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Criminal Law subject guide – Lesson 02Wilson, Chapter 4 ‘Actus reus’, Sections 4.1

‘Introduction’, 4.2 ‘Elements of liability’ and4.3 ‘Interrelationship of actus reus, mens reaand defences’.

Essential Listening Audio Presentation on the VLE on Chapter 02

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Who has to prove a criminalcase?

(Burden of proof)

To what extend should thatparty prove the criminal case?

( degree/extent of proof)

The burden of proofof a criminal case iswith the prosecution

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a criminal case has to beproved beyond reasonabledoubt

(Woolmington v. DPP)In special situations the

burden can shift to thedefence

Burden of proof = on theparty that starts thelitigationDegree of proof = on abalance of probability

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What does provinga case mean?

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Several ingredientsgo into the

preparation of a cakeIngredients wouldvary from cake to

cake

SHORTENING AGENT- FAT OIL RAISING AGENT- EGGS BAKING SODA FSOME FORM OF FARINE - FLOOR

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Foundation Structure Roof

Proving the elements of the crimeAn offence or crime consists of

several elements or building blocks.(like the ingredients of a cake)

The prosecution willbe expected to provethese elements

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THE ACTUS REUS& THE MENS REA

The nuts & the bolts of acrime

ACTUSREUS

MENSREA

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Offence definition

Murder Unlawful killing of ahuman being withmalice aforethought

Offence definition

Theft Dishonestlyappropriating propertybelonging to anotherwith the intention ofpermanently deprivingthe other of it

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Offence definition

Rape A person (A) commits an offenceif—(1) he (A) intentionally penetratesthe vagina, anus or mouth ofanother person (B) withhis penis,(2) (B) does not consent to thepenetration, and(3) (A) does not reasonably believethat B consents.

proving murder involves proving both1. There was an unlawful killing of a humanbeing

2. It was done with malice aforethought

Definitionunlawful killing of a humanbeing with malice aforethought

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Proving a case involves proving thefollowing

1. there was an appropriation2. What was appropriated was property3. That the property belonged to someone else4. The appropriation was done dishonestly5. There was an intention to deprive the other

person of the property

Prohibited conduct(external element)Wrongdoing componentPhysical elementACTUS REUS

Prohibited state of mind(internal element)Fault elementMental elementMENS REA

UNLAWUL KILLING OF AHUAMN BEING

MALICE AFORETHOUGHT(WHICH MEANS1.INTENTION TO KILL OR2.INTENTION TO CAUSE

GRIEVOUS BODILY HARM

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WrongdoingcomponentPhysical elementACTUS REUS

Fault element

Mental elementMENS REA

1. There must be anappropriation

2. What is stolen mustbe property

3. It should belong tosomeone else

1.Dishonestly2.Intention to

permanentlydeprive the otherof it

ACTUS REUSof Rape

MENS REAof Rape

1. Intentionallypenetrating thevagina, anus ormouth of anotherperson

2. With the penis3. The other person

does not consent

1.Intentionalpenetration

2. lack of areasonable beliefthat the otherperson is notconsenting

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Where’s theACTUS REUSand theMENS REA

Definition

Where’sthedefinition

Statute orcommon

law

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Definition is in Statute

e.g Theft [ Section 1(1) ]Theft ActRape [ Section 1(1) ] Sexual Offences Act

Common lawMurder – definition tracedto writings of Chief JusticeSir Edward Cooke (1552-1634)

The package of behaviourwhich the law prohibits.”

