Actus Reus, Mens Rea
Introduction
Nature and development of criminal law
- Criminal law: a body of rules listing the various criminal offences, identifying the ingredients thereof (including
common elements such as general defences) and specifying the potential punishment.
- The only remedy in primitive law for offences such as homicide, wounding, rape, theft, etc, was self-help. As
society developed, self-help was replaced by a system of enforced payment of compensation. The harmed
victim was entitled to compensation from the wrongdoer. Such offences were thus not perceived as public
wrongs affecting society as a whole. Only the victim or his or her kindred had sustained a loss and was entitled
to have this loss made good.
- However, it was later realised that such wrongdoing had implications beyond the simple harm
sustained by the victim.
- A crime is a public wrong in the sense that the public at large is affected by it.
- E.g. crime of rape:
- This harms more than just the victim, as society is threatened and is made less secure by the
rape (knowing that there is a possibility that the rapist could strike again). Accordingly, society
is not prepared to leave the matter to the victim to seek compensation.
Culpability: blameworthiness.
- The present distinction between murder and manslaughter is based very largely on the different degrees of
blame attached to the defendant.
- A proper judgment of their moral guilt necessitated an exploration of their state of mind. Emphasis began to be
placed on the mental element in crime (the concept of mens rea began to develop in English criminal law).
- Once the concept of blame or culpability was established in the law, it was inevitable that sooner or later the
broad offences would be subdivided so as to reflect the different degrees of blame involved.
- Homicide is divided into two main categories: the division is based primarily on the presence of absence of
“malice aforethought”—an indicator of a special degree of blame.
- Malice aforethought: the intention to kill a person, and it is immaterial whether there was in mind either
no particular person or a different person from the one killed; also includes an intention to do an act
likely to kill from which death results.
- The element of mens rea in the crime of murder
Criminal offence distinctions:
i. Distinction between serious arrestable, arrestable, and non-arrestable offences (Police and Criminal Evidence
Act 1984).
- The distinction refers to the power given to the police to arrest offenders without a warrant and the powers to
detain them for an extended period of time.
ii. Crimes are classified as being summary offences, indictable offences, or offences triable either way (Criminal
Law Act 1977).
- A summary offence: one that must be tried by a magistrates’ court; there is no jury in such courts.
- An indictable offence: one that must be tried in the Crown Court where the trial is by jury.
- A Crown Court deals with serious criminal cases (e.g. murder, rape, roberry).
- An offence triable either way: one that allows magistrates to try the case if they feel that is appropriate and if
the defendant agrees.
- Criminal proceedings differ in several respects from civil proceedings.
- While any citizen can bring a criminal prosecution, it is normally handled by the police and the Crown
Prosecution Service.
- Generally, there is no time limit for criminal proceedings.
- The procedure, rules of evidence, and rights of appeal are very different from civil proceedings.
, Punishment and sentencing
- Convicted offenders become liable to censure and stigmatic punishment.
- Four most commonly stated purposes of punishment: retribution, deterrence, incapacitation, rehabilitation.
- Statutes specifying terms of imprisonment are laying down maxima.
- E.g. theft: punishable by a maximum of seven years’ imprisonment; the judge can impose any period of
imprisonment up to this maximum.
- For many of the more prominent offences, there are now sentencing guidelines to provide guidance to
sentencers as to the type of sentence and length thereof.
Constructing Criminal Liability
Introduction
I. Values
- The criminal law sets standards that largely reflect community values of what is wrong and harmful.
- By setting these standards and punishing those who do not conform to them, lawmakers hope to strengthen
respect for the standards and encourage people to comply with them.
II. Elements of an offence
- In order for an individual to be found liable for any offence, three elements must be satisfied:
a. Actus reus — there must be a guilty conduct by the defendant.
b. Mens rea — the defendant must have a guilty state of mind.
c. There must be no valid defence.
III. Communicating the values: fair labelling
- Robinson (1997) has proposed that the criminal law be subdivided into two codes.
- The Code of Conduct: addressed to the general public; declares in broad terms that certain conduct is
prohibited.
- E.g. “You may not cause bodily injury or death to another person.”: the public and potential
wrongdoers need to know this in order to adjust their conduct to avoid the prohibition.
- The Code of Adjudication: addressed to the personne; of the criminal justice system, would contain the
technical rules governing the precise boundaries of criminal liability.
- This code would also grade the seriousness of the offence and lay down the appropriate level of
punishment.
- Criminal offences should be categorised and labelled to capture the rejection of the activity involved.
- While the prime function of fair labelling is communication with the general public, it is equally important that
wrongdoers understand the allegations against them so they know how to respond to them.
- In the U.S., many offences are divided into different degrees. However, the problem with this approach is that it
can lead to over-specificity and a bewildering array of offences.
- A compromise between the two extremes of generalisation and over-specificity is needed.
- Traditionally, offences have been grouped into “families of offences” (Gardner, 1998).
- The main criterion used in this broad categorisation is the harm caused.
- Families of offences:
- Homicide offences;
- Non-fatal offences against the person;
- Sexual offences;
- Property offences;
- Offences against the administration of justice;
- Public order offences.
- Each family of offences comprises various specific offences.
