Elements of criminal liability

 Actus reus
 Mens rea
 Who can commit a
criminal offence?

Only a person who has the legal capacity to commit a
criminal offence can be the subject of a conviction. So, a
six month-old baby who hits a person in the eye with
its rattle causing injury to that person is unlikely to be
seen as having committed a ‘wrong’, even in a general
sense, and will certainly not be subjected to the criminal
process.
Legal position on children

 As far as children are concerned, there is an
irrebuttable presumption that a child under the age
of 10 years is incapable of committing a criminal
offence.

 Once a child reaches the age of ten they are deemed

to be capable of committing an offence and can be
subject to the criminal process.
 Previous Legal Position
on children

Previous legal position on children

 Until 1998 there was the common law doctrine, of

doli incapax, which meant that there was a
rebuttable presumption that a child between the ages
of 10 and 14 did not have capacity to commit a
criminal offence. This doctrine, however, was
abolished by the Crime and Disorder Act 1998.
General analysis of criminal
offences

 Every criminal offence is made up of a number of
elements, each of which must be proved beyond
reasonable doubt before a defendant can be
convicted of the offence with which he or she has
been charged. A criminal offence might be a
statutory offence, such as theft or it might be an
offence at common law.
 Most offences are now statutory but a few-including
murder and manslaughter remain offences at
common law.
Proof of the ingredients of an
offence

 The burden is on the prosecution to prove beyond
reasonable doubt all of the elements of an offence
with which a defendant is charged -Woolmington
v DPP [1935]. It follows therefore that, whether the
offence is one of strict liability or one which
requires proof of mens rea, if all of the elements of
the actus reus cannot be proved the defendant
cannot be criminally liable, however guilty his
mind is.
Proof of the ingredients of
an offence

Actus non facit reum nisi mensit rea

This means that the intention and the act must coincide
to constitute a crime.

Case:
Thabo Meli v R [1945]
 Thabo Meli v R [1945]

The defendants got the deceased into a drunken state,
then hit him on the head, intending to kill him. They
succeeded in hitting him unconscious, but believing
him to be dead, they threw him over a cliff. He died
from the fall and exposure and not from the beating.
The defendants were convicted. The prosecution only
needed to establish that at some time during the chain
of events, the accused had formed the mens rea for
murder. It was clearly evident in this case.
 Criminal offences

There are four types of criminal offences depending
on the nature of their actus reus:

 Action crimes
 State of affairs crimes
 Result crimes
 Omissions
 Action crimes

 The actus reus here is simply an act, the
consequences of that act being immaterial.

e.g. perjury is committed whenever someone makes a

statement which they do not believe to be true while
on oath. Whether or not that statement makes a
difference to the trial is not important to whether the
offence of perjury has been committed
 State of affairs crimes

 Here the actus reus consists of circumstances, and
sometimes consequences, but no acts – they are
‘being’ rather than ‘doing’ offences.

e.g. In R v Larsonneur where the actus reus consisted

of being a foreigner who had not been given
permission to be in Britain and was found in the
country.
 Result crimes

 The actus reus of these is distinguished by the fact that
the accused’s behavior must produce a particular result
– the most obvious being murder, where the accused’s
act must cause the death of a human being.
 Result crimes raise the issue of causation: the result
must be proved to have been caused by the defendant’s
act. If the result caused by an intervening act or event,
which was completely unconnected with the
defendant’s act and which could not have been
foreseen, the defendant will not be liable.
 Omissions

 Criminal liability is rarely imposed for true
omissions at common law, though there are
situations where a non-lawyer would consider that
there had been an omission but in law it will be
treated as an act and liability will be imposed.

