How far do you agree that there must be a coincidence of actus reus and mens rea in order to establish criminal liability?

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How far do you agree that there must be a coincidence of actus reus and mens rea in order to establish criminal liability?

I will begin by defining criminal liability and the need for actus reus and mens rea which will then lead into a definition of each of these. I will illustrate how actus reus is needed for criminal liability. I will then give examples of mens rea under certain crimes, including the four types of mens rea and the difficulty in proving the above. I will go on to explain the general rule of how one must accompany the other and return in more detail to the difficulty of proving mens rea due to burden of proof and presumption of innocence giving appropriate case examples. I will follow by illustrating, with relevant cases, how mens rea can be proved and what the mens rea of most crimes are, including negligence.

However I will follow with how negligence can be used in the absence of mens rea with regard to strict liability which will lead to how criminal liability can be established without both mens rea and actus reus through omission and how omission qualifies as a criminal offence illustrated with relevant case material.

I will then draw my conclusions evaluating my previous points and summarising to what extent I agree that there must be a coincidence of actus reus and mens rea in order to establish criminal liability.

In order for criminal liability to be established and therefore for the accused to be found guilty of the crime, two principles must be proved. The prosecution must firstly prove that the elements constituting the crime were brought about by the defendants conduct and secondly that those elements occurred with a particular state of mind.

These elements are known as the actus reus and mens rea of the crime. The mens rea traditionally referring to the state of mind, the actus reus comprising of all the other elements of the actual offence. Such as the circumstances in which it was committed and the consequences as a result. Occasionally criminal liability may be established with out any need for conduct on the part of the defendant. An example of this is perjury, a statement made under oath that the person believes to be untrue. This is also an example of one of the three types of actus reus used to define a crime. As the actus reus is simply an act with the consequences being immaterial it is known as an action crime. Another definition of actus reus involves circumstances or consequences and is a ‘being’ rather than a ‘doing’ offence which is said to be a ‘state of affairs’ crime. Finally, if the defendant’s behaviour produces a particular result such as death due to a stab wound, a result crime has been committed.

The mens rea in a case such as death due to a stab would is often more important than the actual actus reus as it is the mens rea which distinguishes murder from manslaughter. The more serious the offence, the higher the degree of mens rea required and for murder the defendant must have intended to kill the victim as without this intent the result would be manslaughter. The Theft Act 1968 helps us distinguish between theft and handling stolen goods with regard to the mens rea as we are given two definitions for each.1

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There are three fault elements within the mens rea of criminal law that are used to classify the seriousness of a crime and needed for conviction. I will briefly evaluate these for the purpose of defining mens rea but will return in greater detail when explaining the importance of a coincidence of actus reus and mens rea. The most serious fault element, intention, I have discussed earlier with regard to murder. Smith and Hogan describe this as, ‘a state of mind with which a person acts’. They define the second less serious element of recklessness as, ‘a failure to comply ...

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