To is taking an unjustified risk even
To bedefined a crime, the events usually involve two elements: the actus reusand mens rea. The ‘actus reus’ is the act which forms part of acriminal offence. It is the physical aspect of a crime or the wrongful act. Forthe accused to be held responsible for their actions, it must be voluntary and heymust have some control over their actions.
The specific actus reus is includedin the definition of the offence. This could refer to just the act, or also theconsequence for example, assault or battery resulting in actual bodily harm.The act must cause the result in the definition. The ‘mens rea’ is themental element of an offence, it literally means guilty mind. Most offencesrequire there be mens rea to be present such as intention to kill. There aretwo categories of mens rea: intention and recklessness.
Intention – For someoffences, such as murder, or causing grievous bodily harm with intent, theintention is required. In R v Mohan (1976), it was said that this is ‘adecision to bring about, as far as it lies within the accused’s power, (aspecific circumstance) no matter whether the accused desired that consequenceof his act or not’ (red book). The two offences in section 18 and 20 ofthe Offences Against the Person Act 1861 require a similar actus reus, but it’sthe mens rea in the definition makes the offences different. Intention is thehighest level of mens rea.
When a person brings about the consequence of theiraction they desired, they’re said to have direct intent. Oblique intent iswhere the defendant has a desired outcome in mind but their action causes adifferent consequence. This is seen in Hancock and Shankland (1986) where thedefendants want to scare a colleague into not breaking strike. They pushed twobricks off a bridge onto the road he travels on to work, by taxi. Theysucceeded at frightening their colleague, however they also killed the taxidriver. Recklessness-Recklessnessis a lower level of mens rea than intention. Recklessness is taking an unjustifiedrisk even if the defendant realised the consequences.
There are two types ofrecklessness: objective and subjective. Subjective recklessness is where aperson does not set out to bring about a result, but acknowledges that it couldoccur from a course of action, and continues with the action anyway. This kindof recklessness applies to the offences of assault e.g. assault causing actual bodilyharm and malicious wounding. For example, in R v Cunningham (1957), where’Cunningham ripped a gas meter from a wall to steal money from it. Gas leakedfrom where the meter had been and made a woman living there ill’ (red book) Hecould only be guilty if he knew that gas escaping could be harmful to theresidents. Objectiverecklessness is where a defendant does not realise that there is a risk, but anordinary person – defined as ‘an ordinary prudent individual’ in MPC vCaldwell, (1981) – would have done so, recklessness is objective.
This couldmake a defendant responsible for an offence even if that particular person didnot realise there was a potential risk. This used to apply to criminal damage,however this was discounted after the case of R V G and R (2003), where someboys who set fire to papers and bins were found not to have foreseen thepossibility of this fire spreading to the buildings and damaging them. Omission- An omissionis the failure to do something which should have been done. For some crimes theomission must also bring about a consequence. The omission must be voluntary onthe part of the accused, if the defendant cannot take responsibility for theiractions, they have not committed the actus reus e.g. losing control of a vehiclebecause of a heart attack. However if the defendant knew of an existing healthproblem that could lead to him losing control of the vehicle, it would beconsidered voluntary, like in Broome v Perkins (1987).
At common law there arefive situations where there is a duty to act and a failure to act createsliability. There is a duty to act if you are under a contract especially ofemployment, because of a relationship e.g.
mother and child, you havevoluntarily undertaken e.g. care of an elderly family member, if you’ve createda dangerous situation and if you have an official position e.
g. police officer.For example in Dytham (1979), ‘a police officer witnessed a violent attack onthe victim, but took now steps to intervene, instead he drove away from thescene’ (Martin, 2014). The policeofficer was found guilty of unreasonable failure to act, when it is his duty. De minimusRule- The de minimus rule is that the actions of the accused are only aminimal part of the result.
If the defendant can prove that his actions wereonly a minimal part of the end consequence, he will not have caused the resultand cannot be convicted. In R v Pagett (1993), ‘Pagett fired at thepolice, who responded by firing back at Pagett. He held his girlfriend in frontof him as a shield’ (red book). If there is another act that is thegreatest cause of the result then the defendant that carried out the originalact will not be legally responsible. If it wasn’t for Pagett using hisgirlfriend as a shield she would not have been shot at.
