'Actus non facit reum, nisi mens sit rea '- 'An act does not make a person legally liable unless the mind is legally blameworthy'.
'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) v. DPP.
Definition of 'blameworthy' is quite wide and is subject to convention and interpretational precedent as laid down in case law by the judiciary. The burden of proof for the mens rea is on the prosecution. The prosecution must prove the defendant had mens rea at the time of the commission of the offence in order to secure a conviction. However, deciding the existence of defendant's mens rea is a matter for the jury.
We have no difficulty in practice making confident assertions about the mental processes in others. We rely on our inferences from observable data. The jury is a representative body of the entire community to safeguard against unfair consideration as a conviction requires unanimous agreement as to mens rea . Peter Brett2
The jury's decision is based on the evidence as perceived by them. If the defendant pleads a defence that negates the MR for the offence, the jury must decide whether they believe the D or whether his testimony is deception.
In Sweet v. Parsley [1970] A.C. 132 , Lord Pearce stated:
If the prosecution have to prove the defendant's knowledge beyond all reasonable doubt, it may be easy for the guilty to escape. But it would be very much harder for the guilty to escape if the burden of disproving mens rea or knowledge is thrown on the defendant.
Interestingly, the Australian high court has evolved a defence of reasonable mistake of fact and the burden of proving this on the balance of probabilities rests on the defendant. Professor Howard discusses the matter in an article, who concludes:
When a statutory prohibition is cast in terms, which at first sight appear to impose strict responsibility, they should be understood as merely imposing responsibility for negligence but emphasizing that the burden of rebutting negligence by affirmative proof of reasonable mistake rests upon the defendant.3
Actus reus and mens rea must coincide for criminal liability. The courts will construe acts in 2 ways; 'continuing acts' and 'one transaction' to satisfy the mens rea for an offence. In Fagan v. Metropolitan Police Commissioner 1969 1 Q.B. 439, the defendant accidentally drove his car over a policeman's foot, but refused to immediately remove the car. It was held that the actus reus was a continuing act and that refusal to move the car was sufficient as subsequent mens rea. Sometimes the courts consider a series of acts as one transaction and liability occurs if there is actus reus and mens rea at some point during the transaction. In Thabo Meli v. R (1954) 1 All ER 373, PC, the Privy Council held that this was a series of planned acts. The mens rea and actus reus had coincided during the series and therefore all the defendants were guilty of murder.
The mens rea varies from crime to crime and is either established by statute or by precedent. Some crimes require knowledge of certain circumstances the crime of receiving stolen goods requires the defendant to know that they were stolen. Some crimes require no mens rea, these are crimes of strict liability. There is a hierarchical structure of degrees of mens rea. These can be summarised as intention, recklessness, knowledge, and negligence.
Although the mere intention to commit a misdemeanour is not criminal, some act is required to make it so.." and added "We do not think that all acts towards committing a misdemeanour are indictable. Acts remotely leading towards the commission of the offence are not to be considered as attempts to commit it but acts connected with it are.
Parke ,B. in delivering judgement in R. v Eagleton 1855 Dears 515, as quoted in R v. Robinson in 1915.4
Intention is the mens rea for many offences both as a general mens rea and a specific ...
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Although the mere intention to commit a misdemeanour is not criminal, some act is required to make it so.." and added "We do not think that all acts towards committing a misdemeanour are indictable. Acts remotely leading towards the commission of the offence are not to be considered as attempts to commit it but acts connected with it are.
Parke ,B. in delivering judgement in R. v Eagleton 1855 Dears 515, as quoted in R v. Robinson in 1915.4
Intention is the mens rea for many offences both as a general mens rea and a specific mens rea ; the mens rea for murder is either to kill or cause grievous bodily harm at the time the defendant carried out the act which caused the death, as stated in the 1957 Homicide Act. Death and direct bodily harm aside, intention can be sufficient mens rea for other offences. In R. v Steane 1947 K.B. 977, CCA , the defendant was convicted of acts likely to assist the enemy with intent to do so. The standard is subjective: section 8 of the Criminal Justice Acts 1967 reads:
A court or jury in determining whether a person has committed an offence,
(a) shall not be bound in law to infer that he intended or foresaw a result of his actions by reason only of its being a natural and probable consequence of those actions; but
(b) shall decide whether he did intend or foresee that result by reference to all the evidence, drawing such inferences from the evidence s appear proper in the circumstances."
