Criminal Liability Transferred Malice Mens Rea example essay topic

'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 had a particular mental attitude to that behaviour'. Discuss The prosecution has to prove that both actus reus and mens rea are present in a criminal act, or that the magistrates or judge and jury are satisfied beyond any reasonable doubt of their existence to find the defendant guilty of the crime. If they cannot do so the defendant will be acquitted.

However if the accused is to be found guilty of a crime their behaviour in committing the actus reus must be voluntary. The defendants behaviour will only be found involuntary if they are not in control of their own body for example they may plead insanity or be extremely pressured by someone else to commit the act. In English Law all persons are alleged innocent until proven guilty - Woolmington vs. DPP demonstrates this. Actus reus, Latin for guilty act, can consist of more than just an act; it does not concentrate on the state of mind of the accused but focuses on all the elements of the offence. Depending on the offence, this might include the conditions in which it was committed, and / or the consequences of what was done. Crimes can be separated into four different types, depending on the nature of their actus reus: Action crimes, state of affair crimes, result crimes and Omissions.

Actus reus requires a positive act. The common principle in criminal law is that there is no duty to act, so omissions are not punishable. This is subject to exceptions where the law imposes a duty to act, for example a parent owes a duty to act on behalf of their child. The duty to act will terminate when the special relationship ends. The parent will stop having a duty to act once their child has grown up.

In other cases a duty to act may arise if the person has assumed responsibility for another. Below are two cases on duty to act and omission. Case One Elliot and Quinn 2002, p. 12-13, give an account of: R vs. Stone and Dobinson (1977) Stone's sister Fanny lived with him and his girlfriend, Dobinson. Fanny was mentally ill and became very anxious about putting on weight. She stopped eating properly and became bed bound. Realizing that she was ill, the defendants had made half hearted and unsuccessful attempts to get medical help and after several weeks she died.

The Court of Appeal said that they had accepted responsibility for Fanny as her carers, and that once she became bed bound the appellants were, in the circumstances, obliged either to summon help or else to care for her themselves. As they had done neither they were both found to be liable for manslaughter. Case Two Elliot and Quinn 2002, p 11, give an account of: R vs. Miller (1982) The defendant was squatting in a building. He lay on a mattress, lit a cigarette and fell asleep. Some time later, he woke up to find the mattress on fire.

Making no attempt to put the fire out, he simply went into the next room and went back to sleep. The house caught fire leading to lb 800 worth of damage. Miller was convicted of arson. As the fire was his fault, the court was prepared to treat the actus reus of the offence as being his original act of dropping the cigarette.

Actus reus can be established on the basis of an omission, provided there is a duty to act. Duty alone, however, is not enough and the prosecution must also prove that D was in breach of that duty by failing to act, or by failing to do enough in all the circumstances. (web) Mens rea basically means a guilty mind and refers to the state of mind of the accused at the time the actus reas is committed. Therefore mens rea and actus reus must exist at the same time. Actus non fact reus nisi mens sit rea which, in English, is: an act does not make a person guilty of a crime unless their mind is also guilty. (web) Although there are many types of actus reas (AR) as defined in the various offences, there are only 3 types of mens rea (MR).

These are: . Intention. Recklessness (subjective or objective). Gross negligence Intention This is where the court is concerned solely with what the defendant was intending at the time. Intention can be direct i.e. the result is D's desire or purpose, or oblique, where D is 'virtually certain' his act or omission would lead to the result required by the crime e.g. death in a homicide case.

There has been much debate and several cases on the exact meaning of intention, particularly regarding murder where the mens rea is an intention to kill or to cause serious bodily harm. The law on oblique intent has recently been clarified by the House of Lords in R vs. WOOLLIN 1998 which followed: R vs. Ned rick 1986 CA The Court of Appeal provided a standard direction for the jury as to intent in a murder trial in all cases of oblique intent. Lord Lane said, 'The jury should be directed that they are not entitled to infer the necessary intention unless they feel sure that death or serious bodily harm was a virtual certainty (barring some unforeseen intervention) as a result of the defendant's actions and that the defendant appreciated that such was the case... The decision is one for the jury to be reached on a consideration of all the evidence. ' This direction was confirmed by the House of Lords in Woollin with one small amendment, the substitution of 'find' for 'infer'. Therefore the 2 questions to ask are: was death or serious bodily harm a virtual certainty? did the defendant appreciate that such was the case?

