Commission (Nos 122 and 218) have recommended that the following banal de? nition of intention 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 deliver the goods in his purpose of causing some other result. Question 2 Mens rea is, by de? nition, the defendants state of spirit. Discuss the accuracy of this statement using case law to support your argument. Commentary This question requires examen of some of the assumptions made somewhat 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 indwelling view of break. Although Caldwell recklessness has now been in effect consigned to legal history (for the time being at least(prenominal)(prenominal)) a good answer will engage to parade an sagaciousness of that decision and its violation on the mens rea debate.Consideration also needs to be granted to the issue of erroneous belief and its tellingship with mens rea. Finally, the answer should encompass some rumination of inadvertence as a form of mens rea and the extent to which its use accords with notions of ingrained brand. act plan The nature of mens rea IntentionR v Woollin House of Lords decision The recklessness debate R v G 2003abandoning Caldwell The treatment of error and its effect on mens reaDPP v Morgan 1976 Killing by consummate(a)(a) negligencewhether objective or subjective 4 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 devoted 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 cracking element that the prosecution has to prove.In the majority of cases this will involve proof of some dogmatic 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 self-evident to the reasonable person. The two most important brand 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 bear on, indebtedness 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 careworn. The modern de? nition of intention can be derived from a sum up 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. solo where there is evidence that he foresaw either consequence as virtually certain would it be safe for a jury to reason out that a defendant therefore intended either of those consequen ces. The key here is foresight. Section 8 of the Criminal Justice spell 1967 makes clear that foresight is a subjective concepti. e. it is based on what the defendant actually foresaw not on what he ought to have foreseen, or thus what the reasonable person would have foreseen had he been in the defendants shoes. Taken together, the de? nition of foresight in the 1967 travel, and the House of Lords ruling in Woollin construe that where intention is the required mens rea, there can be no doubt that it will be based on the defendants state of mindi. e. , a subjective approach will be adopted. The rationale for this is fairly demonstrableit 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 chess opening of the consequence occurring has only ? eetingly crossed his mind it would still be senseless to say he intended it. The law, therefore, requires a very high full stop o f foresight onward a defendants state of mind is la campanaed 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 15 decades as to the right approach to the determination of fault.The traditional approach to recklessness as a form of mens rea very much re? ected the view that mens rea had to be based on the defendants 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 unjusti? able risk and was at least aware of the risk materializing. The key point about this approach to recklessness was that there would be no obligation if the risk neer 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.Ds conviction for criminal damage being reckless as to whether life would be endangered, contrary to s. 1(1) of the Criminal Damage execution 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 purpose to the possibility of there being any such risk, or had accept 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 get downd even though the risk in question had not occurred to the defendant.Whilst this might have been a desirable policy lastit made it easier for the prosecution to secure convictionsit threw up many dif? cult 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 sharp-set, spilt some in? ammable temper and then dropped a lighted match on the wooden ? oor of a garden shed. She was aerated under s. 1(1) of the Criminal Damage routine 1971.It was argued that she did not foresee the risk of ? 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 defendants 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 persons 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 treasure risk. What he meant by this was that even with Caldwell recklessness, the court had to consider the defendants state of mind. plainly, it is submitted, this is a piece of judicial sophistry, as all that was required was for the court to examine the defendants state of mind and, on ? 