Actus Reus
Anatomy of a Crime and Actus Reus
Structure of Criminal Law
Criminal law is a unique method of social control because it is backed up by the
threat of state imposed sanctions.
One of the key principles is that you can’t be charged, and potentially convicted and
punished for something that was not a crime at the time you perform the act.
Nullum crimen sine lege – no crime without law.
Human rights law has a limited impact on substantive criminal law.
Art 7 ECHR – no punishment without law (ratified into domestic legislation
after the Human Rights Act 1998).
1. Prohibition on retrospectivity.
Can’t be punished for something that wasn’t a crime at the
time of the act, even if the behaviour was only criminalised
shortly thereafter.
New crimes do not apply retrospectively.
R v R (1991).
o The defendant had been convicted of a sexual offence
in relation to his estranged wife.
o Argued that the law had been used retrospectively
against him.
o Historically, there had been an exemption in relation to
marital relationships in that marriage was presumed
consent to sexual activity.
o In this case, the couple were separated, and was held
that this marital exemption is outdated and shouldn’t
apply, and the defendant should’ve been aware of
that.
o Even though at the time the behaviour occurred there
was a marital exemption, the House of Lords said that
doesn’t exist anymore and upheld the conviction.
SW v UK (1995).
o ECHR upheld the ruling in the case of R v R and stated
by the time that behaviour had occurred, this marital
exemption in relation to consent was already
considered fictitious and therefore was no longer
applicable in the cases.
o ECHR would go against Article 7 where society
demands it.
, 2. Fair warning.
Somebody should be able to find out what the law says so that
they can comply and avoid accidental non-compliance.
Law must be capable of being found and identified.
Legislation.gov.
Chambers.
o Updates to some regulations on taxes, and import
taxes.
o Updates were not widely published.
o Court held that there must be a practical way in which
a person could have found out about the law.
o If a person cannot practically find out what the law
says, then it amounts to a profoundly unsatisfactory
state.
o It is a matter of constitutional importance that the law
should be readily accessible.
3. Strict interpretation.
Any ambiguity in the legislation should be narrowly
interpreted by the court.
Any ambiguity should be resolved in a way that favours the
defendant, particularly given the very coercive nature of
criminal law.
Structure of Criminal Offences
A person is not criminally liable unless the prohibited act coincides with the
prescribed state of mind.
1. The physical action – actus reus.
2. The mental element – mens rea.
Generally, we need both actus reus and mens rea present for a criminal
offence to have been committed.
Actus non facit reum nisi mens sit rea.
3? Absence of a valid defence.
Strict liability offences.
There cannot be liability without an actus reus.
There can be a liability without a mens rea.
Potentially useful in setting out expected behaviours.
Tend to be regulatory type offences where the aim of them is to make
behaviour safer.
About raising a standard of behaviour of people who engage in
activities where the public could be placed at risk.
o Health and safety legislation.
o Food safety legislation.
, Proving the commission of an offence:
Burden of proof.
Always lies with the Crown Prosecution Service (CPS).
Have to prove each element of the offence – actus rea and
means rea coinciding, and that there is not a valid defence to
the allegation.
Put forward the evidence to prove each of the elements.
Standard of proof.
Beyond a reasonable doubt.
Mens Rea
The criminal state of mind.
Can be (most to least blameworthy):
Intention.
Purpose.
Where the accused wishes to perform the act or to bring
about the harm.
Useful for more serious offences.
Tends to merit more severe punishment.
Foresight of certainty.
Committing a crime in order to claim insurance.
Purpose is to claim insurance, but harm may be caused whilst
doing so, and they are certain this will happen when they carry
out this crime.
Recklessness.
Taking an unreasonable and foreseeable risk of a proscribed harm.
Specific intent.
Negligence.
Generally, is insufficient of itself as there is no foresight of risk of
harm.
Inadvertently taking an unjustifiable risk.
Degree of awareness that is involved.
The basis for civil compensation through tort law, but not for
criminalisation and punishment.
Objective form of liability.
Defences
A third element?
Not just an afterthought.
Something to be considered once issues to do with actus reus and mens rea
are resolved.
Generally, three types:
Negate a definitional element of the offence.
A defendant is actually saying that a crucial part of the prescribed
behaviour is missing, so therefore the behaviour doesn’t in fact
amount to a crime.