If the answer to both these questions are 'yes' then the jury may find intent. (web) Recklessness R vs. Cunningham 1957 provides the test for subjective recklessness i.e. here D must be aware of a risk (of the consequence) but nevertheless goes ahead and takes the risk - used for most forms of assault. R vs. Caldwell 1982 provides the test for objective recklessness, here D creates and takes an 'obvious' risk i.e. one that a reasonable person would see. It is the mens rea for very few offences e.g. criminal damage. It only requires that a reasonable person would see a risk of the harm, the defendant need not do so. R vs. Cunningham 1957 CA Here, the defendant ripped a gas pay meter from a basement wall in order to steal the money in the meter; gas escaped and seeped through to an neighbouring property where an occupier was overcome by the fumes. The defendant successfully appealed against a conviction, as he was unaware of the risk.

Gross negligence Manslaughter can be committed this way. It could occur where, for example, a ferry captain or train driver is negligent and some of his passengers are killed, or, as in Adomako, a surgeon is negligent and a patient dies. R V Adomako 1994 The House of Lords held that in order to prove gross negligent manslaughter there must be... The usual actus reus of homicide.

A risk of death. A duty of care. Breach of that duty. Gross negligence as regards that breach, which must be sufficient to justify criminal liability (web) Transferred Malice Mens rea can be transferred from the intended victim to the actual victim. The cases overleaf on transferred malice show this: Case One R vs. Latimer (1886) 17 QLD 359. The defendant struck a blow with his belt at Horace Chapple, which recoiled off him, severely injuring an innocent bystander.

The defendant was convicted of maliciously wounding the victim, and appealed on the ground that it had never been his intention to hurt her. The court held that the conviction would be affirmed. The defendant had committed the actus reus of the offence with the necessary mens rea, ie he had acted cruelly. There was no requirement in the relevant act that his mens rea should relate to a named victim. Thus, Latimer's malice was transferred from his intended to his unintended victim. (web) Case Two R vs. Pembliton (1874) LR 2 CCR 119. The defendant threw a stone at another person during an argument.

The stone missed the intended victim, but instead broke a nearby window. He was charged with malicious damage to property and was convicted. The court, in quashing the conviction held, that the doctrine of transferred malice was inapplicable where the defendant's intention had not been to cause the type of harm that actually occurred. His intention to assault another person could not be used as the mens rea for the damage that he had caused to the window. R vs. Latimer 1886 D aimed a blow at E with his belt; he missed and seriously wounded F. He had mens rea for the assault and so this intent was transferred to the actual victim. Coincidence of actus reus and mens rea Fagan vs. MPC [1969] 1 QB 439.

The defendant accidentally drove his car on to a policeman's foot and when he realised, he refused to remove it immediately. It was held that the actus reus of the assault was a continuing act which, while started without mens rea, was still in progress at the time the mens rea was formed and so there was a coincidence of actus reus and mens rea sufficient to found criminal liability. (web) It is a general principle in criminal law that for a person's liability to be recognized it must be shown that the defendant showed the essential mens rea at the time the actus reus was committed - in other words the two must happen together. This is also known as the contemporaneity rule. I believe it is right that to be committed of a crime you need both the guilty act and the guilty mind because this separates the intentional / deliberate crimes that people commit to the accidental crimes where people did not mean to commit an offence.

This system would insure that the dangerous and nasty people in society are punished appropriately and severely, and that the people who did not intend to commit a crime and did not have a guilty mind can be dealt with lightly or acquitted. What I consider disturbing and should not happen is when offenders commit a crime intentionally and plead insanity when they are totally sane, just because they know they will not be punished as severely. When convicting a person of a crime it is not as simple just to say they are guilty and so punish them accordingly, the Crown Prosecution Service (CPS) have to consider many different elements of the person and of the situation they were in before they can convict anyone of a criminal offence. Due to the mens rea and the actus reus this makes the CPS's job even harder because they have to try and establish their mental stability and if they intended the crime, which is much more intense and difficult than just giving out a sentence to the accused.