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 Diplocks efforts to penalize thoughtlessness in terms of a friendly policy initiative, the real question was whether he was right to 16 The elements of a crime actus reus and mens rea ursue this via a radical judicial reinterpretation of the term recklessness. It is signi? cant that fantan intervened shortly after Caldwell to reform the offence of reckless driving (a nd therefore causing death by reckless driving) by replacing it with the offence of risky drivingsee the Road Traf? c act upon 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 defendants state of mind. Recklessness was re laid, 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 wholly upon an objective assessment of the defendants conduct. In other words a defendant could drive dangerously because he had a sternly secured load on the back of his trailerthere 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 favor again, as attest 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 unsufferable 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 unfeignedly did not embrace the risk. R v G re? ects 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 drop off of factsuch 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 defence of honest belief or stray, or of a defence of honest and reasonable belief or mistake.The reasonableness of the defendants honest belief was simply a factor relating to its credibility. The mental element in the offence of rape has now been modi? 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 defendants 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 defendants conduct get out from the proper standard of care incumbent The elements of a crime actus reus and mens rea 17 upon him, thereby creating a risk of death, and involved such a passing from acceptable standards of care as to deserve the stigma of criminalization.As was made clear in Attorney-Generals Reference (No. 2 of 1999) 2000 3 All ER 182, evidence of the defendants 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 defendants state of mind. Whilst this may seem to run counter to the trend in favour of subjectivity it should be remembered t hat it serves a useful kindly purpose in fashioning 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 defendants state of mind to ascertain a mark of awareness of the consequences of his actions. The law will, however, allow departures from this where the loving utility of doing so outweighs the need to ensure the fairness to the defendant that ensues from adopting a subjective approach to fault. Question 3 You are told that the (? titious) antique hold in Act 2009 has just received the lofty Assent and that s. 1 provides, It shall be an offence to destroy any book printed earlier 1800. Discuss the criminal liability of each party (in proportion to the 2009 Act) in the following situation. Arthur owns 200 books, which he thinks are worthless. He is concerned in case any of the books were printed before 1800 and consults Ben, an expert on old books, who assures him that all the books were printed long after 1800.Arthur destroys the books and is now horri? ed to discover that trio of them were printed in 1750. Commentary This is an unusual question which has caused students dif? 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 daybook Act 2009, and in particular analysis of the concept of strict liability. In a assess by Justice referred to in an article by A. Ashworth and M.Blake, The Presumption of whiteness in English Criminal Law 1996 Crim LR 306, it is estimated that in over one half of criminal offences either strict liability is compel, or the prosecution have the bene? t of a presumptuousness. 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. Candi dates should also consider the position if the courts decide that intention or recklessness is the appropriate mental state. 8 The elements of a crime actus reus and mens rea Answer plan Strict liabilitySweet v parsley 1969 Presumption of mens reaB v DPP 2000 The exceptions Recklessness MistakeMorgan 1976 Bens liability under the sincere Crime Act 2007 Suggested answer The ? rst point to note is that s. 1 of the Ancient Book Act 2009 is silent as to the mens rea requirement of the offence. This could mean that the offence is one of absolute liability (i. e. , strict liability in the sense that no mens rea whatsoever is required).Alternatively it could be a strict liability offence in the sense that intention, recklessness or negligence is only required as regards one or more elements of the actus reus. The imposition of absolute liability may be very harsh on the defendant. For example, in pharmaceutic Society of Great Britain v Storkwain 1986 2 All ER 635, the House of Lords upheld the conviction of a pharmacist who had given do drugss to a patient with a forged doctors prescription, although the court found the pharmacist blameless.Whilst the decision demonstrates the inherent unfairness of strict liability, it can be justi? ed on the basis that the misuse of drugs is a corpulent social evil and therefore should be prevented at all costs. The ? rst case of statutory strict liability was R v woodrow (1846) 15 M &038 W 404, where the accused was found guilty of being in possession of adulterated tobacco, even though he did not know that it was adulterated. Many early decisions revealed an inconsistent approach as the courts were trying to interpret old statutes in ascertaining the will of Parliament.However, Lord Reid in the House of Lords