Explain what is meant by the terms 'Mens Rea' and 'Actus Reus'. Use Authority to support your answers The Actus Reus is the physical element of the crime – the wrongful act of prohibited action or failure to act (omission). The act or omission must be voluntary; D who has some control over his/her physical actions carries that out. The existence of the Actus Reus is essential for criminal liability. If there is no actual Actus Reus- or physical doing of the crime then there is no crime there at all.
The Actus Reus in section 18 of the Offences Against the Person Act (OAPA) is where the D unlawfully and maliciously wounds another or causes Grievous Bodily Harm (GBH) by any means whatsoever. There is also a voluntary nature of the act or omission. D's act must have occurred because of a conscious exercise of will on D's part i. e. the actions must be voluntary in the sense that D's behaviours is as a result of a Physical action over which there is some control as opposed to a reflex action over which D as no control.
If D's actions are involuntary then D may be able to plead the defence of automatism/non insane automatism. If successfully pleases this is a complete defence but in reality it is of limited application. An omission- most crimes result from positive conduct and providing the act is voluntarily undertaken then there would appear to be no difficulty in establishing fault on D's part. Normally a person will not be found to be criminally liable because he has failed to act. However there are exceptions to this rule where the law has decided that a person should be criminally liable for failing to act.
For example in the Road Traffic Act 1988 it makes it an offence to 1. Fail to provide a sample of breath. 2) Supply certain information. Where there is a contractual duty to act a person's contract may lay down a specific duty to act e. g. a lifeguard is employed to saves lives and would be failing to act in his duty if he observed someone drowning and didn't do anything to help. Also where there is a contractual duty imposed by law. The judges have imposed a duty to act in certain circumstances. These are where the person is guilty of misconduct in a public office.
In Dytham 1979 a police officer was found criminally liable for failing to preserve the Queen's peace stood by whilst a man was kicked to death. Where there is a special relationship between the parties as shown in Instan 1893, an Aunt lived with her niece. The aunt became ill. The niece failed to get help and the aunt died of gangrene. Also shown in Gibbons and Proctor 1918 a man and his common law wife found guilty of murder for failing to feed the man's child. The child starved of starvation. To convict D of a crime it must be shown that D's conduct was a substantial cause of the death.
In some cases D might not have been responsible for the final act, which caused the death, but he will still be guilty because he set in motion the chain of events which led to it. There is no legislation on this subject, only case law. In most cases, it is not difficult discover the D's conduct caused the death although the jury has to be convinced beyond all reasonable doubt. In some cases D will argue that someone else caused the death or at least contributed to itor that death was the victims own fault in some way. D will only be criminally liable if his conduct made a significant contribution to the death.
In White 1910 intending to murder his mother, the defendant prepared her a drink, made with cyanide, before she touched the drink she died from heart failure. The defendant cannot be convicted of murder, since the victim's death was not due to the poison he gave her. In rare cases D may unfortunately be found guilty of a crime simply by being in a particular place when the state of affairs has been declared to be wrong. In R v Larsonneur 1933 D had gone to Ireland when her UK permit has expired. She was deported from Ireland, bought by UK by Police against her will.
Found guilty of being an Alien. Not only must the prosecution show that the D (defendant) brought about the Actus Reus of the crime, but they must also, in most cases, prove that he caused the Actus Reus with Mens Rea. Mens Rea literally translated means guilty mind. It is the term given to the D's state of mind, which is required to be proved in relation to each of the elements of the Actus Reus. The required mens rea varies from crime to crime. Each crime has its own special Actus Reus and mens rea both of which have to be satisfied in order for D to be guilty of the offence.
There are three states of mind that either together or separately can constitute the necessary mens rea; they are Intention, Recklessness and Negligence. Intention, in many cases it will not be too difficult to decide on D's intention – it will be clear from the circumstances. This is referred to as direct intent for example D wants to kill V for his money. D points a gun at Vs head and pulls the trigger . D intends V's death. Recklessness for many offences it is not necessary to show such a high degree of blameworthiness.
It is sufficient to prove that the D has been reckless as to whether the crime was committed. In such cases it has to be shown that the D took an unjustifiable risk. There are two types of recklessness: 1) Subjective recklessness, also known as the Cunningham recklessness. In the Cunningham case (1957) Roy Cunningham ripped a gas meter from the cellar wall of a house in Bradford, in order to steal the money inside it. He ledt a ruptured pipe, leaking gas which seeped through the neighbouring house. Sarah Wade (the mother of Cunningham's' Fianci?? e) inhaled it.
He was convicted of maliciously administering a noxious substance so as to endanger life, contrary to section 23 of the Offences Against the Person Act. (OAPA), but his conviction was quashed. The Crux of the matter was whether D had foreseen the risk that is the risk of someone inhaling the gas. Cunningham recklessness applies to all non-fatal offences. 2) Objective recklessness, the Caldwell case. In this case James Caldwell, who bore a grudge against his boss, the owner of a hotel, got drunk one night and started a fire in a ground floor room in the hotel.
Guests were resident at the time. The fire was dealt with, but Caldwell was charged under the Criminal Damage Act with arson (Criminal damage by fire), being reckless as to whether life would be endangered. He was convicted and his appeals dismissed by the Court of Appeal and the House of Lords. Caldwell recklessness applies to criminal damage and arson cases. Negligence occurs where a person acts in a way that fall below the standard expected of the reasonable person in the same situation as D. This often also incurs civil liability as well as criminal liability.