ESSENTIAL READING Criminal Law subject guide Lesson 02

ESSENTIAL READING � Criminal Law subject guide – Lesson 02 � Wilson, Chapter 4 ‘Actus reus’, Sections 4. 1 ‘Introduction’, 4. 2 ‘Elements of liability’ and 4. 3 ‘Interrelationship of actus reus, mens rea and defences’. Essential Listening � Audio Presentation on the VLE on Chapter 02

�Who �To has to prove a criminal case? (Burden of proof) what extend should that party prove the criminal case? ( degree/extent of proof)

THE BURDEN OF PROOF �The burden of proof of a criminal case is with the prosecution

DEGREE OF PROOF �a criminal case has to be proved beyond reasonable doubt (Woolmington v. DPP) In special situations the burden can shift to the defence

CIVIL E. G: - CONTRACT CASES �Burden of proof = on the party that starts the litigation �Degree of proof = on a balance of probability

� What does proving a case mean?

�Several ingredients go into the preparation of a cake �Ingredients would vary from cake to cake

� SHORTENING AGENT- FAT OIL � RAISING AGENT- EGGS BAKING SODA � FSOME FORM OF FARINE - FLOOR

� Foundation � Structure � Roof

�Proving the elements of the crime An offence or crime consists of several elements or building blocks. (like the ingredients of a cake) The prosecution will be expected to prove these elements

THE ACTUS REUS & THE MENS REA

�The nuts & the bolts of a crime ACTUS REUS MENS REA

Offence definition Murder Unlawful killing of a human being with malice aforethought

Offence definition Theft Dishonestly appropriating property belonging to another with the intention of permanently depriving the other of it

Offence definition Rape A person (A) commits an offence if — (1) he (A) intentionally penetrates the vagina, anus or mouth of another person (B) with his penis, (2) (B) does not consent to the penetration, and (3) (A) does not reasonably believe that B consents.

Definition unlawful killing of a human being with malice aforethought proving murder involves proving both 1. There was an unlawful killing of a human being 2. It was done with malice aforethought

Proving a case involves proving the following 1. there was an appropriation 2. What was appropriated was property 3. That the property belonged to someone else 4. The appropriation was done dishonestly 5. There was an intention to deprive the other person of the property

Prohibited conduct (external element) Wrongdoing component Physical element ACTUS REUS Prohibited state of mind (internal element) Fault element Mental element MENS REA UNLAWUL KILLING OF A HUAMN BEING MALICE AFORETHOUGHT (WHICH MEANS 1. INTENTION TO KILL OR 2. INTENTION TO CAUSE GRIEVOUS BODILY HARM

Wrongdoing component Physical element ACTUS REUS Fault element Mental element MENS REA 1. There must be an 1. Dishonestly appropriation 2. Intention to 2. What is stolen must be permanently property deprive the other 3. It should belong to of it someone else

RAPE ACTUS REUS of Rape MENS REA of Rape 1. Intentionally penetrating the vagina, anus or mouth of another person 2. With the penis 3. The other person does not consent 1. Intentional penetration 2. lack of a reasonable belief that the other person is not consenting

ACTUS REUS Where’s the ACTUS REUS and the MENS REA Definition

DEFINITION Where’s the definition Statute or common law

Definition is in � Statute e. g Theft [ Section 1(1) ]Theft Act Rape [ Section 1(1) ] Sexual Offences Act � Common law Murder – definition traced to writings of Chief Justice Sir Edward Cooke (1552 -1634)

� The package of behaviour which the law prohibits. ” � It’s a Package of 3 – C’s It includes 1. The defendants conduct 2. Circumstances 3. Result /consequences Conduct Circumstances result

CONDUCT (conduct can be an act /Omission) � In Murder – an act/omission which causes the death of the victim � In Theft – appropriating � In Rape – internationally penetrating the anus , mount or vagina with the penis � In Criminal damage – any act/omission that destroys or damages property

RESULT/CONSEQUENCE � In Murder – the person dying � In Criminal damage – the property getting destroyed or damaged

