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NATIONAL LAW UNIVERSITY ODISHA

CRIMINAL LAW I PROJECT ON SUBJECTIVE AND OBJECTIVE ELEMENTS OF CRIME

PROJECT WORK SEMESTER – IV B.A. LL.B.

UNDER THE GUIDANCE OF : MRS. SUMAN DASH BHATTAMISHRA

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CRIMINAL LAW I PROJECT

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TABLE OF CONTENTS

1.

RESEARCH HYPOTHESIS .........................................................................................

2.

INTRODUCTION: CONCEPT OF CRIME ...............................................................

3.

DEFINITIONS OF CRIME .............................................. .............................................

4.

SUBJECTIVE AND OBJECTIVE ELEMENTS OF CRIME

...................................

Actus Reus: Objective Element of Crime .................................................. ........................... Voluntary Conduct ....................................................... ........................................................................................................... .................................................... Types of Actus Reus .................................................... ........................................................................................................ ....................................................

Action crimes ................................................. ..................................................... .............................................................. .........

Result Crimes ................................................. ..................................................... .............................................................. .........

Conduct Crimes ............................................................................................................

Actus Reus includes Circumstances .............................................................................

A state of affairs as an actus reus .............................................. ....................................

Doctrine of causation ........................................................................................................

Omissions.................................................. ...................................................... ....................................................................... .................

By Statutes ....................................................................................................................

By virtue of relationship between persons .................................................. ..................

virtue of contractual relationships ................................................ ........................... Master yourBysemester with Scribd  Read Free Foron 30this Days Sign up to vote title By virtue of Voluntary Undertakings ...........................................................................  & The New York Times Useful  Not useful  By virtue of creating a dangerous situation ....................................... ........................... Special offer for students: Only $4.99/month.

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Mens rea ............................................... ...................................................... ................................................................................ ..........................

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TABLE OF AUTHORITIES

CASES

KING EMPEROR V SREE NARAYAN & ORS, AIR 1949 ORI 48 -----------------------------

R V BRADY [2006] ALL ER (D) 239. -----------------------------------------------------------------

R V CUNNINGHAM, [1957] 2 QB 396. ----------------------------------------------------------------

R V G AND ANOTHER, [2003] UKHL 50.----------------------------------------------------------R V GIBBINS AND PROCTOR (1918) 13 CAR 134. ---------------------------------------------

R V INSTAN (1893) 1 QB 450. --------------------------------------------------------------------------

R V LARSONNEUR [1933], 24 CR APP REP 74. ---------------------------------------------------

R V LE BRUN [1991] 4 ALL ER 673 -------------------------------------------------------------------

R V PITTWOOD(1902) 19 TLR 37. ---------------------------------------------------------------------

R V WOOLLIN AC 82 HOUSE OF LORDS. ---------------------------------------------------------

SECRETARY OF STATE FOR TRADE MARKUS [1976] AC 35. -------------------------You'reVReading a Preview

STEANE 1947 KB 997. -----------------------------------------------------------------------------------Unlock full access with a free trial.

THABO MELI V R [1954] 1 ALL ER 373, PRIVY COUNCIL ---------------------------------Download With Free Trial TREACY V DPP [1971] AC 537 AT 560. -------------------------------------------------------------

WOOLMINGTON V DPP [1935] AC 462 HL(E). ---------------------------------------------------

STATUTES Master your semester with Scribd  Read Free Foron 30this Days Sign up to vote title § 28, TOWN POLICE CLAUSES ACT 1847. ------------------------------------------------------- & The New York Times  Useful  Not useful ILLUSTRATION (B), §299, INDIAN PENAL CODE, 1860. ------------------------------------Special offer for students: Only $4.99/month.

