General elements of a liability Elements of a Crime

General elements of a liabilityElements of a Crime MENS REA

Actus Reus & Mens Rea • Remember that to be guilty of a crime there needs to be two elements present: • Actus reus –the guilty mind/the physical element. • Mens rea –the guilty act/the mental element • Actus non facit reum nisi mens sit rea – the act itself does not constitute guilt unless done with a guilty mind. • Once both elements are established, the defendant will be found CRIMINALLY LIABLE.

Actus Reus & Mens Rea • For each offence, the required mens rea will be different. • For example, for murder the mens rea is an intention to kill or cause GBH; for assault the mens rea is the intention to cause another to fear immediate or unlawful personal violence or recklessness as to whether such fear is caused. • To be guilty of an offence, the defendant must have at least the minimum mens rea required for the offence.

Mens Rea • There are different levels of mens rea. From highest to lowest they are: • Intention • Recklessness • Negligence

Recklessness • A definition of recklessness: A situation where the defendant knows that there is a risk that his actions will lead to harm but goes on to take the risk regardless. • This is a lower form of mens rea from intention.

Recklessness • Recklessness first arose in the case of CUNNINGHAM (1957). • The defendant tore a gas metre off a wall to steal the money from it. The gas leaked into the next door house (where his prospective mother in law lived). The woman became very ill as a result. Cunningham was charged with “maliciously administering a noxious thing” under the Offences Against the Person Act 1861. He was acquitted because he did not intend to cause any harm and didn’t therefore realise he was taking a risk.

Recklessness • Cunningham. • The Court of Appeal looked at the word ‘maliciously’ and decided that it meant intentionally or recklessly. • They stated that recklessness arose where “the accused has foreseen that the particular kind of harm might be done and yet has gone on to take the risk of it”. • The question was whether Cunningham realised there was a risk of the gas harming anyone and still went ahead with his plan.

Recklessness • The Cunningham case led to what has become known as CUNNINGHAM RECKLESSNESS. • This type of recklessness is SUBJECTIVE as it is based on what the defendant ACTUALLY realised (or foresaw) was a risk at the time of the offence not on what he OUGHT to have foreseen. • (This is as opposed to what a reasonable man would consider to be a risk from looking at the facts which would be a more objective assessment.)

Recklessness • What do you think of the law so far? • Can you see any problems/issues with cunningham recklessness?

Recklessness • As a result of Cunningham, any Act which contained the word ‘maliciously’ was taken to mean ‘recklessly’. • In 1971, the Criminal Damage Act was passed. This Act replaced the Malicious Damage Act 1861 and replaced the word ‘malicious’ with ‘reckless’. However, no clear definition of the word ‘reckless’ was given in the Act so the courts continued to apply the principles in Cunningham.

Recklessness • Stephenson 1979. • Stephenson was a schizophrenic. He was sleeping in a haystack and decided to light a fire to keep himself warm. He caused £300 damage and was prosecuted. The Court held that his schizophrenia prevented him from realising that he had created a risk that would have been foreseen by a reasonable man. • The subjective test was therefore applied – i.e. based on what Stephenson ACTUALLY foresaw.

Recklessness • The courts continued to apply this test until 1982. • The House of Lords decided two cases on the same day: Caldwell (1982) and Lawrence (1982). • The decisions in these cases created a lot of confusion in this area of law for quite a number of years. They led to what is known as CALDWELL RECKLESSNESS.

Recklessness • CALDWELL 1982. • Caldwell was not happy about having been dismissed from his job in a hotel. When he was very drunk he broke a window on the ground floor and started a fire. The fire was put out very quickly and no-one was harmed. Caldwell was charged with criminal damage and convicted.

Recklessness • Caldwell appealed and the case finally reached the House of Lords. • Lord Diplock stated: “that the only person who knows what the accused’s mental processes were at the time of committing the crime is the accused himself and probably not even he can recall them accurately when the rage or excitement under which he acted has passed or he has sobered up if he were under the influence of drink at the end of the relevant time.”