CIRCUMSTANCES � In Murder – the person killed must be a human being � In Theft – the property stolen must belong to someone else � In Rape – Victim does not consent � In Criminal damage – 1. the property destroyed or damage must belong to someone else 2. there should not be a lawful excuse to destroy/damage property

�Prosecution must prove all the elements of the actus reus beyond reasonable doubt �They must prove all 3 C’s conduct circumstances consequences

Serious crimes- require proof that the accused was blameworthy in doing what he did (state has a moral authority to punish its citizens only if they deserve it) [theory of retribution] if you deliberately break the window of the lecture hall the, cfps might punish you severely but if you break it accidently they may take a light view of it on the basis that it is not fair to punish you. ( can you relate this to the above theory? )

blameworthy states of mind commonly used to justify punishment (Mens rea) � Intention � Recklessness � Willfulness � Knowledge � Belief & Negligence ( this is not a form of mens rea)

� Prevention � Deterrence Utilitarian's ( those who believe that the best moral action is the one that maximizes utility) reject- punishment is deserved ( 2 wrongs don’t make a right) they feel punishment should be for prevention and deterrence. � Modern view which favours retribution- serious crimes require D to be conscious of his wrongdoing. ( here prevention cannot be justified)

Criminal attempts – no unanimity with regard to correct theory that should apply Offences where prevention rather than moral wrongdoing as their primary focus These offences often have 1. a fault element which requires no conscious awareness of wrongdoing ( careless driving, gross negligence mans 2. No fault element at all ( strict liability offences )

�What, in your opinion is the best theory of punishment?

� Reflect a conscious attitude of the accused to what the are doing � They are aware of what they are doing. They not only know that they are doing wrong but do it nevertheless (So they deserve to be punished)

� They block criminal liability � Although the elements of the offences may be present. � This is the 3 rd element of criminal liability.

� Insanity � duress self defence

1 st moral claim- to avoid liability 2 nd moral claim- to avoid liability What the accused did is wrong but it is unfair to punish him. What the accused was not wrongful. This is because of the special circumstances. This is because they were, in deprived of ‘the capacity or a fair opportunity to conform’ to the prohibition ( H. L. A Hart) e. g. duress and insanity e. g. self defence These defences are excuses ( conduct is excused) These defences are justifications. ( conduct is justified)

In addition to proving the actus reus & the mens rea �The prosecution will have to prove that the defendant has no defence. Such a situation would arise only if the defendant is relying on a defence �

� when analysing a case is always therefore to ask the following questions in the following order. 1. Has the accused performed a prohibited act? 2. Was that accompanied by a specified state of mind or mental element? 3. Does the defendant have a defence

� Self defence � Duress � Automatism necessity consent insanity Definition actus reus mens ra

� So if an element of the offence definition is not present but the accused does not know this when they are acting, they still escape liability. � if A has intercourse with B believing that she is not consenting when in fact she is consenting A is not guilty of rape, since one of the basic elements of the offence (actus reus) is absent ( D is getting aquitted not because he succeeds in the defence of consent but because the circumstance element of the actus reus is not established)

� Dadson’s case – activity 2. 1 of the subject guide (page 15). For facts read Wilson (textbook) 4. 3 � Wilson says it fair to convict Dadson. Do you agree?

� Dadson shot a person attempting to escape with stolen goods ( this is unlawful) � Not unlawful to shoot a felon in similar circumstances � Dadson didn’t know victim was a felon

� If the defendant is relying on a defence – he should be aware of the circumstances ( if not he wont be able to succeed in the defence) � If the defndant is arguing that the actus reus /mens rea is not established D will have the right to get an acquittal although he was not aware of the circumstances

� If the defendant is relying on a defence – there must not only be a good reason for the accused acting as they do, but also the accused must act for that reason ( if not he wont be able to succeed in the defence) � If the actus reus /mens rea is not present and the D does not know this D will have the right to get an acquittal

A crime Actus reus Mens rea

CONDUCT CIRCUMSTANCES CONSEQUENCES Act or Omission Situational crimes Causation