decision in Sweet v Parsley 1969 1 All ER 347 laid down the following guidelines (a) wherever a section is silent as to mens rea there is a presumption that, in order to give effect to the will of Parliament, words merchandise mens rea must be read into the preparedness. (b) It is a universal principle that if a penal provision is somewhat capable of two interpretations, that interpretation which is most favourable to the accused must be adopted. (c) The fact that other sections of the Act expressly require mens rea is not in itself suf? ient to justify a decision that a section which is silent as to mens rea creates an absolute offence. It is necessary to go outside the Act and examine all relevant circumstances in order to establish that this must have been the intention of Parliament. The elements of a crime actus reus and mens rea 19 So in Cundy v Le Coq (1884) 13 QB 207, a publican was found guilty of selling intoxicating liquor to a drunken person under s. 13 of the Licensing Act 1872, even though the publican did not know and had no reason to know that the node was drunk whereas in Sherras v De Rutzen 1895 1 QB 918, a publican was not guilty under s. 6(2) of the Licensing Act 1872 of serving alcohol to a law constable while on barter when the accused did not know or have reason to know that the police constable was on transaction. The former case was held to be an offence of strict liability, whereas in the latter, in order to obtain a conviction, the prosecution had to prove mens rea on behalf of the publican, which they were inefficient to do. Despite the fact that there is a presumption in favour of mens rea when a statute is silent, the courts have been prepared to rebut this presumption on many occasions.The leading case on this point is Gammon v Attorney-General for Hong Kong 1985 AC 1, where Lord Scarman set out the applicable principles. If the offence is in truth criminal in character the presumption is particularly strong, but it can be displaced where the statute is concerned with an issue of social concern. Thus, in Gammon, as the accuseds activities involved public safety, the Privy Council were prepared to check into that the legislature i ntended the offence to be one of strict liability. On analysis these principles appear inconsistent. It could be argued that all crimes by de? ition are grave social evils, yet if the offence is truly criminal in character, strict liability does not apply. In practice, the courts have adopted a ? exible approach, but it is acknowledge that certain spheres of activity are always likely to attract the conclusion that this is an offence of strict liability. Thus in? ation (R v St Margarets Trust Ltd 1958 2 All ER 289), pollution (Alphacell Ltd v timberward 1972 2 All ER 475), and dangerous drugs (Pharmaceutical Society of Great Britain v Storkwain, above) are traditional areas where strict liability has been compel.However, it does seem in recent years that the category of grave social concern is expanding to encompass pertly social activity to include acting as a director whilst disquali? ed (R v Brockley 1994 Crim LR 671) and unauthorized possession of a dangerous dog (R v Bezzin a 1994 1 WLR 1057). However, the House of Lords have again emphasized the need for the prosecution to prove mens rea in B (A minor) v DPP 2000 1 All ER 833, where Lord Hutton stated (at p. 855), the test is not whether it is a reasonable importee that the statute rules outmens rea as a constituent part of the crimethe test is whether it is a necessary implication.Further in R v cubic decimetre 2001 3 All ER 577, the House held that although s. 28 of the Misuse of Drugs Act 1971 required the defence to prove a defence, this only meant introduce evidence of, instead than establish a defence on the balance of probabilities. In view of these developments, it is submitted that it would be most unlikely for s. 1 of the Ancient Book Act 2009 to be an offence of strict liability, and therefore Arthur will only be guilty if the prosecution can establish that he had the necessary mens rea.As Rix LJ observed in R v M 2009 EWCA 2615, even if the provision in question is silent as to mens rea and other provisions in the statute expressly require it, the presumption in 20 The elements of a crime actus reus and mens rea favour of mens rea will not be rebutted unless the circumstances are such as to compel such a conclusion. If the court were to decide that the offence required the prosecution to prove intention, it is submitted that Arthur would not be convicted.He obtained the flavour of Ben, an expert and clearly did not desire or even foresee the consequence that protected books would be destroyed. Arthur has made a mistake, and even if an accused makes an monstrous mistake, in accordance with the House of Lords decision in DPP v Morgan 1976 AC 182, he is, in the absence of any clear statutory intent to the contrary, entitled to be judged on the facts as he believed them to be. If the court decides that the offence could be committed recklessly, it would still be very dif? ult for the prosecution to establish the appropriate mens rea. It is almost certainly the case that subjective recklessness would have to be