For Criminal Liability, the actus reus and mens rea of the same offence must always coincide in point of time.

Question: For Criminal Liability, the actus reus and mens rea of the same offence must always coincide in point of time.

Intro

Liability put simply in legal terms is defined as a “legal duty or obligation by law”. Liability, if bound by law, can in many ways be criminal, thus considered criminal liability. In order for criminal liability to exist in common law both mens rea and actus reus of a particular offence must coincide in point of time beyond reasonable doubt making that offence “absolute”.

There are several types of criminal liability which do require the coincidence of both actus reus and mens rea with exception to strict liability, this occurs if mens rea or negligence does not have to be proved in respect of one or more elements of the actus reus of an offence. If an offence is one of strict liability the prosecution must prove the actus reus was committed by the accused, this involves establishing that the accused’s conduct was voluntary. While an accused may not be found guilty of a strict liability offence where his conduct was involuntary, just as he/she could not be convicted of an offence requiring mens rea or negligence, he/she maybe convicted even though the prohibited consequence was caused inadvertently and in a totally blameless way, such as in “Callow v. Tillstone 1900 where a veterinary surgeon was charged with aiding and abetting the exposure for the sale by a butcher, of inedible meat. The surgeon performed an examination upon the carcass at the butcher’s request and certified it edible. However, the surgeon had performed the examination negligently meaning that the meat in the first place was completely inedible”. The butcher was convicted of the strict liability offence of exposing the meat for sale. The surgeon’s conviction however, was quashed, as he did no know the meat was inedible. For absolute liability to occur, the offence requires no mens rea and the defendant’s actus reus need not be voluntary, which only contemplates in the rarest of situations. An example of absolute liability exists in the case of Larsonneur 1933, where a French woman who was required to leave the United Kingdom did so by going to Eire where she was deported and handed to the police in the United Kingdom. She was convicted of “being an alien…found in the United Kingdom (without leave) “ and appealed on the basis that her return was caused by circumstances over which she had no control over. The case has been overly criticized since the defendant’s presence was involuntary. However, the cause of the prohibited state of affairs was apparently irrelevant thus the mens rea was considered void. A similar decision was reached in the case of Winzar 1983,” where the defendant was found guilty of “being found drunk… on a highway having been put there by the police.”

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Actus reus is defined as an “essential element of a crime that must be proved to secure a conviction, as opposed to the mental state of the accused.” In most cases the actus reus will simply be an act, accompanied by specified circumstances. In certain cases the actus reus may simply be a state of affairs rather that an act. Each crime must be examined individually in order to determine what must be proved to establish its actus reus. Generally however, it is necessary to know which elements of the definition of an offence comprise the actus reus. The term actus reus has a much wider meaning than the ‘act’ prohibited by the law, which it implies. A useful working definition is that it comprises all the elements of the definition of the offence except those, which relate to the mental element (mens rea) required on the part of the accused. Criminal law does not seek to punish people for their evil thoughts or intentions. If the defendant has the mens rea for a particular offence but does not bring about the actus reus, he is thereby not guilty of committing that particular offence, whatever its nature. This is illustrated in the case Deller 1952, whereby the defendant believed that the car he was selling was subject to a hire purchase agreement but said that it was “free from encumbrances”. In fact this was probably true. The Court of Appeal in this case allowed the defendants appeal. Although the defendant had mens rea (believing that his statement was false), the jury was entitled to conclude that the statement was not, in fact, false, so that the actus reus was missing. There were, accordingly, no false pretences because it may be quite accidentally and, strange as it may sound, dishonestly, the appellant had told the truth. The defendant had quite clearly intended to make false representations but the representations he made were true, while he had mens rea, there was no actus reus. If such facts were to recur the correct charge would be attempting to obtain property by deception.

Mens rea is defined as “the state of mind that the prosecution must prove a defendant to have had at the time of committing a crime in order to secure a conviction.” Mens rea varies from crime to crime, it is either defined in the statute creating the crime or established by precedent. Some crimes require of certain circumstances as part of the mens rea . Some crimes require no mens rea, which are known as strict liability as defined before. A defendant cannot plead ignorance of the law, nor is it a good enough motive of defence. He may, however, bring evidence to show that he had no mens rea but raise a general defence or a particular defence allowed in relation to the crime.

Most scholars in the recent past have understood mens rea to require an advertant state of mind, which otherwise means that those offences which could be committed negligently, or for the crime which liability was strict, imposed liability on the person who may have done the prohibited act or caused the prohibited consequence inadvertently, but towards the end of the century, the thin line of demarcation between mens rea and negligence became blurred due to the fact that judges struggled to find to define the meaning of the words in mens rea. This could be seen as particularly unsatisfactory in the light of individual’s serious consequences that has to attend conviction for a criminal offence.