- Criteria for the subdivision:
- Harm;
- Culpability;
Introduction
Nature and development of criminal law
- Criminal law: a body of rules listing the various criminal offences, identifying the ingredients thereof (including
common elements such as general defences) and specifying the potential punishment.
- The only remedy in primitive law for offences such as homicide, wounding, rape, theft, etc, was self-help. As
society developed, self-help was replaced by a system of enforced payment of compensation. The harmed
victim was entitled to compensation from the wrongdoer. Such offences were thus not perceived as public
wrongs affecting society as a whole. Only the victim or his or her kindred had sustained a loss and was entitled
to have this loss made good.
- However, it was later realised that such wrongdoing had implications beyond the simple harm
sustained by the victim.
- A crime is a public wrong in the sense that the public at large is affected by it.
- E.g. crime of rape:
- This harms more than just the victim, as society is threatened and is made less secure by the
rape (knowing that there is a possibility that the rapist could strike again). Accordingly, society
is not prepared to leave the matter to the victim to seek compensation.
Culpability: blameworthiness.
- The present distinction between murder and manslaughter is based very largely on the different degrees of
blame attached to the defendant.
- A proper judgment of their moral guilt necessitated an exploration of their state of mind. Emphasis began to be
placed on the mental element in crime (the concept of mens rea began to develop in English criminal law).
- Once the concept of blame or culpability was established in the law, it was inevitable that sooner or later the
broad offences would be subdivided so as to reflect the different degrees of blame involved.
- Homicide is divided into two main categories: the division is based primarily on the presence of absence of
“malice aforethought”—an indicator of a special degree of blame.
- Malice aforethought: the intention to kill a person, and it is immaterial whether there was in mind either
no particular person or a different person from the one killed; also includes an intention to do an act
likely to kill from which death results.
- The element of mens rea in the crime of murder
Criminal offence distinctions:
i. Distinction between serious arrestable, arrestable, and non-arrestable offences (Police and Criminal Evidence
Act 1984).
- The distinction refers to the power given to the police to arrest offenders without a warrant and the powers to
detain them for an extended period of time.
ii. Crimes are classified as being summary offences, indictable offences, or offences triable either way (Criminal
Law Act 1977).
- A summary offence: one that must be tried by a magistrates’ court; there is no jury in such courts.
- An indictable offence: one that must be tried in the Crown Court where the trial is by jury.
- A Crown Court deals with serious criminal cases (e.g. murder, rape, roberry).
- An offence triable either way: one that allows magistrates to try the case if they feel that is appropriate and if
the defendant agrees.
- Criminal proceedings differ in several respects from civil proceedings.
- While any citizen can bring a criminal prosecution, it is normally handled by the police and the Crown
Prosecution Service.
- Generally, there is no time limit for criminal proceedings.
- The procedure, rules of evidence, and rights of appeal are very different from civil proceedings.
, Punishment and sentencing
- Convicted offenders become liable to censure and stigmatic punishment.
- Four most commonly stated purposes of punishment: retribution, deterrence, incapacitation, rehabilitation.
- Statutes specifying terms of imprisonment are laying down maxima.
- E.g. theft: punishable by a maximum of seven years’ imprisonment; the judge can impose any period of
imprisonment up to this maximum.
- For many of the more prominent offences, there are now sentencing guidelines to provide guidance to
sentencers as to the type of sentence and length thereof.
Constructing Criminal Liability
Introduction
I. Values
- The criminal law sets standards that largely reflect community values of what is wrong and harmful.
- By setting these standards and punishing those who do not conform to them, lawmakers hope to strengthen
respect for the standards and encourage people to comply with them.
II. Elements of an offence
- In order for an individual to be found liable for any offence, three elements must be satisfied:
a. Actus reus — there must be a guilty conduct by the defendant.
b. Mens rea — the defendant must have a guilty state of mind.
c. There must be no valid defence.
III. Communicating the values: fair labelling
- Robinson (1997) has proposed that the criminal law be subdivided into two codes.
- The Code of Conduct: addressed to the general public; declares in broad terms that certain conduct is
prohibited.
- E.g. “You may not cause bodily injury or death to another person.”: the public and potential
wrongdoers need to know this in order to adjust their conduct to avoid the prohibition.
- The Code of Adjudication: addressed to the personne; of the criminal justice system, would contain the
technical rules governing the precise boundaries of criminal liability.
- This code would also grade the seriousness of the offence and lay down the appropriate level of
punishment.
- Criminal offences should be categorised and labelled to capture the rejection of the activity involved.
- While the prime function of fair labelling is communication with the general public, it is equally important that
wrongdoers understand the allegations against them so they know how to respond to them.
- In the U.S., many offences are divided into different degrees. However, the problem with this approach is that it
can lead to over-specificity and a bewildering array of offences.
- A compromise between the two extremes of generalisation and over-specificity is needed.
- Traditionally, offences have been grouped into “families of offences” (Gardner, 1998).
- The main criterion used in this broad categorisation is the harm caused.
- Families of offences:
- Homicide offences;
- Non-fatal offences against the person;
- Sexual offences;
- Property offences;
- Offences against the administration of justice;
- Public order offences.
- Each family of offences comprises various specific offences.
- Criteria for the subdivision:
- Harm;
- Culpability;