provedi. e. , the prosecution must show that the accused foresaw the consequence and took an unjusti? ed risk (R v Cunningham 1957 2 All ER 412 and R v G 2003 4 All ER 765) (although technically the latter only deals with the issue of recklessness in relation to criminal damage). As Arthur sought the picture of an expert it is dif? cult to see how it could be argued that he was consciously taking an unjusti? ed risk.It is therefore submitted that Arthur could be guilty of the offence only if the court decides that s. 1 of the Ancient Book Act 2009 creates an offence of strict liability. Turning to Bens liability, if he genuinely believed the books to be of post-1800 vintage and the courts interpret the offence as requiring at least recklessness on this issue, he could not be convicted as an companion as he would lack the necessary mens rea. If the offence were held to be one of strict or absolute liability Ben could only be convicted a s an accomplice if he knew of the facts that constituted the offencei. . he knew the books dated from before 1800see Johnson v Youden 1950 1 KB 544. Alternatively, if Ben knew or believed the books to date from before 1800 he could be charged with either (i) doing an act capable of promote or assisting the focusing of an offence intending to encourage or assist its commission contrary to s. 44 of the Serious Crime Act 2007 or (ii) doing an act capable of encouraging or assisting the commission of an offence believing that the offence will be committed and that his act will encourage or assist its commission contrary to s. 5 of the Serious Crime Act 2007. The act in question would be giving advice to Arthur he knew to be wrong. The fact that Arthur, in destroying the books, might have acted without mens rea will not disembarrass Ben. If the offence under the Ancient Book Act 2009 is construed as requiring fault it will be suf? cient for the prosecution to prove that Bens state of mind was such that, had he destroyed the books, he would have acted with the degree of fault required for the full offence see s. 47(5)(a)(iii) of the 2007 Act.If the 2009 Act is a strict liability offence, Ben can be convicted under the Serious Crime Act 2007, provided he believed that the books dated from before 1800 or was reckless as to whether or not they did. The elements of a crime actus reus and mens rea 21 Question 4 Gloria, Woods eccentric aunt, aged 57, was invited to stay with Wood and his girlfriend bloody shame at their property on the coast. It was agreed that Gloria would stay for three weeks and would infest the bear down in the garden of the Woods house some 30 yards away. Gloria also agreed to pay ? 0 to cover the electrical energy she would use in the lodge. Everything went well for two weeks, with all three share meals at the house. However, a change of mood then came over Gloria who indomitable that she no longer wanted to have meals with Wood and bloody sh ame. Gloria spent more and more time by herself at the lodge. After 20 days of the holiday Gloria, whose visible condition had visibly deteriorated, announced that she refused to leave the lodge and was going to stay there the rest of the winter. This so enraged Wood and Mary that the next day they told her to leave immediately, which she did.Six hours later, at 11 pm, Gloria rang their bell pleading to be let in as she was cold and hungry and had nowhere else to go. Wood and Mary refused, and during that night Gloria was taken to hospital unworthy from hypothermia. While in hospital, Gloria fell unconscious and was placed on a life support machine. After ? ve days she was correctly diagnosed by Dr Spock as being in a persistent vegetative state with no hope of recovery. He accordingly disconnected the machine. Discuss the criminal province (if any) of Wood and Mary. CommentaryThe sensible way to tackle this question is to start with an examination of failure to act as a basis fo r liability. The key aspect of this will be the comparison of the given cases with earlier decisions such as R v Instan and R v Stone and Dobinson. Care must be taken to distinguish between the facts of those cases and the current problem. The facts of the question require an examination of at least three bases for liability blood kinship, doctrine, and creating a dangerous situation. Do not fall into the trap of thinking that the discussion of omission is all that is required.Candidates must establish a causal unite between the omission and the deathin fact and in law. Finally, candidates will need to consider the most appropriate form of homicide. Candidates are advise not to waste valuable time considering murder or improper act manslaughterthey are clearly not relevant on the facts. In relation to killing by gross negligence, candidates need to devote some time to the issue of concern of carenote that this covers very equal ground to the discussion relating to liability f or omissionbut the decision in R v Evans is particularly helpful and relevant here.Note Candidates are not required to consider the responsibility of Dr Spock. 