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Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .12
2.1
2.2
2.3
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Introduction
This chapter introduces you to some of the key terms and principles in criminal law.
Essential reading
The prohibited conduct element in crime is also known as the external element,
the actus reus or the wrongdoing component.
The mental element is also known as the internal element, the mens rea, the
guilty mind or the fault element.
Use any of these as you see fit. I shall use all of them in this subject guide but I shall
tend to use actus reus and mens rea most often.
The actus reus and mens rea of a crime is to be found embedded in its definition. So
assume you are asked to decide whether it is murder where A has killed B, his wife, by
poisoning her drink with cyanide in revenge for cheating on him with C. Your task is to
work out whether A has committed the actus reus of murder, and whether he did so
with the mens rea for murder.
To do this you will need to discover the definition of the crime of murder. If you turn
to Wilson and look up murder in the index you will see that the definition appears
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Did he do so intending to kill or cause grievous bodily harm to B? Answer, also yes.
When we look deeper into the criminal law we will discover that there is in fact a third
element in criminal liability, namely the absence of any defence. The third question to
ask, therefore, is:
Does A have a defence for the killing? The answer to this question is no. Revenge is
not a defence and so A is guilty of murder.
You should always follow this method when analysing a problem, whichever crime you
are considering.
intention
recklessness
dishonesty
knowledge
belief.
What you should notice about all these forms of mens rea is that they are states of
mind. In other words they reflect a conscious attitude of the accused to what they
are doing: put simply, they are aware of what they are doing. Having such an attitude
is what makes them deserving of punishment, since they are consciously defying a
standard of conduct binding on them. So a person who intentionally kills another,
2.2.3 Defences
The third element in criminal liability is that of criminal defences. Defences block
criminal liability although the elements of the offence (actus reus and mens rea) are
present. Some of the more common defences are self defence, insanity, consent,
duress and necessity.
Defences involve one of two moral claims to avoid liability.
The first is that it would be unfair to punish the accused, although they have done
wrong, because they were, in the words of H.L.A. Hart, deprived of the capacity
or a fair opportunity to conform to the prohibition (Punishment and responsibility
(Oxford: Clarendon Press, 1968)). Such defences, of which duress and insanity are
examples, are known as excuses.
The second is that although the definition of the offence is satisfied the act of the
accused was not wrongful because of the special circumstances which obtained.
Such defences are known as justifications. An example is self defence.
The fact that defences operate outside the boundaries of the offence definition has
one very significant consequence. 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. For
example, 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. This is not the case with defences. To rely 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.
Activity 2.1
Read Wilson, Section 4.3 Interrelationship of actus reus, mens rea and defences and
consider whether the court was right to convict Dadson of malicious wounding and
what problems the case provokes.
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