In establishing direct intention, it is considered that the result is desired and the defendant does his best to bring it about. If the defendant saw the consequence as 'virtually certain', the jury may conclude that the defendant intended the consequences. The courts have held that a result can be intended even though the defendant did not actually desire it.
Lord Diplock attempted to clarify 'intention' for the purposes of establishing mens rea for murder in Hyam v Director of Public Prosecutions HL [1974] 2 All ER 41:
In murder and crimes of that class no distinction is to be drawn between the state of mind of one who does an act because he desires it to produce a particular evil consequence, and the state of mind of one who does an act knowing that it is likely to produce that consequence, although it may not be the object he was seeking to achieve by doing the act. What is common to both those states of mind is willingness to produce the particular evil consequence and that is the mens rea needed to satisfy a requirement that in order to constitute the offence with which the accused is charged he must have acted with 'intent' to produce a particular evil consequence.
In R v. Moloney [1985] A.C. 905, HL, the jury was directed that they could infer intention from the defendant's foresight of the consequences. The inebriated defendant had been challenged by his drunken stepfather to a race, to see who could load and fire a shotgun faster. Moloney had loaded his gun when his stepfather challenged him to fire. He complied and killed him. On appeal to the House of Lords, the murder conviction was quashed and manslaughter substituted, because only intention to kill or cause GBH would suffice for murder. In the light of this case, Lord Bridge suggested jury guidelines for the establishment of intention that centred on the concepts of death or serious injury being a natural consequence of the defendant's actions and the defendant's realisation of this fact. A dual affirmation was not conclusive proof of intention but could infer that the defendant intended death or serious injury.
The ambiguity of Lord Bridge's 'natural consequence' guidance was further discussed in Hancock and Shankland [1986] AC 455, HL. In this case, Lord Bridge's guidelines were used and the defendants convicted of murder, but the convictions were substituted for manslaughter by the House of Lords, who held that the Moloney guidelines were flawed as the concept of probability was not considered by the jury. New jury guidelines were suggested to include reference to probability and the greater the probability of consequence, the more likely it was foreseen and therefore intended.
The consideration of 'Intention' was yet to be further defined by the common law. In R. v. Nedrick [1986] 1 WLR 1025 CA, the degree of foresight required for the probability consequence was that of 'virtual certainty'.
Lord Lane. C. J. in Nedrick:
The jury should be directed that they are nor entitled to infer the necessary intention unless they feel sure that death or serious bodily harm was a virtual certainly as a result of the defendant's actions and that the defendant appreciated that such was the case.
The case of R. v. Woollin [1998] 4 All ER 103, HL, confirmed Nedrick. The trial judge's statement of intention was held to be a misdirection that 'blurred the distinction between intention and recklessness'. A jury is not allowed to infer intent unless the defendant appreciated that the consequence was a virtual certainty. The case alludes to the fact that intent may not have the same meaning in every context.
Although necessity is not a defence to murder, a good motive can negate harmful intent. In the cases of Re.A (children) (conjoined twins medical treatment (No.1) [2000] 4 All ER 961 and Airedale NHS Trust v Bland [1992] 2 WLR 316 , although the result of the action would result in a death, the intention was not to kill, but to act in the best interests of the patient and therefore the death would not be unlawful.
Many offences can be committed 'recklessly'. Some are statutory offences: Reckless driving, criminal damage ( arson). It is the taking of an unjustified risk. The jury, in considering the justifiability of the risk, examines the usefulness of the act, the probability of the consequence occurring and to what extent precautions could have been taken to minimalise the risk.
Since the case of R. v. Caldwell [1981] A.C. 341, HL , recklessness has been judged by an objective standard. 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.
Recklessness also considers risk perception in relation to precautions. A defendant that considers the possibility of risk and genuinely decides that there is no risk is not reckless. In Chief Constable of Avon and Somerset v. Shimmen (1986) 84 Cr. App. R 7, the defendant recognised some risk but thought he could avoid it and failed. But a defendant may still be reckless if the defendant takes precautions against the risk, after the realisation that the risk has arisen as in R. v. Merrick [1996] 1 Cr.App.R. 130, CA.
