Causation is where harm may have been caused by a number of different things, one of which was the act or omission of the defendant. Often these cases do throw up questions as to whether or not the defendant has actus Reus. One way of describing situations where injuries, deaths or criminal consequences have a number of causes is to say that there is a ‘chain of causation.’ However if after the act of the defendant something else occurred which is regarded as being the true cause of the harm, it is said that the chain of causation has been broken. To show actus Reus it is necessary to show that:
- The defendants conduct was the factual cause of the harm.
- The defendants conduct was in law the cause of the harm
- There was no intervening act which broke the chain of causation.
There are two types of causation, factual causation and legal causation. ‘To establish that the defendants behaviour act was, in the particular facts of the case, sufficient to justify conviction, the question that has to be answered is known as the ‘but for’ test. This is asking would the defendant have escaped the harm BUT FOR the defendants act. An example of this is R v Pagett 1983 However legal causation is where the fact that the behaviour of a defendant was not the only cause of death.
There is also the ‘thin skull’ or ‘eggshell skull’ rule. This is where in some cases a victim may be particular susceptible to harm in a way that the great majority of people are not. This is known as a thin skull rule. It works on the idea that you take your victim as you find them.
ii.)To be guilty of criminal offence this requires both of actus Reus and mens rea. However in some offences only actus Reus is required, these are known as strict liability offences. Illegal parking is an example of a strict liability offence. It can be that a person who parks on double yellow lines did not realise they have done so and so did not possess the mens rea. Recklessness does not need to be shown to convict someone of a strict liability offence. Other examples include trading standards, food safety and the sale of tobacco or lottery tickets to under age children.
Statues do not always specify whether or not mens rea is required for a particular offence. However there are two general questions ‘do the words used in the Act imply strict liability?’ and ‘is the offence really criminal or merely regulatory?’
Do the words used in the Act imply strict liability? In the case of Gammon ltd v Attorney general of Hong Kong 1985 it was stated that even if an offence did not specify strict liability the words used might nether less indicate this. Criminal or regulatory it is well established that the courts should start from the presumption that all criminal offences require mens rea. However Lord Scarman stated that a distinction should be made between offences that are ‘truly criminal;’ and those that are concerned with an issue of ‘social concern.’
Some argue that strict liability removes the need to prove mens rea in offences, therefore reducing the cost of running the courts. Some also believe that in relation to ‘social concern’ offences strict liability encourages companies to ensure that the law is not broken.
However in some cases it can be seen that the mens rea and the actus reus do not coincide, but the courts still consider that an offence has been committed. This is called continuing act. This is where the actus reus stretches over a significant period of time and at some time during this the defendant posses the mens rea An example is Fagan v Metropolitan Police Commissioner 1968.
(b) Taking into account both actus reus and mens rea, discuss Reg’s criminal liability for the attack on Jack. (10 marks)
Because the offence was with intent meaning Reg intended to go and cause serious harm to Jack he would probably be looking at Grievous bodily Harm with intent and this sentence can reach anything up to life imprisonment in the courts. So Reg possessed both Mens Rea (the mental Element) because he went round to Jacks house to cause harm to him. And Actus Reus (Physical element) because he actually hit Jack unconscious and cut out his tongue. Because he possessed both of these elements he is therefore liable for that criminal offence. Reg also had no factual evidence to show that it was infact Jack that had written a statement about him to the police and so shouldn’t have acted on a feeling. Also Reg went and hit him with a weapon and so because of this it was seen as GBH with intent. However there are two types of intention. With some offences the law requires that the prosecution must prove intention. Recklessness is not sufficient to obtain a conviction. For example in Section 18 of the Offences against the Person Act 1861. Wounding or causing grievous bodily harm is the actus reus. The mens rea is that the defendant must have intended to wound or cause GBH. And so Reg is liable for this offence. Also Reg possessed the foresight of his actions. He knew that he was going there to damage Jack and cut his tongue out.
In some cases however it can be difficult to accept that the defendants’ mens rea was anything other than intention. An example is Moloney 1985. A solider was having a competition with his father to load a shot gun. Moloney won and his father said go on then shoot it and he shot it at him, instantly killing him. Moloney then said. ‘I never conceived that what I was doing might cause injury to anybody. It was just a lark.’ However some may say that instinctively he must have known that that would happen to his father.’
Willow Mentos
AS Law
Andrew Proctor
Word Count: 1, 436
Reg believed that Jack had given a statement about him to the police. He was furious about this and went to Jack’s house. Jack was asleep in a chair in the garden. Reg went up to Jack, knocked him unconscious with a cosh and then cut out his tongue.
(a) Criminal offences are usually defined in terms of a guilty act (actus reus) and a guilty mind(mens rea). Explain, using examples, how the law deals with
(i) criminal omissions;
(ii) strict liability. (15 marks)
(b) Taking into account both actus reus and mens rea, discuss Reg’s criminal liability for the attack on Jack. (10 marks)
Please include an essay plan at the start of your answer, as these can be used to give you marks in an exam if you don’t manage to finish your answer. It’s just good practice, people!
