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'Actus non facit reum, nisi mens sit rea '- 'An act does not make a person legally liable unless the mind is legally blameworthy'.

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'Actus non facit reum, nisi mens sit rea ' - 'An act does not make a person legally liable unless the mind is legally blameworthy'. 'Mens rea' or 'blameworthy mind' as one of the essential components of criminal liability is very difficult to define precisely inasmuch as 'blameworthy ' can have a different meaning dependant on the offence. The courts have developed various approaches to clarify the meaning and definition of these required elements in the common law as well as the defences that mitigate or negative mens rea to varying degrees. An act can be completed but no liability falls on the defendant if he can disprove mens rea. Liability may be mitigated partially or completely either by a recognised defence or reasonable mistake. However, there are circumstances where mens rea is found or not required and the defendant is blameless, but liability still conferred. The maxim 'actus non facit reum, nisi mens sit rea' forms the basis for defining the 2 elements that must be proved before a person can be convicted of a crime, the actus reus or 'guilty act' and mens rea or 'blameworthy mind'. In B (a minor) v D.P.P. [2000] 2 AC 428, the appeal court held that "Mens rea was an essential element of every criminal offence unless Parliament expressly or by necessary implication provided to the contrary." There has for centuries been presumption that Parliment did not intend to make criminals of persons who were in no way blameworthy for what they did. That means that whenever a section is silent as to mens rea, there is a presumption that , in order to give effect to the will of Pmt, we must read in words appropriate to require mens rea .. it is firmly established by a host of authorities that mens rea is an essential ingredient of every offence unless some reason can be found for holding that that is not necessary.1 Lord Nichols in B ( a minor)


The defendant's act is compared with the model of a 'reasonable man' in assessing his blameworthiness. This is in direct contrast with precedent in previous years and has since caused defendants to be convicted of offences when strictly speaking they are incomparable with 'reasonable man' on account of their mental capacity. In the case of R. v. Cunningham [1957] 2 All ER 412, CA, the defendant was charged under section 23 of Offences Against the Person Act 1861 with ' maliciously administering a noxious thing so as to endanger life.' The Court of Appeal held that the word 'maliciously' required either intention or recklessness, the latter requiring that the accused had himself foreseen the possibility of the consequence occurring. This subjective view of establishing mens rea continued until Caldwell in 1981. Creating a dangerous situation and failing to give any thought to the possibility of risk is considered to be recklessness. (Caldwell) Lord Diplock defined recklessness in Caldwell as not only recognition of the risk and going on to take it, but also failure to give any thought to the possibility of risk at all, when, if the defendant had thought about it, the possibility of risk would be obvious. The implications of Caldwell in assessing mens rea have caused the judiciary subsequent problems. The subjective test recognised mental incapacity whereas the current objective view somewhat unfairly judges all defendants with the same standard of cognition which is clearly an unrealistic standard. The standard of the 'reasonable man' in assessing blameworthiness was regretted by Goff L.J. in the case of Elliot v C (a minor) [1983] 2 All ER 1005. The Divisional Court considered the backward defendant's appreciation of risk irrelevant and she was convicted, even though her state of mind was not morally blameworthy. Conversely, in the pre-Caldwell case of R v Stephenson [1979] QB 695, CA, the defendant's conviction for reckless arson was quashed because he did not consider or appreciate the risk of damage due to his schizophrenia.


Children under 10 years old are not criminally responsible and those aged over 10 years may be criminally responsible as per s. 34 of the Crime and Disorder Act 1998. The case of M'Naughten (1843) 10 Cl & F 200 established the presumption of sanity. For insanity to be proved, the House of Lords held that " at the time of the committing of the act, the party accused was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing, or, if he did know it, that he did not know what he was doing was wrong".6Automatism negates liability for crimes as the defendant's actions were not voluntary and therefore the mind cannot be legally blameworthy. This includes the actions of the mentally ill and strangely encompasses the actions of diabetics who suffer a hypoglycaemic episode, or sleepwalkers.( R. v. Burgess [1991] 2 QB 92, CA) Automatism is a defence to all crimes including strict liability crimes. In R. v Wheat [1921] All E.R. Rep. 602, Avory J. said that the maxim " actus non facit reus, nisi mens sit rea' was admitted to be " uncertain and often misleading in its application." It is not easy to discern the nature of criminal guilt from English common law. Although the maxim appears to be quite straightforward, on a practical level it would appear that the discernment of mens rea is far from clear. The definitions and jury guidelines for mens rea on intention, recklessness and negligence have in parts, evolved greatly in the last 25 years, which reflects judicial dissention and necessity, in recognising novel circumstances such as terrorism, unique medical cases and development of knowledge concerning mental illness (Thornton). The objective standard by which mens rea is judged can give rise to injustice which is contrary to the maxim. The recognised defences and the concept of mistake provide a partial fail-safe mechanism to exculpate the blameless defendant but as these are laid down in the common law, they too are subject to change as circumstances dictate.

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