22 The elements of a crime actus reus and mens rea Answer plan Is there a causative omission? Examine the bases for liability for failing to actstatutory, contractual, and common law Distinguish R v Instan and R v Stone &038 Dobinson Consider R v miller and R v Evans Consider killing by gross negligence Can a responsibleness of care be established? Is the degree of fault required made out on the facts? Suggested answer The ? st issue to be resolved is whether or not Wood and Mary can be said to have caused the death of Gloria. As there is no positive act by either of them that causes death, the court would need to analyze whether or not liability can be based on the failure of either or both of them to prevent Glorias death. The question as to whether an omission, as opposed to an act, can actually cause a consequen ce is a moot point. Traditionally, the criminal law has always drawn a clear distinction between acts and omissions, being loath to vindicate the latter.Other European countriese. g. , Greece, France and Germanydo not exhibit the same reluctance, and there is departure as to whether the English approach is correct. See in particular the different views of Professors A. Ashworth (1989) 105 LQR 424 and G. Williams (1991) 107 LQR 109. However, apart from the numerous statutes that impose a duty to act, e. g. , s. one hundred seventy of the Road Traf? c Act 1988, it appears that the common law will impose a duty to act only in very trammel circumstances.There can be no criminal liability imposed on Wood and Mary in respect of their failing to care for Gloria unless the prosecution can establish that they were under a positive legal duty to care for her. Such a duty can be imposed by statute, but that is clearly not the case here. Similarly a legal duty to act can arise from a contrac t between the parties. For example in R v Pittwood (1902) 19 TLR 37, where the defendant, a railway gate operator, was found guilty of manslaughter when a person was killed cut through a railway line as a result of the defendant leaving the gate open when a train was coming.In the present case it could be argued that there was a contractual alliance, in that Gloria agreed to pay for her electricity and was in occupation of the lodge, but it is hard to see how any positive duty to care for Gloria can be impliedand in any event it would be argued that the contract was only for the initial three-week period, and that it was a strictly domestic arrangement not intended to give rise to de jure enforceable obligations. In respect of Wood it could be argued that he was under a common law duty to care for Gloria because she was a relative.Where the relationship is that of parent and child the common law has had little dif? culty in identifying a positive legal duty of care so The elemen ts of a crime actus reus and mens rea 23 that failing to act can result in liability where it causes harm see R v Gibbins and Proctor (1918) 13 Cr App R 134. In R v Instan 1893 1 QB 450, liability for manslaughter was imposed upon a niece who failed to care for her aunt with whom she was living, having been given money by the aunt to supply groceries. Liability in Instan was largely based on the cosmea of a blood relationship between the parties.This would seem to suggest that, at least in the case of Wood, there might be a common law duty to act. It is submitted that the present case can be distinguished from Instan. In Instan the defendant actually occupied the same house as the deceased, and had expressly undertaken the task of purchasing food for her, which she subsequently failed to do, knowing well that her aunt could not fend for herself. In the present case Gloria decided for herself that she wanted to stay in the lodge alone, thus ski tow the question of whether Wood was obliged to do anything more for her than he had been doing during the ? st two weeks of her stay. Furthermore the evidence suggests that it was refusing to allow in Gloria after she had been told to leave that led to her deathraising the question of whether Wood was under any obligation to readmit Gloria. The much more promising argument for the prosecution is that a positive legal duty to act at common law arose in respect of both Wood and Mary because they had allowed a relationship of credit to develop between themselves and Gloria. The key authority here is R v Stone and Dobinson 1977 QB 354.In that case the Court of Appeal upheld convictions for killing by gross negligence on the basis that the defendants had admitted the deceased to their house and had act to care for her. They then failed to discharge their duty adequately and failed to summon any attention in discharging that duty. The court stressed that the duty to act arose not simply because of a blood relationship b etween one of the defendants and the deceased, but because of the reliance relationship.It could be argued that in allowing Gloria to stay Wood and Mary allowed a relationship of reliance to developbut the present case can be distinguished from Stone and Dobinson on the grounds that Wood and Mary placed a time limit on Glorias stay, and Gloria left of her own volition. Thus the argument as to whether or not there is any liability for failing to act is ? nely balanced. The prosecution could run an alternative argument on the basis that when Gloria begs to be readmitted to the house