The precedent set in Caldwell is not always followed when assessing mens rea . The mens rea of rape is 'knowledge or recklessness as to lack of consent' (section 1 of the Sexual Offences Act 1976) and the test is subjective. The any mistake as to mens rea must be reasonable. In D.P.P. v Morgan [1976] A.C. 182, HL, the jury did not believe the defendants' mistake as to consent was reasonable. The House of Lords held that an honest (but not necessarily reasonable) mistaken belief in consent will disprove the mens rea. In R. v. Satnam and Kewal (1984) 78 Cr. App. R.149, the court of Appeal ruled that recklessness required proof that the defendant was unconcerned about consent and continued regardless, not believing that the woman consented. The same subjective view was held in R v Kimber [1983] 3 All E.R. 316 as indifference of the defendant satisfied the mens rea requirement for indecent assault.
Caldwell recklessness also fails to apply in offences that contain the word 'maliciously' - e.g. Offences Against the Person Act 1861 s.20. The mens rea in this section requires that the defendant intended or foresaw the risk of physical harm. ( R. v. Savage and Parmenter [1992] 1 A.C. 699)
Mens rea can be transferred from an intended victim to an unforeseen victim but only if the actus reus committed is the same as the actus reus intended. In the case of R. v Latimer (1886) 17 Q.B.D. 359 the defendant intended to strike a man in front of him and hit a woman standing next to him by accident. " If a person has malicious intent towards one person, and in carrying into effect that malicious intent he injures another, he is guilty of what the law considers malice against the person so injured.." In Attorney-General's Reference No. 3 of 1994. [1997] 3 All ER 936, the House of Lords refused to apply the doctrine of transferred malice because it would involve the double transfer of intent, from defendant to mother, mother to foetus
Not many crimes have 'negligence' as mens rea, these are mainly statutory crimes like Road Traffic offences. The legal difference between objective recklessness and negligence is that in negligence, the risk was considered but mistakenly rejected. This consists of falling below the standard of reasonable man and either doing something he would not do, or failing to do something that he would do. The test is again objective.
Negligence.. is failure to conform to a standard of care to which it is the defendant's duty to conform. It is failure to behave like a reasonable and prudent man, in circumstances where the law requires such reasonable behaviour. Glanville Williams. 5
In the case of R. v. Adomako[ 1995] 1 A.C. 171, HL, the defendant's conduct, judged by professional standards, was seen to be so grossly negligent, so as to be classified as criminal.
In crimes of strict liability, mens rea can be absent or presumed.
Lord Goddard C.J. in Warner v. Metropolitan Police Commissioner HL [1969] 2 A.C. 256:
It is of the utmost importance for the protection of the liberty of her subject that a court should always bear in mind that, unless a statute, either clearly or by necessary implication, rules out mens rea as a constituent part of a crime, the court should not find a man guilty of an offence against the criminal law unless he has a guilty mind.
This category of offences is slightly different in as much as the prosecution does not have to prove mens rea in respect to one or more of the elements of the crime. Most strict liability crimes are statutory offences but some are common law crimes .e.g. offences relating to the production and marketing of food ( Smedleys Ltd v Breed 1974) and road traffic offences ( Bowsher 1973) However, most strict liability crimes do require mens rea in respect to some of the elements.
There are rare cases where no mens rea is required at all - these are absolute strict liability crimes, so the mind may not be legally blameworthy at all but the defendant is still liable. In the case of Saulte Ste Marie (1978) 85 DLR (3d) 161 at 170: Dickson. J. said that absolute liability " entails the conviction on proof merely that the defendant committed the prohibited act constituting the actus reus of the offence. There is no relevant mental element. It is no defence that the accused was entirely without fault. He may be morally innocent in every sense."