Therefore, Pagett willbe convicted for her murder, not the police officer. Thin SkullRule- The defendant must ‘take the victim as they find him’, this is known asthe thin skull rule. This means that if the damage is worse for the particularvictim because of the health of the victim e.
g. having brittle bones. Thedefendant is liable to compensate for the actual damage suffered even ifsomeone else would have been stronger and therefore less seriously injured. This is seen in Smith v Leech Brain & Co (1962), where ‘a workman wasscalded on the lip when molten metal splashed him due to his employer’snegligence. The burn was only minor but it started a cancer which was dormant.His death from cancer which had been dormant.
His death from cancer was notforeseeable but the injury caused by the burn was, and the cancer was caused bythe injury’ (red book). The employer was liable based on the fact thatthe victim had to be taken as he actually was, not as another victim might havebeen. Causation- Thecausation is the link between a defendant’s act and the consequence, and itneeds to be established for many offences. This can be clearly seen in murder,where the defendant must have done something which has caused death.
So iftheir action does not bring about death, then they cannot be charged withmurder. When considering whether or not the accused’s act brought about theconsequence, there are two issues to look at: causation in fact and causationin law. Causation infact relates to whether the actions of the defendant were the cause of theconsequence. The ‘but for’ test is used to ask whether the victim would havesuffered the injury ‘but for’ the actions of the defendant. In R v Pagett(1993), the girlfriend got hit by the bullets that the police shot and shedied. Even though it was the police’s bullets that killed her, we can use the’but for’ test to prove that Pagett is actually the one guilty of her murder.
But for his actions, the victim would not have died. Causation in law whether ornot the consequence was caused by the defendant’s actions or whether thedefendant made a major contribution to it. For this, the defendant’s actions donot need to be the sole or even main cause of the result.
The chain ofcausation can be broken by a third party, the victim’s own act or a natural,unpredictable event. In order to break the chain of causation, making thedefendant not guilty of the consequence, the intervening act must besufficiently independent of the defendant’s conduct and sufficiently serious. In the case of Rafferty (2007), the victim’s death was caused by thedeliberate independent act of a third party, then the defendant did not causethe death even though he earlier took part in an assault on the victim.However, in R v Smith (1959), ‘Smith, a soldier, stabbed another soldier whileposted in Germany. The victim was dropped twice by other people on the way tohospital, when there he received poor medical treatment’ (red book).
There wastwo factors between the action and the consequence that could have affected theresult. However the court held that the events between, were not enough tosubstantial enough to break the chain of causation. StrictLiability Offences – It is hard to prove the mens rea ofoffences such as parking and speeding offences. These are called strictliability offences and they don’t require the mens rea, the prosecution onlyhas to prove the defendant voluntarily committed the act to find them guilty.
Strict liability is very rare in common law. Using strictliability in criminal law is controversial as it means a person may be liablewhere they’re not at fault or have taken measures to ensure they are in linewith the law. For example, in the case of Gammon Ltd v Attorney-Generalof Hong Kong 1985, the defendant was a builder who had ‘deviated from plansin the construction of a building. It was an offence to deviate from the plansin a substantial way. The appellant accepted he had deviated from the plans buthe believed that the deviation was only minor rather than substantial’ (Gammon (Hong Kong) Ltd v Attorney-General of Hong Kong, n.
d.).He didn’t have the mens rea, however it was a strict liability offence and theactus reus alone was enough convict him. Applying thelaw to Connor and Dave’s CaseBoth Daveand Connor ‘feel this is unacceptable and decide to put in his place’, this isthe mens rea for the offences.
They have both agreed on what to do, showingthey had intent to threaten him. However, Dave and Connor commit differentactus reus in terms of what they did and also the seriousness of what they did.Connor committed a less serious offence, as he ‘threatened Mark’ and tellshim that if he doesn’t stop ‘he’ll regret it’.
This is assault as he is causingimmediate fear within the victim. Dave also threatens Mark, however he commitsan act far more serious. Mark ‘vigorously’ punched Mark in the face, whichresulted in him sustaining injuries. Mark had an underlying medical conditionthat neither Mark nor Connor knew about, which caused him to sustain injuriesthat are ‘worse than an ordinary person’ would have.
Although Dave did notrealise how much damage he could cause, this would not stand up as defence dueto the thin skull rule. As previously mentioned, the thin skull rule is thatyou should take the victim as you find them. This means that Dave is likely tohave a bigger sentence due to the severity of the issues, ‘broken nose andsevere bruising’, and not having a justified defence.