DISCLAIMER: all information in these module reviews is taken from our own notes and research so please do not cite this in your work.
Welcome to the fifth instalment of our Module Reviews!
Our current focus now turns to Criminal law, with this Review covering the basic foundations of actus reus, mens rea and causation. This is a brief summary intended to give a basic overview of the topic for those beginning their journey into Criminal law. Throughout this Review, I have cited criminal cases as authority for much of the information given, which you can find italicised throughout.
Background
In determining whether a person has committed a crime, a basic formula can be applied in most situations:
Actus reus + mens rea - a defence = a crime.
But what do these phrases mean? The actus reus can be summarised as the external elements and acts of a crime, such as the physical killing in the case of murder. Alongside this, we also need the mens rea, often referred to as the guilty mind behind the crime; again, using the example of murder, this might be the intention to kill. However, we cannot satisfy the requirements of a crime if there is a defence, such as intoxication, insanity or self-defence, present – we will come to some of these in the following weeks.
Actus Reus
Actus reus = the external elements and acts of a crime.
All crimes require some form of actus reus (R v Deller), therefore understanding the requirements behind the actus reus is key in establishing whether someone has committed a crime.
However, it is important not to be deceived by the word ‘actus’ – yes, literal acts such as stabbing a person typically form this, but omissions (a failure to do something) are also included within the actus reus where the defendant is under a duty to do something but fails to do that thing. Here are some real-life examples of where omissions may fulfil the actus reus of a crime.
Where there is a special relationship between the defendant and the victim.
R v Gibbins and Proctor – relationship between parent and child. Gibbins and his mistress, Proctor, lived with their children and Gibbins’ child from his previous relationship. The child from the previous relationship was severely neglected under the care of Gibbins and Proctor and starves to death. Both Gibbins and Proctor were tried and convicted of murder – they owed a duty to the child within the special relationship and failed to fulfil this.
Where the defendant has assumed responsibility for the victim.
R v Gibbins and Proctor – see the above facts. Whilst Proctor was not the child’s mother, thus did not have a special relationship with the victim, she was still convicted on the basis that she had assumed responsibility for the child.
Where the defendant is under a duty imposed by contract or an official duty.
R v Dytham – Dytham was a police officer on duty by a nightclub, who failed to intervene with a violent incident between a man and a bouncer, which resulted in the man’s death. Dytham was convicted of misconduct in that he had failed to perform his duty to preserve peace.
Where the defendant has created a dangerous situation.
R v Miller – Miller was squatting in a building and accidentally set fire to a mattress when falling asleep with a cigarette in his hand. He did not put out the fire and was subsequently convicted of arson by omission.
Key Debate: should we impose a duty of easy rescue?
Mens Rea
Mens rea = the fault element / ’guilty mind’ needed to establish an offence.
Before looking at how mens rea is established, it should be noted that this is not the specific reasons for committing an offence, but rather the mindset of the defendant in committing it. This can be broken down into three key types, which we will discuss in more detail – it should also be noted that the mens rea required for every crime is different depending on what that crime is.
(1) Intention
Intention = ‘a decision to bring about, in so far as it lies within the Accused’s power, [a prohibited consequence], no matter whether the accused desired that consequence of his act or not’ (R v Mohan, Lord James).
Within this definition, there are two key types of intention.
Direct intention is, as the name suggests, where the defendant directly intends the consequence of their actions. However, indirect/oblique intention is more of an unclear concept – under the current precedent set in R v Woolin, the jury may find that the defendant had indirect intention if the consequence was a virtual certainty and the defendant appreciates that this is the case.
Key debate: should foreseeing consequences as a virtual certainty equal intent (known as the ‘definitional approach’), or merely provide some evidence of intent (the ‘evidential approach’)?
(2) Recklessness
Recklessness = the defendant was aware of an unjustifiable risk yet took it (R v Cunningham).
Previously, there were two types of recklessness – subjective, as laid out above, and objective, where the defendant creates an obvious risk, either gives no thought to the risk or sees the risk, but takes it (R v Caldwell), however this has subsequently been overruled (R v G and Another).
(3) Negligence
Negligence = a failure to exercise the care and caution a reasonable and prudent person would ordinarily exercise.
This is assessed objectively on the basis of a reasonable person. For example, if the defendant considers a risk but rules it out, they will be negligent if the reasonable person would not have ruled out the risk.
Causation
Whilst not a necessary ingredient for all offences, many crimes require a causation element, that is to show a causal link between the defendant’s conduct and the prohibited result. There are two key stages to establishing causation:
(1) Factual Causation
The universal test required for factual causation is typically referred to as the ‘but for’ test – but for the defendant’s conduct, would the result have occurred?
In R v White, the defendant put cyanide in his mother’s drink with the intention to kill her. Before drinking the poison, she had a heart attack and passed away. The question was whether, but for the defendant putting the poison in his mother’s drink, would she have died? It was held that the woman would have died regardless of the poison being but in the drink, thus factual causation could not be established for the purposes of murder.
(2) Legal Causation
Legal causation is merely a question of whether the defendant’s conduct was the “operating and substantial cause” of the consequence (R v Smith) and more than an “insubstantial or insignificant contribution” (R v Cato).
Whilst this is often a straight-forward question, novus actus interveniens (intervening acts) may break the ‘chain of causation’ and give rise to argument that the defendant’s conduct was not the legal cause of the consequence – some of these are illustrated below.
Novus Actus Interveniens (Intervening Acts)
Natural events – sometimes, naturally occurring events may break the chain of causation. However, if the event is foreseeable, the defendant will still be liable. Perkins (1946) gives the example of the defendant knocking the victim unconscious in a building, and later that building collapsing in an earthquake and killing the victim – this would obviously be unforeseeable. Conversely, if the defendant were to knock the victim unconscious on the seashore and leave them in imminent peril of an incoming tide, the victim drowning is likely to be foreseeable, thus the chain would be unbroken.
Medical cases – sometimes medical treatment may break the chain of causation, but only where the treatment is ‘so independent and potent’ in causing the consequence that it makes the defendant’s conduct insignificant (R v Cheshire). For example, in R v Smith, the defendant received ‘thoroughly bad’ treatment for wounds suffered during a fight and subsequently died. However, the wounds were found to be still an operating and substantial cause of death and the medical treatment did not break the causal chain.
‘Eggshell Skull’ – the ‘eggshell skull rule’ requires that, if the victim has a condition which makes the prohibited consequence more likely (for example, as the name suggests, an eggshell skull), the defendant cannot claim that this breaks the chain of causation – the defendant must take the victim as they find them. In R v Blaue, the defendant stabbed a woman and she was subsequently taken to hospital. The woman was a Jehovah’s witness and refused a life-saving blood transfusion on the basis of her religion. It was held that this refusal could not break the chain of causation, the defendant had to take the victim as they found them, and ‘this means the whole man not just the physical man’.
Thank you for reading this weeks’ Module Review! In part two, we will take a look at murder, as well as two partial defences to murder under the umbrella of voluntary manslaughter – diminished responsibility and loss of control.
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