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 with a standard of conduct’. This may come into effect if a person does not intent to commit a certain act but foresees its possibility and consciously continues the act. The last fault element is that of negligence. This is usually the case when the consequence is not foreseen, but as it is a direct result of the actus reus the defendant is responsible but on a lesser level.
With regard to whether there must be a coincidence of actus reus and mens rea for criminal liability we must consider the general principle of criminal law. That is that for criminal liability to be established it must be proved that the defendant possessed the necessary mens rea at the point the actus reus is committed. The coincidence of the two is known as the contemporanaity rule. However the mens rea can be difficult to prove due to the Burden of proof and Presumption of innocence. As the Burden of proof lies with the prosecution they must prove the guilt of the defendant and disprove any defence he produces. Even if the actus reus is obvious the prosecution must still prove the relevant mens rea was also present. The jury are only entitled to convict the accused if the Burden of proof has been discharged. This difficulty is increased as they must also be satisfied, beyond all reasonable doubt, of the guilt of the accused due to the presumption of innocence. Lying this responsibility solely with the prosecution has lead to unjust acquittals within certain cases. One such example being that of
Woolmington v Director of Public Prosecutions [1935] AC 462 HL2
The judge stated to the jury that after it was proved by the prosecution that the defendant killed the victim, it was then for the defendant to prove that the killing was not murder. This lead to the House of Lords ruling misdirection as under the Burden of proof it was not for the defendant to prove his innocence but the prosecution to prove his guilt as well as prove that the act was committed with the necessary criminal intent. As there was reasonable doubt the defendant carried the mens rea of malicious intention he was acquitted. In this case it was the omission of the appropriate mens rea that prevented criminal liability from being established. Therefore increasing my belief that there must be a coincidence of the two as proof of the act does not qualify for responsibility without proof of the mind. However the need for the two does not ensure justice but at times prevents it, as I believe happened in the above case.
As a literal interpretation of the contemporaneity rule can and has lead to injustice it has been adjusted to include two further points. The first being that there can be said to be a coincidence of actus reus and mens rea when the events take place over a period of time. The actus reus is a continuing act and mens rea was present during its continuance.
The second point is when the actus reus is a continuing series of acts with the mens rea being present at some point. This is known as a ‘chain of events’. The mens rea is not needed at the exact time the actus reus is committed. Lord Geoffrey Lane from the Court of Appeal stated in
Le Braun [1991] 4 ALL ER 6733
‘…the act which causes death and the necessary mental state to constitute manslaughter need not coincide in point of time’
To give an example of each, that of the ‘chain of events’ was in the case of
Thabo Meli v R [1954] 1 WLR 2284
The defendants appealed on the basis of there being no coincidence of the mens rea and actus reus for murder. The Privy Council denied their appeal as the actus reus of causing death began with the victim being struck on the head and continued until he died of exposure. This chain of events was a continuous actus reus and the prosecution was able to establish that at some point during the chain of events the required mens rea was present.
A case involving a continuing act is that of
Fagan v MPC [1968] 3 ALL ER 4425
It was established that the actus reus of the assault was a continuing act which although initially lacked mens rea, was still being carried out when mens rea was formed. Criminal liability was therefore established as there was a sufficient coincidence of the two.
The two case examples above again enforce my belief that there must be a coincidence of actus reus and mens rea to establish criminal liability. The two need not coincide constantly, it is suffice if they coincide at some point only. This is as the two defendants argued that the relevant mens rea was not present throughout at the time the actus reus was committed. These cases also illustrate that although it may be hard to prove the coincidence of the two, the legal system is trying to adapt through the ‘chain of events’ and ‘continuing acts’ to ensure that lack of coincidence is not used as a defence in order to acquit the guilty.
To return to mens rea in greater depth, as previously stated, we find that it usually falls into one of three categories. Intention Recklessness or Negligence.
