Mens rea – the mental element of the offence; what does this mean? Mens rea can be divided up into two elements: (1) intention; and (2) recklessness. Actus reus – can consist of: (1) an act (2) committed in a certain specified circumstances and (3) leading to the prohibited consequence. Mens rea should exist in relation to each of these separate elements. Assault and Battery Battery is the application of unlawful touching or force on another. •Is it a battery to touch someone on the tube? •Why/why not? •Can you use a medium to inflict a battery on another?
DPP v Kay  – boy conceals acid in a hot air dryer. It was held that he had committed the battery as if he had switched the machine on himself. DPP v Santana-Bermudez  – a police officer asks D whether he has any needles in his pocket prior to a search, he says no. The police officer searches him and pricks his finger on a needle. D convicted of ABH. Assault – involves the apprehension of immediate unlawful force. It is possible to have a battery without an assault (D touching V from behind) and visa-versa (D threatening to punch V but not being able to do so).
•Can words amount to an assault? Ireland and Burstow – combined appeals that said uttering of words can amount to an assault. Silent phone calls are also an assault. •Immediacy Recklessness The fault element for assault and battery is either intention or advertent recklessness (Venna  QB 421, approved in Savage and Parmenter  1 AC 699). Advertent recklessness – D has foreseen that the particular kind of harm might be done and yet has gone on to take the risk of it. ’ 1. Requires D’s actual awareness of the risk. 2. D is reckless if aware of any degree of risk 3.
The objective element is that the risk that D sees must be unjustified or unreasonable. Principle of contemporaneity This is the principle that the actus reus and mens rea must coincide with one another. The Rhodesian case of Shorty the D violently assaulted the V, then thought he was dead so put him down a sewer. He wasn’t dead and so drowned in the sewer. He was not convicted of murder because the mens rea and the actus reus did not co-exist at the same time. He was convicted instead of attempted murder. •Is it right that someone should only be convicted of the attempt?
•Does it matter given that a life sentence can be passed for attempted murder or is the result a secondary issue here? Thabo Meli – two men took a man to a hut, gave him a beer, hit him over the head intending to kill him. They then took him (he was not dead) to a cliff and rolled him over it. That did not kill him either and he died from exposure at the foot of the cliff. Lord Reid said in the HL that the events cannot be divided up in that manner Battery – application of force to another. The defendant should be held criminally liable for the consequences of actions they intended or knowingly risked. Miller  2 AC 161.
D squatted in someone’s house and then went to sleep with a lit cigarette. This caused the mattress to smoulder and when D awoke, instead of putting it out he went to another room. The house caught fire and he was charged with arson, contrary to Ss 1(1) and (3) of the Criminal Damage Act 1971. At trial – submitted that there was no case to answer because his omission to put out the fire, which he had started accidentally, could not in the circumstances amount to a sufficient actus reus. The judge ruled that once he had discovered the mattress smouldering the appellant had been under a duty to act. D was convicted.
CA – upheld conviction on the basis that the whole course of conduct constituted a continues actus reus. HL – Lord Diplock said that it should be a criminal offence to fail to take measures that lie within one’s power to counteract a danger that one has created. “…if at the time of such conduct one’s state of mind is such as constitutes a necessary ingredient of the offence…” At trial the jury was told by the Recorder (ask if they know what a Recorder is) that the D was under a duty to extinguish the fire he had started. The CA looked at it differently and preferred to look at it as a continuous act, rather than a ‘duty’.
Smith prefers the ‘duty theory’ and Glanville Williams prefers the continuous act theory. When applied to cases where a person has unknowingly done an act which sets in train events that, when he becomes aware of them, present an obvious risk that property belonging to another will be damaged, both theories lead to identical results. HL adopted the ‘duty theory’ because by creating a dangerous situation the D became under a duty to act. Lord Diplock conceded that the continuous act theory would provide an alternative route to liability.
If, when D becomes aware that the events in question have happened as a result of his own act, he does not try to prevent or reduce the risk of damage by his own efforts or if necessary by sending for help from the fire brigade and if he has the appropriate mens rea at the time of failing to act •What do you think of the reasoning here? •Does the ‘duty’ theory sit better than the ‘continuous act’ theory? •Is it a matter of public policy that there should not be loopholes that people like Fagan and Miller could have gotten through? •As the D in Miller was asleep what problems does this present when applying the mens rea element of the offence?
•Clarkson and Keeting call the continuing actus reus a “fiction”, is it? •If we adopt the ‘duty theory’ is that a bigger step than the ‘continuous act’ theory? •Does the duty theory create problems in relation to the contemporaneity principle? If it is one series of events then it is a lot easier to impose the contemporaneity principle on them. R v Church The HL gave a new jury direction that they may convict of murder “if they regarded the appellant’s behaviour from the moment he first struck her to the moment when he threw her in the river as a series of acts designed to cause death or grievous bodily harm. ”