After looking at both aspects of mens rea aswell as actus reus, we are able to deduce that in order for criminal liability to exist, there must be a coincidence of mens rea and actus reus in point of time. “Where an offence requires mens rea the prosecution must prove that the accused had mens rea at the time he did the act which caused the actus reus”. Referring back to the case of Jakeman 1982 where the defendant was carrying two cases of cannabis on a flight from Accra to London via Rome. Unknowingly the flight was diverted from Rome to Paris. The defendant rejected the importation of the cannabis thus did not claim her cases in Paris where it was then sent to London by French authorities where it was later discovered. The defendant was charged with being knowingly concerned in the importation of cannabis. The court then quashed her defence which stated that she had repented of her criminal intent at the time the cannabis left Paris for England. The courts stated that her ‘state of mind at the time of the relevant acts are done’ mattered most. Her relevant act was later defined as booking her luggage to London, where she intended it to arrive, therefore making the innocent agents in Paris who then sent it London, subsequently immaterial.

Where an actus reus 2may be brought about by a continuing act, it is sufficient that the accused had mens rea during its continuance albeit that he did not have mens rea at its inception”. Referring to the case of Fagan v Metropolitan Police Commissioner 1969 where the defendant accidentally drove his car onto the foot of a policeman. The policeman then asked the defendant to move his car which was done but after continuous argument, reluctance aswell as a significant length of time. He then claimed that the original act was not assault because he lacked mens rea and that the rest of his conduct on the policeman was an omission which could not amount to the charge of assault. The divisional court held that assault cannot be committed by omission; however, the assault was not complete on mounting the foot but was completed when the car was removed. Therefore, failing to remove the car was not a mere omission but was part of a continuing act which is this case would amount to assault. The defendants appeal was therefore dismissed.

If facts under the Fagan case were to recur in future cases, the accused can now be convicted under the ‘duty’ principle in Miller where the defendant accidentally set fire to a mattress by falling asleep with a lit cigarette. When he awoke, he failed to take any steps to extinguish the fire or prevent further damage. If defendants create a dangerous situation and it is within their power to counteract that danger, a duty of responsibility arises to do so. Since it was within his power to stop the danger from spreading, his failure to do so amounted to arson. The duty is to simply take responsible steps, which only arises if the defendant created that danger in the first place. Lord Diplock contrasted the case with the example of a bystander who sees a fire but is under no real duty to act.

The ‘continuing act’ principle may still only be relevant in the same circumstances. In the case of Kaitamaki 1985 “The privy council affirmed the decision of the New Zealand Court of Appeal that, for purposes of rape, sexual intercourse is a continuing act. If a defendant penetrates his victim with consent or believing he has consent, and then refuses to withdraw when asked to do so, he will be guilty of rape as he formed the mens rea during the continuance of the actus reus.”

In several cases a problem may arise where there are a combination of several actus reus but no existence of mens rea when each of the acts where committed. However a question of whether the accused had mens rea during any of the acts or whether it is sufficient for liability does arise. In the case of Thabo Meli 1954, the defendant struck the victim on the head with the intent to kill him, and then rolled the victims body over a cliff to portray his death as an accident. However the victim did not die from the initial blow to the head, but actually dies from exposure. The defendant had mens rea when he struck his victim on the head, but the victim dies from the act of disposal at which point mens rea did not exist as the defendant thought that he was disposing of a corpse. His conviction for murder was upheld by the Privy Council which then later introduced a policy design as there was no mens rea when the act that immediately caused death was performed.

In a case similar to that of Thabo Meli , Church 1966 , the defendant struck the victim on the head and then strangled her till a state of unconsciousness, believing her to be dead the defendant then threw the victim into a river where she eventually drowned. “The court of Criminal Appeal, were of opinion that it was sufficient for a conviction if the conduct constituted a series of acts which culminated in her death.” The court then stated obiter (which is a statement made by a judge while giving a judgment that was not essential to the decision of the case) that the jury could not convict for murder if the actus reus would have lead to death.

In the case of Le Brun 1991, there was neither an antecedent plan nor did the defendant know he was disposing of a live body rather than a corpse. In this particular case, the defendant hit his wife over the head during an argument rendering her unconscious. In dragging her away thereafter, he caused her death by accidentally dropping her. He was charged with manslaughter. The court of appeal stated that there was a certain time interval between the act committed with mens rea and the act that caused death, there may still be a conviction if all the acts are part of the very same order of events. Lord Lane CJ stated while applying Church:

“it seems to us that where the unlawful application of force and the eventual act causing death are part of the same transaction, the fact that there is an appreciable interval of time between the two does not serve to exonerate the defendant from liability. This is certainly so where the appellants subsequent actions which caused death …In short, in circumstances such as the present …the act which causes death and the necessary mental state to constitute manslaughter need not coincide in point of time.”

The problem in Le Brun can be expressed as an issue of causation, which is usually defined as the relationship between an act and the consequences it produces. It is a key element that must be proved before an accused maybe convicted of any crime. The original performed with mens rea, seen as the cause of death, every act after that is known as the unbroken chain of causation, and due to the lack of coincidence between actus reus and mens rea in this case, there is no need to rly on the transaction principle which is equally applicable to murder.

In conclusion to this essay, we are able to say in respect to all the key factors discussed that ‘actus reus’ and ‘mens rea’ of the same offence must always coincide in point of time in order for criminal liability to exist. As said earlier, Criminal law does not seek to punish evil thoughts which would be seen as mens rea, but without an act to provide a sufficient actus reus, a crime would not be complete and thus liability for that particular crime, whatever its nature would be non-existent.