The actus reus must be voluntary, it must have been carried out by some one who has control over his actions. However if they do not have control over their actions they have not committed the actus reus of a crime and so cannot be convicted. An example of this is if some one passes out whilst driving and causes an accident.
The actus reus of omissions is a difficult area to cover. Under English law there is a rule that there is no duty to be a good citizen so therefore this means that usually a person will not be guilty if they fail to act. However parliament can create statutory crimes under which a person can commit the actus reus by failing to act e.g. s.6 Road Traffic Act 1988. There are also exceptions to this rule so that if a person is under a duty to act then a failure to act would make them criminally liable. There are 5 ways in English law in which a person will commit the actus reus of a crime if he fails to act:
- Where there is a duty to act under a contract – R v Pittwood (1902)
- Where a duty exists because there is a special relationship between the parties – R v Gibbins and Proctor (1918)
- Where a duty exists because the defendant has voluntarily accepted responsibility for another – R v Stone and Dobinson (1977)
- Where the defendant has caused a dangerous situation and he has failed to put it right – R v Miller (1983)
- Where a duty exists because of a persons public office – R v Dytham (1979)
However in the case of a doctor if he failed to give medical treatment if the discontinuance of the treatment is in the patients best interest he will not have committed the actus reus.
The mens rea is the mental element of a crime and if it is literally translated then it means guilty mind. The mens rea has got nothing to do with motive. Each crime will have an individual mens rea. In statutory offences the mens rea is often defined by words such as maliciously, intentionally, recklessly and wilfully. There are 3 different blameworthy states of mind which may constitute the necessary mens rea. These are: Intention
Recklessness
Negligence
Intention is the highest level of mens rea and is used for the most serious crimes such as gbh under s.18 Offences against the person act. There are 2 types of intention in law direct and indirect (oblique) intention.
Direct intention is effectively when the accused wants something to happen and intends the consequences of his act. In Mohan (1975) intention was defined as ‘a decision to bring about in so far as it lies within the accused’s power the prohibited consequence’.
Indirect intention is when the accused may also be legally held to intend a result that he did not desire. This can only be done when the result is virtually certain and he realises this and goes ahead any way as decided in the case R v Woollin. Highly likely, likely and probable are not enough to convict some one of this.
Recklessness is a lower level of mens rea than intention is. It is effectively where some one is reckless if they take an unjustified risk of committing an offence. There used to be two types of recklessness: Cunningham recklessness and Caldwell recklessness which was used only for criminal damage. However R v G (2003) the house of lords decided that Cunningham recklessness will be used for all criminal offences.
Gross negligence is the necessary mens rea for manslaughter as used in the case of R v Adomako.
Strict liability is when a crime can be committed and then some one can be convicted without proof of mens rea. An example of this is Larsonneur (1933) where the defendant had no mens rea when committing the offence of ‘being an alien to whom leave to land in the UK had been refused.’ She did not mean to commit this offence but had been brought to the UK against her will.
Strict liability offences are in place to protect something or some one. Some examples of these are to protect the public from unfit food or protect children from buying teenagers and been taken in by gambling. They are used for thing such as the regulation of road traffic.
It is left to the courts to decide if an offence is one of strict liability. To decide if a case is one of strict liability it must be decided if the case is truly criminal or regulatory and if it is then regulatory this then means it is strict liability.