 There are also situations where the accused has a

duty to act, and in these cases there may be liability
for a true omission.
 Actus reus

 Simply put, this refers to the guilty act
 A wrongful act on its own without the
corresponding mens rea cannot usually be criminal
unless the act is one which amounts to an offence
of strict liability.
 An actus reus consists of more than just an act. It
includes whatever circumstances and consequences
are required for liability for the offence in
question, i.e. all the elements of an offence other
than the mental element
 Actus reus

The actus reus of any offence will be found in the
definition of that offence. It will include:

Prohibited conduct on the part of the

defendant
The existence of one or more specified
circumstances
In the case of a result crime, a particular
consequence caused by D’s conduct.
 Supporting case

R v Deller (1952)
D had made what he thought was a false
representation in order to sell his car. In fact the
representation was true. He was charged under the
Larceny Act 1916 with obtaining property (the
purchase price) by false pretences. One part of the
actus reus, the circumstance that the representation he
made was false, was missing. Therefore there was no
liability. The fact that this was purely accidental was
irrelevant.
 Voluntary conduct

 The accused’s conduct must be ‘voluntary’ if he is to incur
liability. It may be involuntary for a variety of reasons:
 Insanity-mental impairment
 Automatism-actions not under the control of his conscious
mind
 Duress-that the accused will be killed if he/she does not
commit a particular offence
 State of affairs cases -some unusual cases cannot be discussed
in terms of voluntary acts and are often referred to as ‘state of
affairs’ cases. These are cases where the actus reus consists of
circumstances and sometimes consequences but no ‘acts’, i.e.
‘being’ rather than ‘doing’ offences.
 Voluntariness

Although the conduct element of the actus reus of an
offence usually requires proof of a positive act on the part
of the defendant, some offences can be committed by an
omission to act.

Whether the prohibited conduct is an act or an omission,

such must be voluntary conduct on the part of the
defendant.
See Viscount Sankey’s ruling in Woolmington, subject to
limited exceptions, the burden was on the prosecution to
prove the defendant’s guilt beyond reasonable doubt.
 Voluntariness cont’d.

Some years later, in the case of Bratty v Attorney
General for Northern Ireland [1961]
Lord Denning said:
No act is punishable if it is done involuntarily: and
an involuntary act in this context… means an act
which is done by the muscles without any control by
the mind such as a spasm, a reflex action or a
convulsion; or an act done by a person who is not
conscious of what he is doing such as an act done
whilst suffering from concussion or whilst
sleepwalking…
 Voluntariness cont’d.

 In order to attract criminal liability a defendant’s
conduct must be voluntary, that is it must be a
willed bodily movement (or lack of action where D
is under a duty to act). For example, if D does not
control his car and it hits something causing
damage, he will not be criminally liable, if the
reason he could not control the car was because, for
example, he was being attacked by a swarm of
bees.
 Voluntariness cont’d.

 Brake failure through no fault of the defendant
would equally give the driver no control over the
situation [Burns v Bidder (1967)]

 Similarly, if the same thing happened because of a

heart attack, or an epileptic fit, his conduct is
involuntary. Where a defendant has no control over
what he is doing, he is said to be acting as an
automaton.
 Automatism

 Automatism is a plea by a defendant that his
actions were not under the control of his conscious
mind, that is, his bodily movements were unwilled
and involuntary.

 Although generally pleaded as a ‘defence’, we

make reference to it here, as a successful plea of
automatism will negate the conduct element of the
actus reus of any offence with which the defendant
is charged.
 Automatism

 ‘Sane automatism’ or simply automatism, is a
complete defence as the defendant is deemed not to
be in any way to blame for what happened. It
makes no difference whether the offence is one
which requires mens rea or is a strict liability
offence as the conduct is deemed not to have been
that of the defendant.
 Automatism

It follows that if the defendant’s conduct is
involuntary, there will equally not have
been the appropriate mens rea for the
offence. Whatever the reasoning, no
criminal liability attaches to the defendant.
 Limits to the defence of
automatism

There are, broadly, three ways in which the courts
have limited the defence of automatism:

1. Where the defendant exercised some control.

2. Where the condition which gave rise to the
automatism can be brought within the ambit of the
rules on insanity.
3. Where there was prior fault on the part of the
defendant.
 Insane automatism

Every man is presumed to be sane, and to possess a
sufficient degree of reason to be responsible for his
crimes until the contrary is proved.
M’ Naghten rules (1843)
 Burden of Proof

The distinction between sane and insane automatism
has an important impact on the burden of proof

Sane automatism
The defendant bears only an evidential burden of
adducing some medical evidence to support the plea of
automatism. The burden remains on the prosecution to
disprove automatism beyond reasonable doubt.
 Burden of proof cont’d.