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SIR WILLIAM BLACKSTONE, COMMENTARIES ON THE LAWS OF E NGLAND, VOL. 4, 17TH ED, Sheet Music

5. ------------------------------------------------------------------------------------------------------------

SMITH (WALLACE DUNCAN) (NO. 4) [2004] QB 1418). ----------------------------------------------ARTICLES

WILLIAMS, “THE DEFINITION OF CRIME” (1955) CURRENT LEGAL PROBLEMS 1 6 BOOKS

CATHERINE ELLIOTT & FRANCES QUINN, CRIMINAL LAW, 9TH ED -------------JEREMY HORDER & ANDREW ASHWORTH, PRINCIPLES OF CRIMINAL LAW 103

ED. 2013). -------------------------------------------------------------------------------------------------

JOHN GILLIN, CRIMINOLOGY AND PENOLOGY, 3RD EDN, NEW YORK, P. 9. ------

MICHAEL AND ADLER, CRIMINAL LAW AND SOCIAL SCIENCE, 1933. --------------

PETER SEAGO, CRIMINAL LAW, 3RD ED. -------------------------------------------------------

RUSSELL ON CRIME, JW CECILYou're TURNER (ED), VOL 1, 12TH ED------------------------Reading a Preview

SELLIN T, CULTURE CONFLICTUnlock AND CRIME. PP. 32-33. ----------------------------------full access with a free trial.

SMITH & HOGANS, CRIMINAL LAW, 13TH ED. ----------------------------------------------Download With Free Trial STEVENS & SONS, LONDON, P.39. -----------------------------------------------------------------

WA BONGER, INTRODUCTION TO CRIMINOLOGY. ------------------------------------------


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1.

R ESEARCH HYPOTHESIS

Every criminal act requires four elements i.e. human being, a ctus reus, mens rea and injury.

reus is Latin for wrongful act and Mens rea means guilty mind. For any crime to be complete

two are the requisites. Sine qua non the two, the person could not be convicted. For confe punishment it must be proved beyond reasonable doubt.

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2.

INTRODUCTION: CONCEPT OF CRIME

Crime and immorality are related to each other. In ancient groups these crimes emerges out

feeling that conduct that offended the immortal threatened the common security. Crime

dynamic concept, dependent upon the social development of a people that is upon the fundam interests and values dominating their common beliefs.

It is important to consider the question that crime is different from a civil wrong. It is the com

sense approach towards crime, as pointed out by Williams1 that there is something in a crim

makes it different from a civil wrong. There is one serious issue because it is not the type o which can decide whether it is a tort or a crime as the same act can be both tort and crime.

difficult to establish through physical consequences because it has to be same for same kind o

To understand the origins of criminal law four theories have been discussed regarding the or

of criminal law. These theories are namely, civil wrong, social wrong, moral wrong and g You're Reading a Preview conflict theory. Unlock full access with a free trial.

1. The civil wrong theory which states that criminal law is originated from torts. According t

Download With Free Trial theory, firstly the damaged parties claimed compensation to wrongs done to them and later

of the wrongs came to be adjudged as being deterrent to society at large. Thus the group, and

the state, took over the charge of the treatment in its own hands. This may be true for crime deceit, defamation etc., but provesScribd inadequate for crimes such as treason, sedition etc. that, Master your semester with  Read Free Foron 30this Days Sign up to vote title  the very beginning were regarded as wrongs against society. & The New York Times  Useful  Not useful 2

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Special offer for2.students: $4.99/month. Social Only wrong theory established that criminal law emerged as a national process of integ

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framed against such acts. However, this theory failed to explain many economic crimes and Sheet Music

social crimes like tax evasion but successfully explained conventional crimes against person property.

4) The group conflict theory in which the rival groups were in conflict with each other out of w

the criminal law developed. Offences against the state and public at large were not explain this theory.





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3.

DEFINITIONS OF CRIME

Though it is different to give a precise definition o f crime, many scholars have, from time to while focusing on one or the other dimension of a prohibited act, defined the term crime.