It’s a Package of 3 – C’sIt includes

1. The defendantsconduct

2. Circumstances3. Result /consequences

ConductCircumstancesresult

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(conduct can be an act /Omission) In Murder – an act/omission which causes

the death of the victim In Theft – appropriating In Rape – internationally penetrating the

anus , mount or vagina with the penis In Criminal damage – any act/omission that

destroys or damages property

In Murder – the person dying In Criminal damage – the property getting

destroyed or damaged

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In Murder – the person killed must be ahuman being

In Theft – the property stolen must belongto someone else

In Rape – Victim does not consent In Criminal damage – 1. the property

destroyed or damage must belong tosomeone else 2. there should not be a lawfulexcuse to destroy/damage property

Prosecution must prove all theelements of the actus reusbeyond reasonable doubt

They must prove all 3 C’sconductcircumstancesconsequences

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Serious crimes- require proof that the accusedwas blameworthy in doing what he did (state hasa moral authority to punish its citizens only ifthey deserve it) [theory of retribution]

if you deliberately break the window of thelecture hall the, cfps might punish youseverely but if you break it accidently theymay take a light view of it on the basis that itis not fair to punish you. ( can you relate thisto the above theory?)

blameworthy states of mind commonlyused to justify punishment (Mens rea)

IntentionRecklessnessWillfulnessKnowledge Belief

&Negligence ( this is not a form of mens rea)

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PreventionDeterrence

Utilitarian's ( those who believe that the bestmoral action is the one that maximizes utility)reject- punishment is deserved ( 2 wrongsdon’t make a right) they feel punishmentshould be for prevention and deterrence.

Modern view which favours retribution-serious crimes require D to be conscious of hiswrongdoing. ( here prevention cannot bejustified)

Criminal attempts – no unanimity with regardto correct the theory that should applyOffences where prevention rather thanmoral wrongdoing as their primary focus

These offences often have1. a fault element which requires noconscious awareness of wrongdoing (careless driving, gross negligence mans2. No fault element at all ( strict liabilityoffences )

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What, in your opinionis the best theory ofpunishment?

Reflect a conscious attitude of the accusedto what the are doing

They are aware of what they are doing.They not only know that they are doingwrong but do it nevertheless(So they deserve to be punished)

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They block criminal liabilityAlthough the elements of the offences

may be present.This is the 3rd element of criminal

liability.

Insanity duress

self defence

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1st moral claim- to avoidliability

2nd moral claim- to avoidliability

What the accused did is wrongbut it is unfair to punish him.

This is because they were, indeprived of ‘the capacity or afair opportunity to conform’ tothe prohibition ( H.L.A Hart)

e.g. duress and insanity

These defences are excuses( conduct is excused)

What the accused was notwrongful. This is because of thespecial circumstances.

e.g. self defence

These defences arejustifications. ( conduct isjustified)

In addition to proving the actusreus & the mens reaThe prosecution will have to prove

that the defendant has no defence.Such a situation would arise only if

the defendant is relying on adefence

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when analysing a case is always therefore toask the following questions in the followingorder.1. Has the accused performed a prohibited

act?2. Was that act accompanied by a specified

state of mind or mental element?3. Does the defendant have a defence

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Self defence necessityDuress consent Automatism insanity

actus reusmens raDefinition

So if an element of the offence definition is notpresent but the accused does not know thiswhen they are acting, they still escape liability.

if A has intercourse with B believing that she isnot consenting when in fact she is consenting Ais not guilty of rape, since one of the basicelements of the offence (actus reus) is absent( D is getting aquitted not because hesucceeds in the defence of consent butbecause the circumstance element of theactus reus is not established)

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Dadson’s case – activity 2.1 of the subjectguide (page 15). For facts read Wilson(textbook) 4.3

Wilson says it fair to convict Dadson. Doyou agree?

Dadson shot a person attempting to escapewith stolen goods ( this is unlawful)

Not unlawful to shoot a felon in similarcircumstances

Dadson didn’t know victim was a felon

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If the defendant is relying on a defence – heshould be aware of the circumstances ( if nothe wont be able to succeed in the defence)

If the defndant is arguing that the actusreus /mens rea is not established D will havethe right to get an acquittal although he wasnot aware of the circumstances

If the defendant is relying on a defence –there must not only be a good reason for theaccused acting as they do, but also theaccused must act for that reason ( if not hewont be able to succeed in the defence)

If the actus reus /mens rea is not presentand the D does not know this D will have theright to get an acquittal

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A crime

Actusreus

Mensrea

CONDUCT CIRCUMSTANCES CONSEQUENCES

Act orOmission

Situationalcrimes

Causation

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