Insane automatism:

The burden of proof here is on whoever raises the

defence. Where the defendant raises it, the defence
raises the burden of proof on balance of probabilities.
Where it is raised by the prosecution, then the
prosecution bears the burden of proof, the standard
being beyond reasonable doubt.
 Actus reus: Omissions

The conduct element of the actus reus usually
requires proof of a positive act on the part of the
defendant. Although it could be said that we owe
negative duties to others, such as –not to kill them,
not to injure them- there is no general liability for
failure to act under the common law. A stranger, for
example, would not incur criminal liability for
watching somebody drown in a swimming pool even
if that person could have been saved with very little
effort on the stranger’s part.
 Actus reus: Omissions

The stranger would, however, incur criminal liability if he
or she carried out a positive act, such as holding the other’s
head under the water, which caused or contributed to the
death. Either way, the victim has died, but in the situation
where the stranger merely watched the victim drown
without doing anything, the victim would have died in
any event, whether or not the stranger had been there.
 Imposition of liability
for an omission to act

A crime can be committed by omission, but there can be no
omission in law in the absence of a duty to act. The reason
is obvious, if there is an act, someone acts; but if there is an
omission, everyone ( in a sense) omits. We omit to do
everything in the world that is not done. Only those of us
omit in law, who are under a duty to act.

Glanville Williams Textbood of Criminal Law pp. 148-149.

 omissions

There are circumstances where the law does impose
on a person a duty to act. Sometimes, a statute will
specifically state that the actus reus of an offence is
committed by omission, for example, by virtue of
S1(1) of the Children and Young Persons Act 1933 – it
is an offence to willfully neglect a child.
 Is the offence capable of being
committed by omission?

Offences which have been interpreted by the courts as
capable of being committed by omission include
murder and manslaughter. These are common law
offences.
Was the defendant under a duty
to act?

Once it has been established that the offence is
capable of being committed by omission, the court
must determine whether the defendant was under a
duty to act.
The duty, where it exists, is not an onerous one. A
person is not expected to put his or her own life at
risk.
Was the defendant under a duty
to act?

Rather the question that will be considered by the
courts is whether a defendant who was under a duty
to act has discharged that duty to a reasonable
standard. What is reasonable will depend on the
circumstances in each case.
Was the defendant under a duty
to act?

Let us consider the following example. Whereas a stranger may,
without doing anything, watch with interest a person drowning
in a lake, a lifeguard who has been appointed to ensure the
safety of people at, for example, the seaside or in a swimming
pool will be under a duty to act. Although the lifeguard must
discharge any such duty to a reasonable standard, he will not be
expected to put his own life in danger. He would merely be
expected to do that which a reasonable lifeguard would do.
Was the defendant under a duty
to act?

The lifeguard must discharge his duty to a reasonable
standard. What he did or did not do in attempting to
discharge that duty will be judged according to how the
courts consider a reasonable lifeguard would have acted
under the circumstances. It is thus an objective test.
Therefore if a defendant thought that he was doing his
best, if that best was an ‘incompetent best’ it is unlikely to
have been sufficient to discharge his duty.
Was the defendant under a duty
to act?

There is a difference between what we might term
a ‘moral’ duty to act and a ‘legal’ duty to act. No
legal sanction is imposed for breach of a moral
duty- although there might be social upheaval or
pressure. However many legal duties might be said
to have arisen from moral ones.