William Blackstone, in his book, Commentaries on the Laws of England, has defined Crim

“an act committed or omitted in violation of public law forbidding or commanding it.”3 How

the term ‘public law’ has different accepted connotations. Austin perceived it to be identical

constitutional law, while some other jurists equate it with positive law or ‘municipal law’. Ea

these interpretations has their own merits and demerits. Perhaps, visualizing these inadequa

Blackstone gave another definition, “a violation of the public rights and duties due to the w

community considered as a community.”4 Sergeant Stephen, modified this definition to rea

crime is a violation of a right, considered in reference to the evil tendency of such violati

regards the community at large.” Again, this definition is inadequate as the essential characte

of a crime is not the violation of aYou're right,Reading but the adoing of prohibited acts (e.g. possessio Preview counterfeit coins).

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Both Blackstone and Stephens have stressed on the harm or injury committed to the commun Download With Free Trial large. Though this may be true for many crimes, not all crimes affect community at large.

there may be acts that are illegal and cause harm to a large section of community, but still ar considered crimes. E.g., the negligent management of a company’s affairs.5

Master your semester with Scribd  Read Free Foron 30this Days Sign up to vote title John Gillin, has also defined crimes in terms of harm done to others. Crimes, he says,  is “…a & The New York Times  Useful  Not useful Cancel anytime.

has been to be actually harmful to society, or that is believed to be sociall y harm Special offer forthat students: Only shown $4.99/month.

a group of people that has the power to enforce its beliefs, and that places such act under th

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Professor SW Keeton has stated that, “A crime today would seem to b e any undesirable act, w Sheet Music

the state finds most convenient to correct by the institution of proceedings for the infliction penalty, instead of leaving the remedy to the discretion of some injured person.”7 Any Act which is punished by state is crime was given by Professor Goodhart.

Crime is defined in Halsbury’s Laws of England as “an unlawful act or default which is an of

against public and renders the person guilty of the act or default liable to legal punishment.”

Other important and noteworthy definitions of crime are as follows. Crime is a serious anti-s

action to which the state reacts consciously by inflicting pain (either punishment or correct

measures).9 Michael and Adler state that, “the most precise and least ambiguous definition of c is that it which defines it as a behavior which is prohibited by the criminal code.”10 Section the IPC 1860 states that ‘an offence denotes a thing made punishable by the code.’ Russell,

classic work, On Crimes says that crime is the result of human conduct which the penal poli the state seeks to prevent.11

You're Reading a Preview BA Wrotley combines moral and legal element and puts forth his definition as follows, “A Unlock full access with a free trial.

is an offence against the law, and is usually an offence against morality, against a man’s s

Download With Trial liable to punishment.”12 duty to his fellow members of society; it renders theFree offender

Sellin, T. regards crime as a deviation from or breach of, a conduct norm. This deviation or b

is punished by society by means of its sanction. But punishment is not only the criterion of v

Master your with  Religion,semester art, education and otherScribd sociological agencies alsoFree reveal value. According to Read Foron 30 Days Sign up to vote this title  definition, crime is an act in violation of the law and the criminal a Not person who does an & The New York Times Useful is useful Special offer forviolation students: Only $4.99/month. of the law.13

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4.

SUBJECTIVE AND OBJECTIVE ELEMENTS OF CRIME

A person cannot usually be held guilty of a criminal offence except two elements are presen actus reus, which means a guilty act; and mens rea, which is Latin for guilty mind. Both of

elements have very specific meaning and they actually refer to more than just moral guilt w

varies according to the crime, but the vital thing to remember is that to be guilty of an offenc

accused must not only have behaved in a particular way i.e. actus reus, but must also usually

had a specific mental approach to that behavior i.e. the mens rea. A small group of offences k

as crimes of strict liability is exception to this rule. The definition of a particular crime, eith

statute or under common law, will contain the required actus reus and mens rea for the off

The prosecution has to prove both of these elements so that the magistrates or jury are sat

beyond reasonable doubt of their existence, If this is not done, the person will be acquitted, English law all persons are presumed innocent unt il proven guilty.14

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ACTUS R EUS: OBJECTIVE ELEMENT

OF

CRIME


Actus Reus comprises of all the elements of crime except the mental element i.e. Mens Re Download With Free Trial actus reus can consist of more than just an act which means that it comprises of all the eleme

the offence other than the mens rea of the defendant. It depends on the offence which may in

the circumstances in which it was committed, and/or the consequences of what was done

Master your with Scribd  example,semester the crime of rape requires unlawful sexual intercourse by a man with a person wi Read Free Foron 30this Days Sign up to vote title  their consent. lack of consent is a surrounding circumstance independently & The New YorkThe Times Not useful  Usefulwhich  exists Cancel anytime.