Recklessness • Lord Diplock created a two stage test that someone is reckless under the Criminal Damage Act 1971 if: • 1. He does an act which in fact creates an obvious risk that property will be destroyed or damaged. • (OBJECTIVE TEST – based on what a REASONABLE MAN would have seen was a risk). • 2. When he does the act he either has not given any thought to the possibility of there being any such risk or has recognised that there was some risk involved and has nonetheless gone on to do it. (The SUBJECTIVE TEST from Cunningham).

Recklessness • The decision in Caldwell led to considerable difficulties. • Think back to the Stephenson case. Would a reasonable man have foreseen the risk? Should Stephenson have been convicted? • The decision in Caldwell was heavily criticised but was applied as it was a precedent from the House of Lords. It did, however, cause considerable injustice.

Recklessness • Elliott -v- C (A Minor) (1983). • The defendant was a 14 year old girl with learning difficulties. She was playing with white spirit and matches in a garden shed which was destroyed in the fire that followed. She gave no thought to the risk but was not capable of appreciating the risk anyway due to her learning difficulties. • She was found guilty because the Court was bound by the decision in Caldwell.

Recklessness • Caldwell recklessness continued until R -v- G and Another (2003). • Two boys, aged 10 & 11, entered the back yard of a shop and set fire to some newspapers. They put the newspapers under a wheelie bin and left the premises without checking that the fire had gone out. The fire spread and caused over £1m worth of damage. • The Caldwell precedent was applied by the Crown Court and by the Court of Appeal. However, a further appeal was allowed to the House of Lords.

Recklessness • The point of law put to the House of Lords was: • “Can a defendant properly be convicted under s1 of the Criminal Damage Act 1971 on the basis that he was reckless as to whether property was destroyed or damaged when he gave no thought to the risk, but by reason of his age and/or personal characteristics the risk would not have been obvious to him, even if he had thought about it?”

Recklessness • The House of Lords reversed the Court of Appeal’s decision and therefore abolished the objective form of recklessness. • Personal characteristics of the defendant could therefore be taken into consideration. • Cases like Stephenson and Elliott would now be decided differently as a result.

Recklessness • In order to clarify some of the confusion, the Law Commission’s Draft Code has provided a definition that a person acts recklessly with respect to: • (i) a circumstance, when he is aware of the risk that it exists or will exist; and • (ii) a result, when he is aware of a risk that it will occur, and it is unreasonable, having regard to the circumstances known to him, to take that risk.

Transferred Malice • If a defendant attempts to commit a crime against one person but, in doing so, actually commits a similar crime against someone else, they can still be held guilty of the offence against the actual victim. • Latimer (1886) • The Defendant aimed to hit a man with his belt. The belt recoiled and hit a woman in the face. As both offences were similar, the defendant was found guilty of the offence against the woman.

Transferred Malice • The concept of transferred malice will only apply where the two offences are similar. • Pembliton (1874). • The defendant had been involved in a fight and threw a stone at his attackers. The stone broke a window. The defendant’s intention to hit his attackers could not be transferred to the window.

Coincidence Of Actus Reus & Mens Rea • We have already seen that for a defendant to be found guilty of a crime, the requisite actus reus and mens rea must be proved to have been present simultaneously. However, in certain situations this can prove difficult. • Thabo Meli (1954). • The defendants attacked a man and threw what they assumed was his dead body over a cliff. In fact, he wasn’t dead at that point but subsequently died from exposure. The defendants were convicted of murder. • The Court decided that the actus reus and mens rea were combined in a series of acts.

Coincidence Of Actus Reus & Mens Rea • Church (1965). • The defendant took a woman back to his van to have sex. He couldn’t satisfy her and she laughed at him. A fight followed and the woman was knocked unconscious. Thinking she was dead, Church threw her body in the river where she actually drowned. Church was convicted of manslaughter.

Continuing Act • Where the actus reus is ongoing and the defendant has the necessary mens rea, then the courts have decided that the two elements do coincide and the defendant can be found guilty. • Fagan -v- Metropolitan Police Commissioner (1986). • Fagan drove onto a policeman’s foot. Despite being asked by the policeman to remove his car several times, he refused. Fagan was convicted of assaulting a policeman in the execution of his duty. When Fagan knew the car was on the policeman’s foot the requisite mens rea was present and the actus reus was still continuing.

General elements of a liability Elements of a Crime