Wood and Mary are aware that their expulsion of Gloria has created a dangerous situation.There is evidence that Glorias physical condition had visibly deteriorated. Gloria was cold, hungry, and had nowhere to go. There was evidence that Gloria was eccentric. Applying R v Miller 1983 1 All ER 978, where the House of Lords upheld the accuseds conviction for criminal damage where he had inadvertently started a ? re and then, when he realized what he had done, simply left the building without making any attempt to prevent the ? re spreading or to call the ? re brigade, it could be argued that by failing to offer Gloria shelter, Wood and Mary committed culpable omission that caused Glorias death.For the Miller principle to apply, the prosecution would have to show that the defendants were both aware that their expulsion of Gloria had created a dangerous situation. On the facts this should not be too dif? cult. 24 The elements of a crime actus reus and mens rea Assuming that the failure to care for Gloria, or the refusal to readmit her to the house, can form the basis of liability, the prosecution will have to show that this omission caused Glorias death. It is not necessary for the prosecution to prove that the omission was the sole or main cause, merely that it contributed signi? antly to the victims death (R v Cheshire 1991 3 All ER 670). The accused could argue that the doctors twist off the life support system constituted a novus actus interveniens, breaking the chain of causality but this argument was rejected by the House of Lords in R v Malcherek R v Steel 1981 2 All ER 422, where Lord Lane CJ stated that the fact that the victim has died, despite or because of aesculapian treatment for the initial injury given by careful and skilled medical practitioners, will not authorise the original assailant from responsibility for the death.It is therefore clear that the medical treatment, of itself, will not be held to have broken the chain of causation in law. Wood and Mary could be charged with manslaughter on the basis of killing by gross negligence, which, unlike unlawful act manslaughter, can be based on an omission see R v Lowe 1973 1 All ER 805. The key authority regarding killing by gross negligence is the House of Lords ruling in R v Adomako 1994 3 All ER 79, where their Lordships held that an accused would be guilty of manslaughter if the following four conditions were satis? d (i) the accused owed a duty of care to the victim (ii) that duty was broken (iii) the conduct of the accused was grossly negligent (iv) that conduct caused the victims death. In some cases the existence of a duty of care will be self-evident, for example doctor and patient, parent and child etc. Notwithstanding the decision in R v Instan, it should not be assumed that all familial relationships will give rise to a legal duty of care, and in any event this would not assist as regards Mary. Signi? antly, the Court of Appeal decision in R v Evans 2009 EWCA Crim 650, indicates that a duty of care will be know by the courts in what might be referred to as R v Miller situations i. e. , where the defendant has created a dangerous situation and is aware, or ought reasonably to be aware, that this is the case. Allowing Glorias physical condition to deteriorate and then not allowing her back into the house might provide the evidential basis for this. The trial judge in the present case should direct that they can conclude that a duty of care existed provided they ? d certain facts establishedand the trial judge should make clear to the jury what those key facts are. It is submitted that there is suf? cient evidence for the jury to conclude that a duty of care existed. The breach of the duty of care is evident in their not helping Gloria and not attempting to obtain any alternative assistance for herthey did not even call the police to The elements of a crime actus reus and mens rea 25 advise them of the problem. The issue of whether this breach of the duty of care can be said to have caused the death of Gloria has already been considered above.The remaining live issue, therefore, is that of gross negligence. Following the House of Lords decision in R v Adomako the jury will have to determine whether or not the accuseds conduct (a) departed from the proper standard of care incumbent upon them (b) involved a risk of death to the victim (c) was s o grossly negligent that it ought to be regarded as criminal. As later cases such as R v Mark and another 2004 All ER (D) 35 (Oct) indicate, actual foresight of risk of death by the accused is not required.The test for mens rea is objectivedoes the jury regard the act or omission leading to the breach of duty as being so culpable that it should be labelled as criminal? Evidence that the defendants knew they would cause harm by not acting is admissible to establish the required fault, but is not essential. Similarly, evidence that Mary and Wood had never thought about what might happen to Gloria could be admissible to show that they should not be labelled as criminals, but such evidence would not preclude a ? nding by the jury that they had acted, or failed to act, in a manner that was grossly negligent. Question 5Critically analyse