Ch 2, The Elements of an Offence

Introduction
2.1 General analysis of criminal offences
2.2 Limitations on the value of the Latin terms actus reus and mens rea
2.3 Proof of the ingredients of an offence
2.4 Lawful excuse

Reflect and review

Actus reus
This is the ‘external’ element of a crime
– i.e. conduct, circumstances and, in the case of a result
crime, the consequences.

Mens rea This is the ‘internal’ element of a crime. It must be proved that at the time the
defendant was responsible for the actus reus of the offence with which he is charged, he
behaved with the state of mind relevant to that offen

The definition of every offence will be found either at common law or in a section of a
statute. It is the definition of an offence which contains its elements.

-Where the offence is one which requires proof of mens rea, both elements (i.e. actus reus
and mens rea) must be proved in order to secure a conviction.
-Furthermore, it must be
proved that the mens rea coincided with the actus reus (see Chapter 6).
-Note that even if a defendant committed the actus reus of the offence with the appropriate mens rea he or she
may be able to raise a defence which would negate any criminal liability.

Murder, a common law offence, is defined as ‘the unlawful killing of a human being with
malice aforethought’.†

† ‘Malice aforethought’ means
‘intention to kill or intention to
cause grievous bodily harm’.

(Moloney [1985] AC 905).

The actus reus of this offence is therefore ‘the unlawful killing of a human being’ and the
mens rea is ‘malice aforethought’. On a charge of murder, therefore, the prosecution must
prove beyond reasonable doubt that the defendant unlawfully killed a living person and
at the time he or she carried out that killing either intending to kill or intending to cause
grievous bodily harm (Moloney [1985] AC 905).

† A ‘term of art’ is a technical term
which has a special significance.

2.2 Limitations on the value of the Latin terms actus reus and mens rea

Stephenson J in case of Tolson (1889 54JP
It appears confusing to call so many dissimilar states of mind by one name
- mens rea
not only likely to mislead but was actually misleading.

2.2 Limitations on the value of the Latin terms actus reus and mens rea

Miller [1983] 2 AC161, Lord Diplock
suggest some positive act and that a failure or omission to act is insufficient to give rise to criminal liability

Offence that does not require element of mens rea neither in definition nor in the interpretation by the court

2.3 Proof of the ingredients of an offence

-Burden of proof, of offence having been committed beyond reasonable doubt, is on prosecution.

-It follows therefore that, whether the offence is one of strict liability or one which
requires proof of mens rea, if all of the elements of the actus reus cannot be proved the
defendant cannot be criminally liable, however guilty his mind is.†

2.3 Proof of the ingredients of an offence

Authority for the proposition of no conviction for meerly on the basis of mens rea
-all the elements of the offence must be proved before a person can be criminally liable
no matter however guilty his mind is
{
Even though obtaining by false pretences does not exist as an offence any more, the principle
expounded in this case (i.e. that all the elements of an offence must be proved before a
person can be criminally liable) remains good law.
}
-process of selling car,
-issue of encumbrances free
-false assertion at time of selling car
-vxd-
- v accepts d's car in part exchange of the sale of his car

2.3 Proof of the ingredients of an offence


section 1(1) of the Criminal Damage Act 1971,
which defines the offence of criminal damage as occurring where a person:
…without lawful excuse destroys or damages any property belonging to another intending
to destroy or damage such property or being reckless as to whether any such property
would be destroyed or damaged…

2.4 Lawful Excuse

This may be an element of offence and thus burden rests on the prosecution to prove the D caused the damage without lawful excuse

However, this could be an element of defence in which case D has to prove s/he did have a lawful excuse