The courts will impose absolute strict liability in 2 classes of offence: regulatory offences, where the penalty is small and the issue is practical enforcement and public danger offences, where the imposition of strict liability is used as deterrent. However, in Sweet v Parsley, a landlady was convicted with ' being concerned with the management of premises which were used for the purpose of smoking cannabis contrary to s.5 of the Dangerous Drugs Act 1965. On appeal to the House of Lords, Lord Reid restated the principle that where the statute says nothing about the mens rea, there is presumption that mens rea will be required. Lord Reid saw no reason to impose strict liability as there was no way she could prevent her tenants from smoking cannabis. This decision was confirmed by the subsequent Misuse of Drugs Act 1971 section 8 that requires 'proof of knowledge'. In Cundy v. LeCoq (1884) 13 QBD 207, the defendant was convicted on the basis that although the section he had been charged under did not detail a mens rea, the mens rea of 'knowingly' was stated in other sections of the act in question (Licencing Act 1872) and this was held as evidence enough of strict liability.
The state and status of the defendant are mitigating factors in assessing legal blameworthiness. 'Mistake' has the effect of denying the prosecution's case. Whilst a genuine mistake can negative mens rea as in the case of R. v. Tolson (1889) 23 QBD 168, if the actus reus is an offence of strict liability, 'mistake' has no effect on the prosecution's case as in the case of R v. Prince [1874 - 80] All E.R. Rep. 881.
At common law an honest and reasonable belief in the existence of circumstances which if true would make the act for which a prisoner is indicted an innocent act has always been held to be goof defence. The doctrine is embodied in the somewhat uncouth maxim 'actus non facit reum, nisi mens sit rea. Cave. J in Tolson.
The jury is entitled to presume that the accused acted with knowledge of the facts, unless there is some evidence tot he contrary originating from the accused who alone can know on what belief he acted on and what ground the belief if mistaken was held.
Lord Diplock in Sweet and Parsley.
The defendant cannot plead ignorance of the law as a defence, neither is a good motive a defence per se. The defendant can raise evidence to show that he had no mens rea at the time of the offence or could raise a general defence ( e.g. duress) or a defence specific to the offence he is charged with.
.
Self induced intoxication can disprove mens rea of crimes of specific intent but not crimes of basic intent (DPP v Majewski 1977) A defendant cannot rely on a plea of self defence based on a mistake induced by voluntary intoxication ( R. v. O'Grady [1987] Q.B. 995, CA) If the effect of an intoxicant is not common knowledge the prosecution must prove that the defendant knew its effects as in R v Hardie [1985] 1 WLR 64, CA. Involuntary intoxication is a defence to both crimes of specific and basic intent. In R. v Kingston [1995] 2 A.C.355, HL, the House of Lords held that where involuntary intoxication caused lack of mens rea, it was a defence to any crime.
Duress is available as a general defence ( Stean ) but is no defence to murder or attempted murder ( R. v Gott [1992] 2 A.C. 412) but a plea of diminished responsibility can substitute a charge of murder to manslaughter.( R v Thornton [1992] 1 All ER 313) The courts recognise that one cannot be blamed for defending oneself unless the force used was unreasonable. In the case of R. v. Clegg [1995] 1 A.C. 482, HL, the use of deadly force was considered excessive in a military context in Northern Ireland. 'Consent' is no defence to unlawful intercourse, even if the parties are of legal age and capacity as in the case of R. v. Brown [1994] 1 A.C. 212. It is also no defence to murder.
Mental capacity is considered in the assessment of mens rea. 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.
BIBLIOGRAPHY
Glanville Williams, Textbook on Criminal Law, . (2nd edition) London: Stevens & Sons, 1983
Allen, Michael J., Textbook on Criminal Law, (6th Edition) London: Blackstone Press 2001
Dine, J., & Gobert, J., Cases and Materials on Criminal Law ( 3rd Edition) London: Blackstone Press 2000
Smith, P.,(Editor) Criminal Law: Essays in Honour of J.C. Smith. London: Butterworths 1987
Jones, David A., Crime and Criminal Responsibility. Chicago: Nelson Hall. 1978
Brett, P., An Inquiry into Criminal Guilt. London: Sweet and Maxwell. 1965
B (a minor) v DPP HL [2000] 2 AC 428
2 Brett, P., An Inquiry into Criminal Guilt.
3 Professor Howard in Law Quarterly Review ( Vol. 76 p 547)as quoted in Sweet and Parsley.
4 [1915] 2 KB 342*344
5 Textbook on Criminal Law, p 88
6 [1843 - 60] All E.R. Rep.229
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