with reference to decided cases, the reasons why the development and application of the criminal law is often unorthodox and inconsistent. Commentary Oc casionally an exam will contain a question that requires candidates to take a wider view of the criminal law. This is such a question. Candidates cannot simply home in on a speci? c area and cover it in detail. Candidates must try to think of instances throughout the syllabus that can be used in your arguments to answer the question. Avoid the common mistake of interpreting the question to read Choose one area of the criminal law where there are dif? ulties and write all about them This question has been included as it enables candidates to think more widely about the procedure of the criminal law within the legal system and society as a whole. Providing a good answer requires the ability to take a broad view of the syllabussomething candidates who revise topics in isolation are not always able to do. 26 The elements of a crime actus reus and mens rea Answer plan Constant changeR v R 1991 wish of codeCaldwell 1981, Morgan 1975 Logic v policy Role of House of Lords cleg 1995 Su ggested answer The development of many areas of law follows a consistent and lawful course.The basic foundations, their concepts and application are accepted by the vast majority, and only ? ne tuning or adjustments of these principles are required to meet new situations. Unfortunately this cannot be said about criminal law, where the debate about fundamental conceptssuch as whether recklessness should be interpreted subjectively or objectively whether a mistake of fact relied upon by a defendant should have to be one that a reasonable person would have made whether manacles should be a defence to a charge of murderis still ongoing. One of the problems is that the criminal law is subject to constant change.It has to adapt to cover new phenomena, such as stalking, drug abuse, and internet fraud and to re? ect societys changing social and moral standards. As the House of Lords stated in R v R 1991 4 All ER 481, abolishing the hubbys marital rape exemption, the common law is capabl e of evolving in the light of social, economic and cultural developments. In that case the recognition that the status of women had changed out of all recognition from the time (Hales Pleas of the Crown 1736) when the husbands marital rape exemption was initially recognized was long overdue. Similarly, the criminal law once re? cted the moral position that it was a crime to take ones own life. Failure in such an enterprise was prosecuted as attempted suicide and could be punished. However, attitudes softened and it was recognized that such a person needed help, not a criminal trial the law was consequently amended by the Suicide Act 1961. The 1960s saw similar changes in respect of the law relating to homoeroticism and abortion. Changes in the law can also result from a put forward in ideology on the part of an elected government, or as a response to new threats to the safety and stability of societyfor example legislation to combat terrorism.There is no doubt that the development and application of the criminal law would be more consistent and predictable if the courts exhibited a more identical approach to its development. The problem is illustrated by two House of Lords decisions Metropolitan Police Commissioner v Caldwell 1981 1 All ER 961, where an objective approach to recklessness was used, and DPP v Morgan 1975 2 All ER 347, where a subjective approach to mistake was applied. Why was it that liability for recklessness was imposed on an objective basis, but where a defendant made a mistake of fact heThe elements of a crime actus reus and mens rea 27 was entitled (subject to any statutory provision to the contrary) to be judged on the facts as he honestly believed them to be? Commentators may argue that two different areas of the criminal law were being considered, criminal damage and rape (note that the law has since been changed as regards rape by the Sexual Offences Act 2003), but the inconsistency is still stark. At least in so far as recklessness is concerned, the House of Lords has now embraced the notion of subjectivity again in R v G 2003 4 All ER 765, but the very fact that the legal de? ition of such a basic concept can change so much in the space of 20 years is itself startling. The Law Commission has long argued that the solution lies in codifying the law (see Law Com. No. 143) on the basis that the criminal law could then exhibit a uniform approach to all crimes and defences. All other major European countries (France, Germany, and Spain) have a detailed criminal code, with a uniform approach providing a starting point for interpreting the law. The criminal law in England and Wales has developed in a piecemeal fashion, with one offences development showing little consistency with anothers.So often it is dif? cult to say what our law actually is, even before lawyers start to debate how it should be applied, e. g. , R v Savage R v Parmenter 1992 1 AC 699, interpreting (after over 130 years of use) the provisions of the Offences Against the Person Act 1861. A code could be expressed in clear language with de? nitions of fundamental