Criminal Law

Vincent, an Afro-Caribbean, was walking home when Kevin, a member of an extreme right-wing group, started shouting racist abuse. Kevin then attacked Vincent and pulled out a knife. Vincent suffered several deep cuts to his face and part of his ear was severed.

Explain the terms actus reus and mens rea. Using those explanations, outline an appropriate offence with which Kevin might be charged. (15 marks)

Actus reus means the guilty act, this is the physical element of a crime, this includes an act, failure to act [an omission].

An omission is when the defendant is under a legal duty to act in a certain way, this may include, a contractual/vocational duty [R v Pittwood], a relationship [R v Stone and Dobinson] or when the defendant creates a situation whereby a duty is imposed [R v Miller].

The courts will look at two issues when they are determining whether or not the defendant’s actions caused the victims injury or death. Theses two issues are causation in law and causation in fact. Causation in law is when the defendant’s actions are not the only cause for the injury or death but plays a part. The court’s say the defendant makes a significant contribution [R v Smith]. Causation in fact is when the defendant’s action causes the end result, this is judged by the ‘but for’ test, this basically means ‘but for’ the defendant’s actions the victim would not have been injured/killed.

Chain…..

Mens rea means the guilty mind, this is the mental element of a crime, and these include intention, recklessness and negligence.

Intention is the highest level of the mens rea and is split in to two different elements; direct intention and oblique intention. Direct intention is what the defendant desired whereas oblique intention is when the defendant foresees will almost certainly happen [R v Woolin].

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Chain…..

Mens rea means the guilty mind, this is the mental element of a crime, and these include intention, recklessness and negligence.

Recklessness, this is the taking of an unjustifiable risk, it is judged by the Subjective test i.e. the defendant should have realised the risk [R. v Cunningham] this is also known as Cunningham recklessness as it was the first case. In certain crimes e.g. murder, s.18 Offences Against the Person Act 1861 and theft it is necessary to show intention. In many cases recklessness will be adequate as the mens rea.

In very rare cases negligence may suffice as the mens rea element, negligence is a tort e.g. killing by gross negligence.

The general principle in criminal law is that both the actus reus and the mens rea have to coincide. E.g. the defendant had the necessary mens rea at the time that the act was committed. A case example of this is Thabo Meli v R [1954].

Some crimes are known as crimes of strict liability. Explain, with appropriate examples, what is meant by the term strict liability. (10 marks)

Strict liability offences are offences where the mens rea does not need to be proved in order to get a successful conviction even though the mens rea and actus reus should normally coincide. The very fact that the act was committed makes the defendant guilty.

Strict liability offences are created by statute and are listed in the Health and Safety at Work Act 1974. Some case examples for strict liability include: Sweet v Parsley [1970], Kirkland v Robinson [1987] and R. v Bradish [1990].

However, the courts are not in favour of these strict liability offences and try to avoid them by making the prosecution prove a mens rea.

There are many arguments for strict liability which include the fact that it protects the society in matters of health and safety, it is easier to enforce, it saves time in the courts because more defendants plead guilty. Another argument for strict liability is that it encourages higher standards in such matters as hygiene in processing and selling food. It makes sure that businesses are run properly.

One of the main arguments against strict liability is that it makes people who are not blameworthy guilty. Even those people who have taken all possible care will be found guilty and punished. This is what had happened in the case of Harrow London Borough Council v Shah [1999], they had been found guilty even though they had done their best to prevent sales of lottery tickets to anyone under the age of 16. Other arguments are it is contrary to the principle of human rights and that there is no evidence that it improves standards.

Habib Mohammed

AS Law