Anatomy of a Crime and Actus Reus
Structure of Criminal Law
Criminal law is a unique method of social control because it is backed up by the
threat of state imposed sanctions.
One of the key principles is that you can’t be charged, and potentially convicted and
punished for something that was not a crime at the time you perform the act.
Nullum crimen sine lege – no crime without law.
Human rights law has a limited impact on substantive criminal law.
Art 7 ECHR – no punishment without law (ratified into domestic legislation
after the Human Rights Act 1998).
1. Prohibition on retrospectivity.
Can’t be punished for something that wasn’t a crime at the
time of the act, even if the behaviour was only criminalised
shortly thereafter.
New crimes do not apply retrospectively.
R v R (1991).
o The defendant had been convicted of a sexual offence
in relation to his estranged wife.
o Argued that the law had been used retrospectively
against him.
o Historically, there had been an exemption in relation to
marital relationships in that marriage was presumed
consent to sexual activity.
o In this case, the couple were separated, and was held
that this marital exemption is outdated and shouldn’t
apply, and the defendant should’ve been aware of
that.
o Even though at the time the behaviour occurred there
was a marital exemption, the House of Lords said that
doesn’t exist anymore and upheld the conviction.
SW v UK (1995).
o ECHR upheld the ruling in the case of R v R and stated
by the time that behaviour had occurred, this marital
exemption in relation to consent was already
considered fictitious and therefore was no longer
applicable in the cases.
o ECHR would go against Article 7 where society
demands it.
, 2. Fair warning.
Somebody should be able to find out what the law says so that
they can comply and avoid accidental non-compliance.
Law must be capable of being found and identified.
Legislation.gov.
Chambers.
o Updates to some regulations on taxes, and import
taxes.
o Updates were not widely published.
o Court held that there must be a practical way in which
a person could have found out about the law.
o If a person cannot practically find out what the law
says, then it amounts to a profoundly unsatisfactory
state.
o It is a matter of constitutional importance that the law
should be readily accessible.
3. Strict interpretation.
Any ambiguity in the legislation should be narrowly
interpreted by the court.
Any ambiguity should be resolved in a way that favours the
defendant, particularly given the very coercive nature of
criminal law.
Structure of Criminal Offences
A person is not criminally liable unless the prohibited act coincides with the
prescribed state of mind.
1. The physical action – actus reus.
2. The mental element – mens rea.
Generally, we need both actus reus and mens rea present for a criminal
offence to have been committed.
Actus non facit reum nisi mens sit rea.
3? Absence of a valid defence.
Strict liability offences.
There cannot be liability without an actus reus.
There can be a liability without a mens rea.
Potentially useful in setting out expected behaviours.
Tend to be regulatory type offences where the aim of them is to make
behaviour safer.
About raising a standard of behaviour of people who engage in
activities where the public could be placed at risk.
o Health and safety legislation.
o Food safety legislation.
, Proving the commission of an offence:
Burden of proof.
Always lies with the Crown Prosecution Service (CPS).
Have to prove each element of the offence – actus rea and
means rea coinciding, and that there is not a valid defence to
the allegation.
Put forward the evidence to prove each of the elements.
Standard of proof.
Beyond a reasonable doubt.
Mens Rea
The criminal state of mind.
Can be (most to least blameworthy):
Intention.
Purpose.
Where the accused wishes to perform the act or to bring
about the harm.
Useful for more serious offences.
Tends to merit more severe punishment.
Foresight of certainty.
Committing a crime in order to claim insurance.
Purpose is to claim insurance, but harm may be caused whilst
doing so, and they are certain this will happen when they carry
out this crime.
Recklessness.
Taking an unreasonable and foreseeable risk of a proscribed harm.
Specific intent.
Negligence.
Generally, is insufficient of itself as there is no foresight of risk of
harm.
Inadvertently taking an unjustifiable risk.
Degree of awareness that is involved.
The basis for civil compensation through tort law, but not for
criminalisation and punishment.
Objective form of liability.
Defences
A third element?
Not just an afterthought.
Something to be considered once issues to do with actus reus and mens rea
are resolved.
Generally, three types:
Negate a definitional element of the offence.
A defendant is actually saying that a crucial part of the prescribed
behaviour is missing, so therefore the behaviour doesn’t in fact
amount to a crime.