concepts such as intention and recklessness, as suggested by the Law Commissions Draft Criminal Code although, as the former chairman of the Law Commission Justice Henry Brooke stated (1995 Crim LR 911) zero in their right mind would want to put the existing criminal law into a codi? d form. Often the criminal law follows a logical approach in its application but as it does not exist in a vacuum and is not simply the application of academic principles, policy considerations sometimes have to prevail. As Lord Salmon stated in DPP v Majewski 1976 2 All ER 142, regarding the defence of intoxication, the answer is that in strict logic the view intoxication is no defence to crimes of basic intent cannot be justi? ed. But this is the view that has been adopted by the common law which is founded on common sense and experience rather than strict logic. Policy considerations ar e also behind s. (3) of the Criminal Attempts Act 1981, whereby in the offence of attempt, the facts are to be as the accused believes them to be. Thus an accused, objectively viewed, may appear not to be committing a criminal act but because they believe they are, they can be guilty of attempting to commit that criminal act, as in R v Shivpuri 1986 2 All ER 334. There is often no means of predicting which approach will prevail. In Jaggard v Dickinson 1980 3 All ER 716, the accused, who had been sensible by her friend X that she could break into Xs house to shelter, while drunk mistakenly broke into Vs house.She was charged with criminal damage under s. 1(1) of the Criminal Damage Act 1971, but argued that she had a lawful excuse under s. 5(2) of the Act as she honestly believed that she had the owners consent. Although the prosecution contended that this was a crime of basic intent and therefore drunkenness was no defence (citing the 28 The elements of a crime actus reus and mens rea House of Lords decisions of Metropolitan Police Commissioner v Caldwell and DPP v Majewski in support), the Court of Appeal quashed her conviction, giving priority to the statutory provision of s. (2) of the 1971 Act. One important aspect of the criminal law process in recent years, which has caused uncertainty, is the character reference of the House of Lords in changing the criminal law. Clearly judges are there to say what the law is, not what it should be but Lord Simon in DPP for Northern Ireland v Lynch 1975 1 All ER 913 said I am all for recognising that judges do make law. And I am all for judges exercising their responsibilities boldly at the proper time and placewhere matters of social policy are not involved which the collective wisdom of Parliament is better suited to resolve.Thus in R v R, the House of Lords changed the law of rape, by abolishing the husbands defence of marital rape immunity without waiting for Parliament to implement the Law Commissions recommenda tions. However, their Lordships took the opposite view in R v Clegg 1995 1 All ER 334, where they refused to follow the Law Commissions suggestion that a person who was entitled to use force in self-defence but who used unreasonable force, thereby killing the victim, would be guilty of manslaughter, not murder.Lord Lloyd stated I am not adverse to judges developing law, or indeed making new law, when they can see their way clearly, even where questions of social policy are involved. A good example is R v R. But in the present case I am in no doubt that your Lordships should abstain from law making. The reduction of what would otherwise be murder to manslaughter in a particular class of case seems to me essentially a matter for decision by the legislature. It is dif? cult to appreciate the essential remainder in issues in these two cases, despite Lord Lowrys justi? cations in R v Clegg that R v R dealt with a speci? act and not with a general principle governing criminal liability. Clearly there is a difference in opinion amongst the Law Lords as to the correct application of these principles. This is well illustrated by the House of Lords decision in R v Gotts 1992 1 All ER 832. The majority decision not to allow duress as a defence to attempted murder was on the basis that duress was no defence to murder. The minority view to the contrary revealed a different analysis. They argued that duress is a general defence throughout the criminal law with the exceptions of the offences of murder and treason.It is for Parliament, and not the courts, to limit the ambit of a defence and as attempted murder is a different offence to murder, duress must therefore be available. It is submitted that these are the main reasons why the development and application of the criminal law is often uncertain and unpredictable. There are other factors, such as whether an issue is a question of law for the judge or fact for the jury, e. g. , the meaning of administer (R v Gillard (198 8) 87 Cr App R 189) the dif? culty in ascertaining the ratio decidendi of many cases, e. g. R v Brown 1993 2 All ER 75 (consent) and the possible effect of the decisions of the European Court of Human Rights. But it is the lack of a code and uniform principles which are the main factors causing the inherent uncertainty. The elements of a crime actus reus and me