Special offer foraccused’s students: Only act.$4.99/month. Similarly, the same act may be part of the actus reus of diff erent crimes, depen

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VOLUNTARY CONDUCT

If the accused is to be held liable of a crime, his or her behavior must be voluntary in comm

the actus reus. Where the accused was not in control of his or her own body (when the defen insanity or automatism may be available) or where there is extremely strong pressure

someone else, such as a threat that the accused will be killed if he or she does not com particular offence (when the defense of duress may be available). In such cases the behavior to be involuntary.

Some accidents may be viewed by the court as amounting to involuntary conduct that doe

give rise to criminal liability. However, in R v Brady16 the Court of Appeal considered the

where a young man had drunk heavily and taken drugs and then sat on a low railing on a bal

that overlooked a dance floor. He lost his balance and fell, breaking the neck of a dancer b

who was subsequently wheelchair-bound. While the fall was a tragic accident the Court of A

You're a Preview pointed to his earlier voluntary conduct of Reading becoming heavily intoxicated and sitting precari

Unlock full access with a free trial. on the railing and considered that this voluntary conduct was sufficient to be treated as h

caused the injuries.17


In a much criticized decision of R v Larsonneur ,18 a Frenchwoman was arrested as an il

immigrant by the authorities in Ireland and brought back to the UK in custody, where she

charged with being an alien illegally in the UK and convicted. This is not what most of us w Master your semester with Scribd  Read Free For 30this Days Signcourts’ up to vote on titleat the time. describe as acting voluntarily, but it apparently fitted the definition  & The New York Times  Useful  Not useful probably stricter than a decision would be today, but it is important to realize that the co Special offer for students: Only $4.99/month.

define ‘involuntary’ quite narrowly at times.19

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TYPES OF ACTUS R EUS

ACTION CRIMES

The actus reus in action crimes is simply an act, the consequences of which are immaterial

example, perjury is committed whenever someone makes a statement which they do not belie

be true while on oath. Whether or not that statement makes a difference to the trial is not imp to whether the offence of perjury has been committed. RESULT CRIMES

There are many examples of result crimes some of which are Manslaughter, Murder, woun

etc. In this type of crime many authors argue that it is not based on conduct but only on res

crime.20 In short the law features only on the result and not on the conduct which causes r

Therefore actus reus can be defined as the result of such conduct which law seeks to prevent.

stabbing a person is the actus reus and not the dead person with a knife at his back. The law You're about Reading Preview less interested in the conduct that brings thearesult in a ‘result crime’ than in a ‘con crime’.22


CONDUCT CRIMES


The arrangement of offences into ‘conduct crimes’ and ‘result crimes’ may occasionally

awkward and futile. Nevertheless, it is always essential to identify the fundamental elements

Master your with Scribd offence, semester and use of this classification sometimes highlights key changes between offences. T  Read Free Foron 30this Days Sign up to vote title  the offence of indecent exposure formerly contained within the Town Clauses Act 18 & The New York Times Not useful  Useful Police Cancel anytime.

