Actus Reus & Mens Rea

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Actus Reus ­ Mens Rea
The traditional starting point for the study of criminal law is the constituents of a criminal offence:
actus reus (often referred to as the prohibited conduct, but more accurately described as the
external elements of the offence) and mens rea (often referred to as the mental element, but more
accurately described as the fault element). Commentators and students alike want to find
consistency and certainty in the application and development of the criminal law, and most criminal
law textbooks dealing with the elements of crimes try to state principles that the student should see
consistently applied in later chapters covering specific offences. The main problem is that the
offences have developed in a piecemeal fashion, exhibiting no underlying rationale or common
approach. Thus in examining actus reus, the student might be covering an offence defined in modern
terms, e.g., by the
Criminal Damage Act 1971, or in obscure outdated language, e.g., in the Offences Against the Person
Act 1861 or -- the definition of actus reus may arise from the common law,perhaps amended or
augmented by statute, e.g., murder. Similarly, when we examine our approach to mens rea, we can
see little common ground.
If the offence requires the prosecution to prove intention, this must generally be left to the jury
without detailed guidance from the trial judge (R v Moloney [1985] 1 All ER 1025); but if recklessness
is the issue, a direction spelling out to the jury what they must find may be required. Prior to the
decision of the House of Lords in R v G [2003] 4 All ER 765, a case involving criminal damage would
have involved a court in trying to assess whether the defendant was reckless according to the
definition laid down in Metropolitan Police Commissioner v Caldwell [1981] 1 All ER 961. But now,
following the abandonment of `Caldwell recklessness', the issue has been simplified so that a court
now has to concentrate on whether or not the defendant was aware of the risk in question. If
dishonesty is the mens rea (see Theft Acts 1968­1996) the jury must consider two specific questions
(would ordinary people consider D dishonest?; if so, did D realise that they would?); but these are
questions of fact for them to resolve (R v Ghosh [1982] 2 All ER689). In other words, there are three
different approaches in establishing the mens rea for different offences. A search for consistency is
therefore a futile exercise!Students should therefore be aware that studying the chapters on actus
reus and mens rea can produce a distorted impression of the criminal law. One is dealing with
concepts in isolation and could form the impression that these general principles are consistently
applied. One particular criticism is that the criminal law is not consistent in applying objective or
subjective tests for liability. Objective tests consider what the reasonable person would have
foreseen. Subjective tests judge the defendant on the facts as he honestly believed them to be.
There appears to be an absence of any underlying rationale and the offences develop independently
of each other. One can understand why Sir Henry Brooke (former head of the Law Commission) and
many others wish for codification of some, if not all, of the criminal law (see [1995] Crim LR 911 --
`The Law Commission and Criminal Law Reform').
Even established concepts that have been applied by the courts for many years, may suddenly come
under attack and be interpreted differently by the judiciary. Thus the House of Lords in
Attorney-General's Reference (No. 3 of 1994) [1997] 3 All ER 936, reversed the Court of Appeal
decision ([1996] 2 WLR 412), holding that the doctrine of transferred malice could not apply to
convict an accused of murder when he deliberately injured a pregnant woman in circumstances
where the baby was born alive but subsequently died. Lord Mustill criticised the doctrine as having

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Criminal Law Review disagrees with his
view ([1997].
The Law Commission has made many suggestions on most areas of the substantive criminal law, and
it is helpful to be aware of their views as they highlight the defects and anomalies in the existing law.
However, when answering problem questions, the examiner will want you to cover the existing
principles, stating what the law actually is rather than what it should be.…read more


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