Intention can be placed under two categories, that of direct and indirect or oblique intent. If the defendant intends to kill the victim, whether he shoots, stabs or strikes him, successful in killing him or not, the intention and therefore mens rea for murder is established. This is an example of direct intention that is the easier of the two to prove as it is the result that the defendant wants to occur. However G Williams believes that
‘Judges decline to define (intention) and they appear to adjust it from one case to another.’
Possibly due to the difficulty of identifying, with regard to oblique intention, the extent to which the defendant realised a certain result was highly probable due to their intended act. This is as oblique intention falls under this requirement as oppose to being the act the defendant intended.
Woollin [1998] 3 WLR 382 set the law, overruling the original decision that the jury could infer intention where satisfied there was a substantial risk of a result occurring, as foreseeing a risk only constitutes recklessness.6
To review recklessness we must consider both Cunningham and Caldwell recklessness, named after the two cases in which they were established.
R v Cunningham [1957] and MPC v Caldwell [1982]7
In the case of Cunningham, reckless was defined as foreseeing that the result might occur but proceeding with the action nonetheless. This is also known as subjective recklessness as the defendant must possess a foresight of the result and is conscious of taking the risk.
Lord Geoffrey Lane, in the case of Stephenson [1979] 2 ALL ER 1198 makes an accurate reference to recklessness as,
‘…the risk must be one which it is in all circumstances unreasonable for him to take.’
Caldwell recklessness was a result of Lord Diplock viewing the Cunningham definition as too narrow in regard to the Criminal Damage Act 1971. He dismissed the need for any foresight making lack of thought to the possibility of the risk grounds for criminal liability.
The result of this has been the possibility of a defendant being prosecuted for not thinking of the risk and for not having a particular state of mind. Therefore it is the lack of mens rea which leads to his conviction. This disputes the need for a coincidence of actus reus and mens rea in order to establish criminal liability.
The final mens rea is that of negligence. That is failure to behave in a way that would be expected of a reasonable person in such circumstances. Therefore the defendant’s state of mind at the time of actus reus is irrelevant, again dismissing the need for a coincidence of the two. However negligence usually features in statutory offences and is rare within criminal law as these are mainly crimes of strict liability that omit the need for mens rea. The defendant can actually argue that he acted ‘with all due diligence’, therefore using negligence as a defence.
Criminal liability can also be established without both mens rea and actus reus in regard to crimes of omission which is failure to act. The courts have established five circumstances which qualify as omission the first being failure in parental duty to a child as they are responsible for their safety and well-being. The second is failure to act as under contract to do so such as a Doctor who is responsible to preserve his patients life. If you take someone who is unfit to look after themselves under your care, failure to provide sufficient care also qualifies as omission. Statues are also a cause of crimes of omission as they impose certain duties to improve and protect society, an example being failure to stop after a traffic accident under the Road Traffic Act 1972. The House of Lords has also set law that if your actions lead to an unsafe and dangerous situation you are under duty to do everything reasonably possible to prevent further danger. Failure of prevention establishes an actus reus and the decision not to act qualifies as the mens rea.
Airedale NHS v Bland [1993] 1 ALL ER 821 is an example of omission.8
The Doctor, under contract, had a duty to do everything possible to preserve his patients life. Under law his omission to do so could be considered Murder. The House of Lords ruled that in turning off the life support machine the Doctor would be guilty of the crime of omission.
Defining actus reus and mens rea can and has caused problems in the court of law as each case is different. Even though similar cases can be reviewed, all circumstances are not the same. Even when the actus reus and mens rea have been defined difficulty can arise in proving mens rea, especially as every defendant is presumed innocent until it is proved otherwise. Although I believe that generally there must be a coincidence of the two in order to establish criminal liability, it can be achieved in cases of strict liability without mens rea, although these usually feature in common law. With regard to omissions neither actus reus or mens rea is needed as there is no actual act but an omission to do so and therefore the coincidence of both is not needed for criminal liability. Without the case of omission however I would almost entirely agree that there must be a coincidence of actus reus and mens rea to establish criminal liability as strict liability cases relate to public wrongs as oppose to criminal matters.