Special offer for28, students: $4.99/month. was aOnly result crime, because it required p roof that D’s conduct caused residents or ‘passen

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The arrangement of offences into ‘conduct crimes’ and ‘result crimes’ can be a somewhat Sheet Music

process, and may not always be particularly helpful. Rape, for example, does not really lend

to analysis in such terms. Nevertheless, it is alwa ys necessary to identify the constituent elem

of an offence, and the classification can sometimes highlight essential differences between

alternative charges.25 Thus, the Vagrancy Act 1824, S. 4, creates an offence of indecent exp

‘with intent to insult a female’, but does not require that any female should either see the exp

or feel insulted by it. It accordingly creates a conduct crime, which may be contrasted wit

offence created by the Town Police Clauses Act 1847, S. 28, under which the prosecution

prove that D’s indecent exposure caused someone to be ‘annoyed, obstructed or endangered

The distinction between conduct crimes and result crimes may also be important in determ

jurisdiction over cross-frontier offences.27 The general rule is that jurisdiction over a conduct c

depends on proof that some part of the relevant conduct occurred within England or W

whereas jurisdiction over a result crime ordinarily depends on at least some part of the prosc

result taking place there.28 If so, jurisdiction may arise where any element of the offence o You're Reading a Preview within England or Wales. Unlock full access with a free trial. ACTUS REUS INCLUDES CIRCUMSTANCES

Download With Free Trial The actus reus comprises of conduct and in cases, of its consequences, and also o circumstances in which the conduct happens. If circumstances are included in the de finition

crime then they are relevant like consequences. For example, theft needs that there shou

Master your semester with Scribd  dishonest appropriation of property belonging to another.Read If no one has the ownership of pro Free Foron 30 Days Sign up to vote this title  & The New Times Not useful  Useful then it York is not theft as it will not constitute actus reus. In this case an  essential element of crim Special offer for students: Only $4.99/month.

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missing no matter it was dishonestly appropriated. In child sex offences, the conduct of s

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Documents A STATE OF AFFAIRS AS AN ACTUS REUS

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A crime may be committed although there is no “act” in the normal sense instead there may

specified state of affairs which is deemed sufficient. A "state of affairs" refers to the circumsta

at a particular place and time which are to be distinguished from an act which is doing some

such as stabbing somebody or taking property and an omission which is not doing something as failing to take care of your child. 30 For example in the case of R v Larsonneur 31, In this

the Defendant was convicted under the Aliens Order Act1920 of “being an alien to whom lea

land in the UK has been refused”. The defendant was found in the UK after she had been br

from Ireland to the UK against her will in the custody of the police. Note, notwithstanding th

that the accused was brought to the UK against her will, she was still convicted of the crime a

was found in the UK after she was strictly prohibited from being there. The state of affairs i instance was constituted when Ms.Larsonneur was “found in the UK”.32 DOCTRINE OF CAUSATION


Unlock full access with a free trial. The doctrine of causation is based on the simple premise that ‘a man can only be held liab

the consequence of his own actions’.Download The entireWith doctrine is effectively based on the interpret Free Trial

of a single word: ‘consequence’. A liberal definition of the word consequence extends not to

direct acts of a person but also to the acts done through innocent agents like cases of duress, o

Master your semester with Scribd  Free Foron 30“A Days Sign up to vote this title Illustration (b) under section 299 of the Indian Penal Code,Read 18 60 (“IPC”): knows Z to be b & The New York Times Not useful  Useful a bush. B does not know it. A, intending to cause or knowing it to be likely to cause Z’s d

of infants or insane people to commit crime. This principle of causation is best illustrate

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induces B to fire at the bush. B fires and kills Z. Here B may be guilty of no offence, but A

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aforementioned illustration, causation is also used to establish the link between the mens re Sheet Music

the final actus reus.34

According to the 5th edition of Black's Law Dictionary35, “cause of an injury is the prima

moving cause, or that which in a natural and continuous sequence, unbroken by any eff

intervening cause, produces the injury and without which the accident could not have happ

[Causa sine qua non], if the injury be one which might be reasonably anticipated or foreseen natural consequence of the wrongful act.”

