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A person cannot usually be found guilty of a criminal offence unless two elements are present

A person cannot usually be found guilty of a criminal offence unless two elements are present: actus reus and mens rea. Both these terms have a very specific meaning which varies according to the crime, but the important thing is that to be guilty of an offence, an accused must not only have behaved in a particular way, but must also usually have a had a particular mental attitude to that behaviour. Discuss

Criminal liability is imposed on people that commit criminal offences; crime or an offence is seen as a wrong doing in the eyes of society, which goes against societies norms and interests. When a person breaks the law it has criminal consequences that follow, such as: -

1.      Possibility of state punishment

2.      Prosecution by the state

In this piece of coursework I will define both elements of crime, discuss the fact the a person cannot be found guilty unless both elements of crime have been proved, I will give the different meanings of the terms in accordance to the different crimes using cases, I will also give a deeper understanding of actus reus and mens rea.

There are two elements of criminal offences, which are 1.actus reus and 2.mens rea. Both these terms come from the Latin language. Actus reus means "guilty act" and mens rea means "guilty mind". A person cannot be found guilty of a criminal offence unless both elements are present and proved that the person has committed the act by the prosecution beyond reasonable doubt. In other words this means that the prosecution has to prove both elements so that the judge and jury both are satisfied without any doubt what so ever that the accused is guilty. Both these terms have specific meanings, which varies according to crime. When the accused committed the crime not only should s/he have behaved in a certain way but must also should have had a particular attitude or mental state to that behaviour. This is only exempted when offences of strict liability have been committed.

When a person commits a crime the conduct of that behaviour must be voluntary. There are four types of actus reus crimes, which are action crimes, state of affairs, result crimes and omissions.

Action crimes - The actus reus of such offences are simply jus acts, as the consequences of the act are beside the point. For example, when a person commits the crime of perjury, which is giving a false statement under oath. Regardless of whether the statement made a difference to the trial, what does matter is the fact that the offence of perjury had been committed.

State of affairs – The actus reus of this does not consist of acts. Some state of affairs cases are circumstances and other times consequences. In other words this they are ‘being’ rather then ‘doing’ offences. For example, in the case of R v Larsonneur. The actus reus of this case was when the person accused that is a foreigner had come into Britain without permission and was found in the country.

Result crimes – The actus reus of these types of crimes is the fact that the person accused behaviour must have caused a particular result to that crime. For example, murder, the accused person’s act must have caused the death of the victim. The result of the crime must be proved that it was caused by the defendant’s behaviour/act. If the result was caused by an incident that is completely unrelated to the defendant’s act then the defendant will not be liable. However, if the result was caused by a combination of the accuser’s act then s/he will still be liable.

Omissions – Omission means failure to act. The English law does not impose a duty on a person to act in a certain way towards another. Criminal liability is not imposed on anyone for legitimate omissions. The only time that it becomes an omission or duty to act is if there is a special relationship between the defendant and the victim. For example, in the case of Gibbins and Proctor (1918). In this case the defendant was the father of the victim. There was another defendant that was involved who lived with the victim’s father and the child. They both failed to feed the child so the victim died. Their conviction for murder in this situation was upheld. There is also a duty to act when someone has authority or a responsibility over another person. For example, the relationship between a doctor and patient. Criminal liability is imposed on someone that fails to act upon a duty obligatory by the law.

Omissions fall into three categories, which are continuing acts, supervening faults and euthanasia.

Continuing acts – An example of a continuing act was a case of Kaitamaki (1985). The defendant was charged with rape. His defence to this allegation was that at the time when he was penetrating the woman he did not realize that she was not consenting. Nevertheless, he did not stop when he did realize that she was not consenting. At this point the defendant had the necessary mens rea for the act when he carried on with the actus reus, this now became a continuing act.

Supervening fault – This is when a person is fully aware of the danger that s/he will cause but does not do anything to stop the danger from taking place. Criminal liability will be imposed on a person if s/he fails to prevent the hazard that they have caused after they have had the necessary mens rea. An example of this was the case of R v Miller (1982). The defendant was laying on a mattress where he lit a cigarette and fell asleep. He later woke up to find that the mattress was on fire. He did not do anything to put out the fire but moved to another room and went back to sleep. The house caught fire, resulting in £800 worth of damage. The defendant was convicted of arson, as the fire was the defendant’s fault.

