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Actus reus:
The actus reus can be a voluntary act / omission or ‘state of affairs’.
- Voluntary acts or omissions: actus reus must involve doing something or failing to do
something, the accused must have physical control over what they are doing (Hill v
Baxter / R v Mitchell)
- Omissions; an omission is a failure to act. The usual rule is that an omission cannot
make you guilty of an offence unless there is a duty. Types of duties:
1. Statutory duty; where a statute imposes a duty on a person to act for a
particular purpose and possibly in a particular way (s1 children and young
persons act 1933 / s170 road traffic act 1988)
2. Contractual duty; where a contract imposes a duty to act and there is a failure
to do so which may mean criminal liability is formed (Pittwood)
3. Duty due to relationship; in a close relationship parties may owe each other a
duty (Gibbins and Proctor)
4. Duty undertaken voluntarily; where the actions of the defendant show they
have accepted a duty, even if they may not be aware of it (Stone and
Dobinson)
5. Duty through one's official position; rare duty but due to an official position in
society or through employment you hold a wide ranging duty in connection
with that position (Dytham)
6. Duty through the defendant starting a dangerous chain of events; where D
starts a dangerous situation and then does nothing to stop it (Miller / Santa-
Bermudez / Evans)
Causation:
a. Factual causation; BUT FOR test. D’s conduct was the factual cause of the
consequence (Pagett / White / Hughes)
b. Legal causation; only one cause, more than a slight or trifling link between D’s
actions and the consequence (Kimsey), operating and significant cause of the
consequence (Smith / Cheshire). Thin skull rule - take your victims as your find them
(Blaue / Holland / Dear)
c. Intervening act; must be sufficiently serious and sufficiently independent to break the
chain of causation.
- Act of a third party; must be an operating and substantial cause (Smith /
Cheshire / Jordan / Malcherek)
- Victims own act; reasonably foreseeable and proportionate to D’s action,
daftness test (Roberts / Marjoram / Williams and Davis)
Mens rea:
Definition from the case of Mohan; a decision to bring about the consequences no matter
whether the accused desired that consequence or not, motive is irrelevant.
Direct intent; where D acts deliberately to bring about the specific consequences.
Oblique intent; where D intends one thing but the actual consequence which occurs is
another thing.
,Foresight of consequences (oblique intent); consequences of a virtual certainty
S8 CRIMINAL JUSTICE ACT 1967:
- Just because the jury think that the consequences of D’s actions were a natural and
probable consequence, this does not mean they must infer that his mens rea was
intention or foresight
- What they have to do is look at all the evidence and draw up conclusions from that
- The defendant must realise that the consequences are of a virtual certainty of his
actions (WOOLIN)
- Can only be used for offences where intention is the only mens reas
- Moloney / Hancock and Shankland / Nedrick / WOOLLIN / Matthews and Alleyn)
Recklessness; where the defendant knows there is a risk of the consequences but takes the
risk anyway (Cunningham / Caldwell / Elliot v C / G and another)
Transferred malice; D can be guilty if he intended to commit a similar crime against a
different victim. Can't transfer malice between crimes of different offences, must be the same
mens rea. (Latimer / Gnango / Pembilton)
Coincidence of mens rea and actus reus; the mens rea and actus reus must happen at the
same time, actus reus can be continuing act (Thabo Meli v R / Church / Fagan)
Strict liability:
Strict liability offences do not require the mens rea (Pharmaceutical Society of Great Britain v
Storkwain Ltd)
Nature of strict liability:
- D must have proved to have done the actus reus (Callow v Tillstone)
- D’s conduct must be voluntary (Callow v Tillstone)
- There is no need to prove mens rea for at least part of the actus reus (R v Prince / R
v Hibbert)
- Defence of due diligence (done everything can do) is not available (Harrow LBC v
Shah and Shah)
- Defence of mistake is not available (Cundy v Le Coq / Sherras v De Rutzen)
Strict liability and common law:
1. The presumption of mens rea:
- Courts assume mens rea required at start (Sweet v Parsley)
- Assumes that strict liability would be implied or indicated in statie
- If there is a word denoting mens rea then not strict liability
- After presumption the courts look at other points to decide if the presumption
should be displaced.
2. The gammon tests: (Gammon (Hong Kong) Ltd v Attorney general of Hong Kong)
- Where the presumption is displaced by the words of the statute
- Where the offence is truly criminal in nature
- Issue of social concern
- Promoting enforcement of law
, The gammon tests:
1. The presumption of mens rea can only be displaced if it is clear from the wording of
the act = where words indicating mens rea and used then the offence is not one of
strict liability.
2. The presumption of mens rea is strong where the offence is truly criminal in nature
rather than regulatory (selling food/alcohol) = if there is a sentence of imprisonment
then most likely criminal, the more serious the offence the higher the mens rea.
3. The presumption of mens rea can only be displaced if the statute is concerned with
an issue of public safety = eg food sale, pollution, ‘potential danger to public health,
safety or morals’.
4. Strict liability will only apply if it will help the law by encouraging greater vigilance to
prevent the commission of the prohibited = by being a strict liability does the offence
encourage prevention of the act?
Non-fatal offences:
Common law assault; an act which causes the victim to apprehend the infliction of
immediate unlawful force with either an intention to cause another to fear immediate unlawful
force or recklessness as to whether such fear is caused.
1. An act
2. Causes the victim to apprehend
- not fear
3. Unlawful
- consider consent
4. Immediate force
- Words are sufficient (Constanza)
- Silent calls are sufficient (R v Ireland)
- Must be immediate (R v Lamb)
- If unsure of when force will take place this is sufficient (Smith v CC Woking
Police Station)
- Words can negate threat (Tuberville v Savage)
- Words may not negate threat (Light)
5. An intention to cause another to apprehend immediate unlawful force or recklessness
as to whether such apprehension is caused
- Intention (Mohan)
- Recklessness, realised there was a risk (Cunningham / G and another)
Common law battery; the application of unlawful force to another with either an intention to
apply such force or being reckless as to whether such force was applied.
1. Unlawful force
- Slightest touching in anger (Cole v Turner)
- Slightest touching (Collins v Wilock)
- Attracting someone's attention is not battery (Donnelly v Jackson)
- Touching someone's clothing can be battery (R v Thomas)
- Can be a continuing act (Fagan v Metropolitan Police Commissioner)
- Can be an indirect act (DPP v K; R v Martin)
- Can be an omission (DPP v Santa Bermudez)
2. Force
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