The causation must therefore be a sequence of reasonable anticipated or foreseeable na

consequence from the first link to the consequence in the form of an unbrok en chain. A perso

be held responsible for all the consequences of his act that can be reasonably expected fro

same. This test of ‘reasonable expectation’ is an exclusionary test36, that is, each consequenc

to be ruled out based on the individual circumstances. In a co mplete chain of causation, ever is a direct and reasonably expected consequence of the previous link. For example, A fires a

at a very close range with the intention to kill B. The initial act of A i.e. pulling the trigger i You're Reading a Preview

first link of the chain of causation. As a result of pulling the trigger (Link 1), the bullet leave Unlock full access with a free trial.

(Link 2) and hits B’s heart (Link 3). The walls of the heart collapse (Link 4) and B’s heart Download With Free Trial pumping blood to the brain (Link 5) leading to B’s death (Result). The chain of causation h complete for it was a natural unbroken sequence. Pulling the trigger by A was therefore the of the final result, actus reus, the death of B.

Master your semester with Scribd  In R v Le Brun , a man punched his wife and she fell down While Read Free Foron 30this Days Signunconscious. up to vote title attempting  & The New York Times Useful Not useful   and drag his wife, she slipped from his grasp leading to a fracture to her skull and subseq 37

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death. The man was convicted for manslaughter. In this appeal, the cou rt discussed the remot

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Indian case is King Emperor v Sree Narayan & Ors,38 where the accused after a quarrel wi Sheet Music

victim knocks her unconscious. Believing the victim to be dead, he later burns her “body”, k the victim.

In the aforementioned cases, the accused is convicted despite the lack of mens rea and the ab

of a direct act resulting into death. The doctrine of causation thus cannot be completely sepa

from other elements of crime and encroaches upon the domain of both actus reus and men

However, analyzing the doctrine of causation as broad phenomenon overlapping with men

and actus reus yields no information regarding about the characteristics of the doctrine a

beyond scope of this paper.39 Therefore, we must limit the definition of causation to si analyzing the consequence as ‘a chain starting from the initial act to the final consequence,

reus' Simply put, a person is liable for all consequences of his act as long as the chain of cau remains unbroken.40 There are cases where the chain of causation may not be complete. This can happen due

external act, Novus Actus Interveniens, orReading the chain may just cease to exist. An example o You're a Preview latter is the case where X fires a bullet at Y, the bullet Y. Eventually, Y dies due Unlock full but access with a free misses trial.

age, here the chain of causation ceases to exist after the bullet missed Y and therefore X cann Download With Free Trial held liable for the death of Y. Therefore, in applying the doctrine of causation, first a cha causation has to be established and then the continuity of the chain is ensured. O Master your semester with Scribd & The New York Times

MISSIONS


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a general rule of law, there is no obligation on the part of any person to act to pr Special offer forAs students: Only $4.99/month.

the. Citizens are generally not required to be their brother’s keeper. For example: If a pedest

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impliedly imposes liability for a failure to act and ;(ii)where a person is under duty to act ar Sheet Music

at common law or under statute by virtue of the following: (a) The relationship between persons, certain persons are liable to act; (b) Contractual relations; (c) Voluntarily assuming responsibility for another person’s care;

(d) Creating a dangerous situation. These examples are the more common examples and ar

meant to be exhaustive as once it can be proven that a person had a duty to act, then such p is under a legal obligation to do so. BY STATUTES

Many statutes also make omissions criminal; failure to providespecimen of breath for a breath failure to report an accident within a prescribed period etc. BY VIRTUE OF RELATIONSHIP BETWEEN PERSONS


full access with(3 a rd free trial. As noted in the Text, Criminal LawUnlock by Peter Seago Edition), certain persons are liable t

because of their status. For example: sea captains are under a duty to take reasonable Download With Free Trial protect the lives of their passengers and crew. Parents are under an obligation to look aft

welfare of their children and guardians their wards. For example: The same principle was foll in R v Gibbins and Proctor 41.

Master your semester with Scribd Read Free Foron 30this Days Sign up to vote title BY VIRTUE OF CONTRACTUAL RELATIONSHIPS & The New York Times  Useful  Not useful Cancel anytime.

