Actus Reus and Mens Rea

Actus Reus and Mens Rea

Every criminal offence (unless one of strict liability) requires two elements: the actus reus (the guilty act) and the mens rea (the guilty mind). These must coincide in time — the coincidence principle.

Actus Reus

The actus reus is the physical element of the offence. It may consist of:

• A positive voluntary act — the defendant must have acted voluntarily. In R v Larsonneur [1933], the defendant was convicted despite being forcibly brought to England; this case is widely criticised. An involuntary act (e.g. a reflex or spasm) does not constitute a voluntary act — see the defence of automatism.

• An omission (failure to act) — English law generally imposes no duty to act. However, criminal liability for omissions arises where a duty to act exists:

Duty	Authority
Statutory duty	Road Traffic Act 1988, s.170 (duty to stop after an accident); Children and Young Persons Act 1933, s.1 (duty of care to children)
Contractual duty	R v Pittwood [1902] — a railway crossing keeper failed to close the gate; convicted of manslaughter
Duty from a relationship	R v Gibbins and Proctor [1918] — parents failed to feed their child; convicted of murder
Voluntary assumption of duty	R v Stone and Dobinson [1977] — defendants took in Stone's elderly sister but failed to care for her or summon help; convicted of manslaughter
Duty from creating a dangerous situation	R v Miller [1983] — a squatter accidentally set fire to a mattress and, realising what had happened, simply moved to another room; convicted of arson for failing to take steps to minimise the damage
Official/public duty	R v Dytham [1979] — a police officer watched a man being kicked to death and took no steps to intervene; convicted of misconduct in a public office

• A state of affairs — in rare cases, the actus reus is simply the defendant's situation or condition. In R v Larsonneur [1933] and Winzar v Chief Constable of Kent [1983] (found drunk on a highway after being placed there by police officers), the defendant's presence in a prohibited state was sufficient.

Causation

Where the actus reus requires a result (e.g. death in murder), the prosecution must prove that the defendant caused that result. Causation has two elements:

Factual causation — the "but for" test:

• "But for" the defendant's act, would the result have occurred? If the result would have happened anyway, the defendant did not cause it.
• R v White [1910] — D put cyanide in his mother's drink, but she died of a heart attack before the poison took effect. He was not the factual cause of death (convicted of attempted murder instead).

Legal causation — the defendant's act must be a "substantial and operating cause" of the result:

The defendant need not be the sole or main cause, but their act must be more than a minimal cause (R v Kimsey [1996]).

The thin skull rule: the defendant must take their victim as they find them. In R v Blaue [1975], the victim (a Jehovah's Witness) refused a blood transfusion that would have saved her life after being stabbed. The defendant was still liable for her death.

Intervening acts (novus actus interveniens):

An intervening act may break the chain of causation if it is sufficiently independent and unforeseeable:

• Medical treatment — only breaks the chain if it is "so independent of the defendant's acts and so potent in causing death" that the defendant's acts are merely part of the history (R v Smith [1959]). In R v Cheshire [1991], negligent medical treatment did not break the chain because the defendant's wound was still an operating cause of death. Only in R v Jordan [1956] (where treatment was "palpably wrong") was the chain broken — but this case is regarded as highly exceptional.
• Victim's own act — must be reasonably foreseeable. In R v Roberts [1972], a girl jumped from a moving car to escape a sexual assault — this was reasonably foreseeable and did not break the chain. In R v Williams and Davis [1992], a hitchhiker who jumped from a car and died — the question was whether the victim's reaction was daft (unforeseeable) or proportionate to the threat.
• Third party acts — R v Pagett [1983]: D used his girlfriend as a human shield; police fired back and killed her. The police response was reasonable and did not break the chain.

Mens Rea

The mens rea is the mental element — the state of mind the prosecution must prove. The main types are:

Intention (Specific Intent)

Direct intention: the defendant's aim or purpose is to bring about the prohibited consequence.

Indirect/oblique intention: the consequence was not the defendant's purpose but was a virtually certain result of the act, and the defendant appreciated this. The leading case is R v Woollin [1999]:

• The House of Lords held that a jury is not entitled to find intention unless the result was a virtual certainty of the defendant's act and the defendant appreciated that this was so
• This replaced the earlier, broader test in R v Nedrick [1986]
• Note: Woollin says the jury may "find" intention — it is an evidential rule, not a definition. The jury retains a degree of moral elbow room (R v Matthews and Alleyne [2003])

Recklessness (Subjective)

Subjective recklessness (R v Cunningham [1957]):

• The defendant foresees a risk of the prohibited consequence
• The defendant unreasonably takes that risk

The old test of objective recklessness (MPC v Caldwell [1982]) — judging the defendant by the standards of a reasonable person — was overruled by R v G [2003]. Two boys aged 11 and 12 set fire to newspapers in a wheelie bin, which spread and destroyed a building. The House of Lords held that a defendant could not be reckless unless they had personally foreseen the risk.

Negligence

Negligence is falling below the standard of a reasonable person. It is an objective standard and is used in gross negligence manslaughter (R v Adomako [1995]) but is not commonly a mens rea standard in criminal law.

Transferred Malice

Under the doctrine of transferred malice (R v Latimer [1886]), if the defendant intends to commit an offence against one person but accidentally commits the same offence against another, the mens rea is "transferred" to the actual victim. For example, D throws a punch at A but hits B — D has the mens rea for assault on B.

However, malice cannot be transferred between different types of offence — R v Pembliton [1874]: D threw a stone at people but broke a window. The mens rea for an offence against the person could not be transferred to criminal damage.

The Coincidence Principle

The actus reus and mens rea must exist at the same time. Courts have used two doctrines to achieve this:

• Continuing act — Fagan v MPC [1969]: D accidentally drove onto a police officer's foot (no mens rea at that point) and then intentionally left the car there. The court held the actus reus was a continuing act, so when D formed the mens rea, the two coincided.
• Single transaction — R v Thabo Meli [1954]: the defendants struck the victim, believing him dead, and threw the body over a cliff. The victim actually died from exposure. The Privy Council treated the whole sequence as a single transaction, satisfying the coincidence principle.

Strict Liability

Strict liability offences require no mens rea for at least one element of the actus reus. The prosecution need only prove the act. Examples include:

• Pharmaceutical Society of Great Britain v Storkwain [1986] — supplying drugs on a forged prescription
• Harrow LBC v Shah and Shah [2000] — selling a lottery ticket to an underage buyer
• Callow v Tillstone [1900] — selling unfit meat

The presumption of mens rea can be rebutted by the statute — Sweet v Parsley [1970] established that the courts will look at whether the offence is truly criminal or "quasi-criminal" (regulatory).

Exam tips:

• Always define both actus reus and mens rea with case authority
• Apply the causation chain methodically: but-for → legal → intervening acts
• Distinguish direct and oblique intention using Woollin
• Apply R v G [2003] for recklessness, noting the overruling of Caldwell