Actus reus and mens rea are two fundamental elements in English criminal law that must be proven by the prosecution in order to establish a defendant’s guilt in a crime. Both terms have their origins in the Latin language.
1. Actus Reus (“AR”)
It means, in Latin, the “guilty act”. It is the actual physical act(s) which form the objective element of the crime. It encompasses the conduct that constitutes the criminal offence. To establish the Actus Reus, the prosecution must show, beyond a reasonable doubt, that the defendant committed a voluntary act or omission which led to the prohibited outcome. In some cases, the actus reus also includes a “causation” element, requiring proof that the defendant’s actions have mainly caused harm or consequence.
Causation
R v Smith [1959] 2 QB 35
The defendant, who was a soldier, had a fight in an army barracks and stabbed another soldier. The injured soldier was taken to the hospital but was dropped two times on the way. When he arrived, the treatment provided was incorrect. The medics did not recognise that his lung was punctured. The soldier died as a result. The defendant was found guilty of murder and appealed, arguing that the victim would have survived with proper medical care. The court held the conviction as the stab wound was the operative cause of death. Therefore, inadequate medical care does not disrupt the causal link when the initial injury is still a considerable factor at the time of death. Only if a secondary cause is so dominant that it makes the original injury just a background factor can it be claimed that the first act did not cause the death.
Omission
The general rule of omission is there is no legal responsibility for not doing something that needs to be done. For example, if you see a child drowning in shallow water, and you did not interfere to help, you usually will not face criminal charges for your inaction, even if it would have been easy for you to save the child.
However, there are exceptions to this general rule:
a. Statutory duty:
If you have a statutory duty to act. Like a duty to provide the insurance company with the details of an accident that occurred or a duty imposed on a public office holder such as the policeman, as in R v Dytham [1979].
b. Contractual duty:
When someone has a contractual obligation to take action, not fulfilling that duty could lead to criminal liability, R v Pittwood [1902].
c. Creating a dangerous situation:
If the defendant initiated a chain of actions leading to damage and did not try to stop the damage after being aware of it, his inaction could constitute the necessary Actus Reus.
In R v Miller [1983], the defendant had been drinking and returned to the house where he was staying. He fell asleep on a mattress while holding a lit cigarette. When he woke up, he saw that the cigarette had caused a small fire. Instead of putting out the fire or calling the fire department, he moved to another room and went back to sleep. During the trial, the prosecution did not argue that falling asleep with a lit cigarette was reckless; they focused on the defendant’s failure to act after noticing the fire.
The court held that since the defendant had created a dangerous situation, he was responsible for calling the fire department when he realised there was a fire. Because he did not do this, he was held liable, and his omission constituted the Actus Reus of criminal damage.
2. Mens rea
The term “mens rea” is translated from Latin as the “guilty mind” and refers to the mental element of a crime. It is the defendant’s intent or state of mind when committing the actus reus. Mens rea is typically categorised into different levels of culpability, such as intention, recklessness, or negligence.
a. Intention
Intention is considered to be the higher degree of culpability of all levels. The intention in criminal law means the aim or purpose (Moloney). It does not mean the motive. For example, if a defendant intends to commit murder, his aim or purpose would be to end the victim’s life, whereas the motive may be unrelated to the killing itself, such as he killed him to steal his money. In a nutshell, intention and motive are different concepts.
There are two types of intention, direct intention (Mohan) and indirect or oblique intention (R V Wollin).
The direct intention is simple. D wanted to kill his friend, he grabbed a knife and stabbed him.
The oblique intention, on the other hand, is more complicated. It occurs when a defendant takes a tricky action to achieve a specific outcome, knowing that his action may also lead to another result(s). For example, if D cuts the breaks off his wife’s car in an attempt to get her injured. He understands that his action may indeed cause the death of other passengers and perhaps any other driver, even if that is not his primary goal. In this case, D is just as responsible for the deaths of the passengers as he is for his wife’s death since he knows these deaths will happen as a result of his action.
b. Recklessness
In R v Cunningham [1957], the defendant removed a gas meter from the wall to steal the money inside it. This action led to a gas leak. The gas then moved through tiny gaps in the wall to the adjacent property, where a woman was asleep and was poisoned by the gas. The court confirmed that recklessness would occur if the defendant had foreseen the consequent harm that might occur and yet had gone on to take the risk of committing a crime. Therefore, to establish recklessness, the defendant must foresee the harm that occurred or might occur from his actions but nevertheless continue regardless of the risk.
c. Negligence
Negligence has a certain role in criminal liability. It used to be the foundation for several driving offences, but recklessness has recently replaced it.
The main role of negligence requires the prosecution to establish that the defendant owed a duty of care and was in breach of that duty, which resulted in damage. The current test for establishing liability under negligence was set out in R v Adomako as to whether the conduct of the defendant was so bad in all the circumstances as to amount to a criminal act or omission.