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Special offer forItstudents: Onlyto $4.99/month. is possible bring oneself under a duty to act by virtue of contractual obligations. For exa

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In that case the accused, who was under a contractual obligation to look after a railway Sheet Music

crossing, negligently left his post with the gates in such a position as to suggest to road user

no trains were coming. As a result a man was killed when his cart, which was crossing the ra lines, was struck by a train.

The accused was charged with causing the death of the deceased bygross negligence. He a

that he owed no duty of care to the users of the crossing, but rather that his contract was wit

railway company and as such his contractual obligations lay solely with the rai

company. The Court held however that this contractual undertaking was sufficient to plac

under a duty to the road users and as such the prosecution was able to establish the actus reu BY VIRTUE OF VOLUNTARY UNDERTAKINGS

A person may undertake to be his brother’s keeper. Where a person voluntarily ass

responsibility for another’s care and then simply fails to fulfill that undertaking, he or she

occasioned. There is no need to prove a legal obligation to undertake the duty orthat is obli You're hasvoluntarily Reading a Preview y contract, it is sufficient if the defendant and gratuitously undertaken the ca Unlock full with aof R free trial. another. The same principle was followed inaccess the case v Instan43.

Download WithSITUATION Free Trial BY VIRTUE OF CREATING A DANGEROUS

Where a person has created a dangerous situation, he is deemed to be under a duty to

reasonable steps to avert that danger. If for example a person saw two persons trapped in a bu

Master your semester Scribd car, he would be under no with duty to try to assist them, if however he was the person whowas sm Read Free Foron 30this Days Sign up to vote title  next toYork the car as it was being filled with gasoline and as a result into flames, he & The New Times Useful it exploded  Not useful Special offer for students: Only be thought to $4.99/month. be under a duty to act.

Cancel anytime.

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MENS REA

Mens rea is the Latin f or ‘guilty mind’ and traditionally refers to the state of mind of the p

committing the crime. The required mens rea varies depending on the offence, but there are

main states of mind which separately or together can constitute the necessary mens rea

criminal offence: intention and recklessness. When discussing mens rea, we often refer t

difference between subjective and objective tests. Put simply, a subjective test invo lves look

what the actual defendant was thinking (or, in practice, what the judge or jury believe the defe

was thinking), whereas an objective test considers what a reasonable person would have tho

in the defendant’s position. The courts today are showing a strong preference for subjective for mens rea.

INTENTION

Intention is a subjective concept: a You're court isReading concerned purely with what the particular defen a Preview

was intending at the time of the offence, and not what a reasonable person would have intend Unlock full access with a free trial. the same circumstances.

Download With Free Trial To help comprehension of the legal meaning of intention, the concept can be divided into

direct intention and indirect intention. Where the consequence of an intention is actually des

it is called direct intent – where, for example, Ann shoots at Ben because Ann wants to kill

Master your semester with Scribd  However, a jury is also entitled to find intention where a defendant did not desire Read Free Foron 30this Days Sign up to vote title a result, bu  & The New York Times Useful Not useful   a virtually certain consequence of the act, and the accused realizes this and goes ahead any Special offer for students: Only $4.99/month.

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This is called indirect intention (or sometimes oblique intention). An example might be where

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possible example as the case of Steane45 (1947) which concerned the offence of assistin Sheet Music

enemy with intent to do so. Steane had given a broadcast for the Nazis in order to save his fa

from being sent to concentration camps. The accused did not desire to help the Nazis and found to be not guilty of the offence.