Euthanasia – This is method used that helps severely ill people to die. This is a decision that can be made either by the patient themselves or by family and doctors, so that the life support can be reserved. In England euthanasia is still illegal.

Mens rea means "guilty mind" or mental act. The mental element of crime is an important part of criminal law together with actus reus, for a criminal offence to be committed. Mens rea varies from offense to offence. There are three main states of mind that can form the necessary mens rea of a criminal offence, which are intension, Cunningham recklessness and Caldwell recklessness. When a talking about mens rea the subjective and objective tests spring to mind. The subjective test requires looking at what the defendant was thinking at the time of the act, or what the judge and jury think the defendant was thinking at that time. An objective test takes into account what a reasonable person would think in the defendant’s situation.

Intension - In the court room the only concern is what the accuser was thinking at the time of the crime and not what a reasonable person would have thought in the defendant’s position, as intension is a subjective perception. Intension can be separated up into two parts, which are direct intension and oblique intension. Direct intension is where the outcome an act is actually desired. Oblique intension is where the defendant does not desire the obvious consequence of the act, which s/he is fully aware of, but goes ahead and does it anyway.

Recklessness – This means taking an unjustified risk. There are two types of recklessness, which are named after previous cases. These names are R v Cunningham (1957) and MPC v Caldwell. These cases provide two different legal definitions. In the case of R v Cunningham, the defendant broke a gas meter to steal the money inside, and gas leaked out into the house next door. Cunningham’s future mother in law was sleeping there, and became really ill and her life was in danger of extinction. Cunningham was charged under the section 23 of the offences against the person act 1861 with ‘maliciously administrating a noxious thing so as to endanger life. In this case Cunningham actually foresaw the harm that he could have caused but went a head a done it anyway. This is called subjective test. On the other hand, in the case of MPC v Caldwell, the defendant bared a grudge against the hotel owner where he used to work. He started a fire at the hotel, which resulted in some damages, and Caldwell was charged with arson. This type of recklessness is objective. Caldwell stated that he did not realize that there was anyone in the hotel and did not realize that he could have endangered someone’s life. Lord Diplock suggested that a person is only reckless if the consequences of damage to a property is if:

        i.            The defendant does an act that makes an obvious risk that the property would be damaged or destroyed

      ii.            The defendant does not give the consequences to his or her act any thought that the act may cause a risk or the defendant has given thought to the risk but has gone ahead and done it anyway.

Negligence – This is when a person falls below the standards of an ordinary person. This is a very objective test that looks at what and ordinary would or would not do.

An example of mens rea in theft, which is made up of two elements, dishonesty and intension to permanently deprive. In the case of murder, mens rea, which is called malice aforethought, is the intension to commit grievously bodily harm (GBH) or to kill. The prosecution would have to prove that the defendant intended to something, but the decision of whether that was proved would be left to the courts or the jury.

A problem with mens rea is the lack of clarity as the terminology has become very unclear. The borders between recklessness and gross negligence have become vague. The same word such as ‘malice’ has a different meaning according to the different crimes, for example, murder, libel and malicious damage act 1861.

If a man commits the crime of rape against a person then he is forcing sexual intercourse on that person without their consent. This is the actus reus of the offence. The mens rea for such an offence is that the accused should know at the time that the victim has not consented to sexual intercourse.

In the case of involuntary manslaughter the actus reus is that death must be caused by and act. The prosecution must prove the elements of a homicide offence exist. The mens rea for such a crime may be intension or recklessness, depending on the particular offence.

In conclusion, I have given a definition of the elements of crime and given an in depth understanding of actus reus and mens rea, this includes the four types of actus reus crimes and the three main states of mind. I have also given examples of previous cases and the actus reus and mens rea elements, which vary from crime to crime.


1.      Allen M, 2001, Criminal Law, London, Blackstone press limited, fifth edition

2.      Allen M, 2001, Cases and materials on criminal law, London, Sweet & Maxwell limited, eighth edition

3.      Card R et al, 2001, Criminal Law, UK, Butterworths, fifteenth edition

4.      Dobson P, 1999, Criminal Law, London, Sweet & Maxwell limited, fifth edition

5.      Elliot C & Quinn F, 2002, Criminal Law, Harlow, Pearson education limited, fourth edition

6.      Jefferson M, 2001, Criminal Law, Harlow, Pearson education limited, fifth edition

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