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R ECKLESSNESS

In everyday language, recklessness means taking an unjustified risk. Its legal definition

radically changed in recent years. It is now clear that it is a subjective form of mens rea, s focus is on what the defendant was thinking. A subjective test:

Following the House of Lords judgment of R v G and another 46, recklessness will alwa

interpreted as requiring a subjective test. In this case, the House favoured the definitio

recklessness provided by the Law Commission’s Draft Criminal Code Bill in 1989 under wh person acts recklessly with respect to – (i) a circumstance when he is aware of a risk that it exists or will exist; (ii) a result when he is aware of a risk that it will occur;

and it is, in the circumstances known to him, unreasonable to take the risk. Defendants must al

be aware of the risk in order to satisfy this test of recklessness. In addition, their conduct must You're Reading a Preview been unreasonable. It would appear that any level of awareness of a risk will be sufficient, pro Unlock full access with a free trial.

the court finds the risk taking unreasonable. Until the case of R v G and another 47, the leading

48 With on subjective recklessness was R v Download Cunningham . Free In R Trial v Cunningham49, the defendant br

gas meter to steal the money in it, and the gas seeped out into the house next door. Cunningh

prospective other-in-law was sleeping there, and became so ill that her life was endang Cunningham was charged underScribd s.23 of the Offences against the Person Master your semester with Read Free Foron 30this Days Sign up to vote title ‘maliciously administering a noxious thing so as to endanger life’. & The New York Times  Useful  Not useful Special offer for students: Only $4.99/month. 5.

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COINCIDENCE OF ACTUS R EUS AND MENS R EA

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continuing acts, which are described on p. 16, and the interpretation of a continuous series o Sheet Music

as a single transaction. An example of the latter occurred in Thabo Meli v R (1954). The defen

had attempted to kill their victim by beating him over the head, then threw what they assume

a dead body over a cliff. The victim did die, but from the fall and exposure, and not from

beating. Thus there was an argument that at the time of the actus reus the defendants no longe

the mens rea. The Privy Council held that throwing him over the cliff was part of one series o

following through a preconceived plan of action, which therefore could not be seen as sep

acts at all, but as a single transaction. The defendants had the required mens rea when

transaction began, and therefore mens rea and actus reus had coincided. Another example o single transaction doctrine is the case of R v Le Brun (1992).50 The defendant had punched

on the jaw, knocking her unconscious. He then tried to carry her from the garden into the h

As he attempted to carry her, he dropped her, fracturing her skull and it was this injury w

caused her death. The defendant had the mens rea for manslaughter but he did not comm

actus reus until the later time when he dropped his wife. The Court of Appeal applied the s

Reading a Preview transaction doctrine and Le Brun’s You're conviction for manslaughter was upheld. It noted, how

Unlock would full access with a freeapplied trial. that the doctrine of a single transaction not have if the defendant had been t

to help his wife when he subsequently dropped her.51 Download With Free Trial 6.

MENS R EA AND MOTIVE

It is essential to realize that mens Scribd rea has nothing to do with motive. To illustrate this, tak Master your semester with  Read Free Foron 30this Days Sign up to vote title  example of a man who suffocates his wife with a pillow, intending to kill her because s & The New York Times  Useful  Not useful Cancel anytime.

a terminal disease which causes her terrible and constant pain. Many people w Special offer forafflicted students: with Only $4.99/month.

say that this man’s motive is not a bad one – in fact many people would reject the label ‘mu

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7.

CONCLUSION

Thus actus reus and mens rea are the two most important element in crime and any court punish a person only if he is found to perform certain act with the guilty mind. If the performed without guilty mind then the person would not be convicted. The coincidence reus and mens rea is necessary for conviction of an accused.

The law declares tests to be used to determine the substantive nature of crime as if any o

elements of crime are missing or their presence and working is not proved beyond reaso

doubt, the whole trial would fall. Similarly the law cannot be made strict as the freedom of inn needs to be preserved.

In common law the accused is presumed innocent until proven guilty beyond reasonable d

For a person to be convicted, both the objective and the subjective test are used by the I courts. Decisions are given both on direct as well as circumstantial evidence.

You're Reading a Preview The elements of crime are the best way to sentence a person as it gives substantive realty o Unlock full access with a free trial.

situation and the accused and at the same time helps law in not making mistakes or misjudg

person by pronouncing him guilty only at the stage preparation or incarcerating an innoce Download With of Free Trial



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