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The actus reus in criminal law consists of all elements of a crime other
than the state of mind of the defendant. In particular, actus reus may
consist of: conduct, result, a state of affairsor an omission.
Conduct - the conduct itself might be criminal. Eg. the conduct of lying
under oath represents the actus reus of perjury. It does not matter that
whether the lie is believed or if had any effect on the outcome of the case,
the actus reus of the crime is complete upon the conduct.
Examples of conduct crimes:
Perjury
Theft
Making off without payment
Rape
Possession of drugs or a firearm
Result - The actus reus may relate to the result of the act or omission of
the defendant. The conduct itself may not be criminal, but the result of the
conduct may be. Eg it is not a crime to throw a stone, but if it hits a person
or smashes a window it could amount to a crime.Causation must be
established in all result crimes.
Examples of result crimes:
Assault
Battery
ABH
Wounding and GBH
Murder & Manslaughter
Criminal damage
State of affairs - For state of affairs crimes the actus reus consists
of 'being' rather than 'doing'. Eg 'being' drunk in charge of a vehicle (Duck v
Peacock [1949] 1 All ER 318 Case summary) or 'being' an illegal alien (R
v Larsonneur (1933) 24 Cr App R 74 case summary).
Mens rea in criminal law is concerned with the state of mind of the
defendant. Most true crimes will require proof of mens rea.
Where mens rea is not required the offence is one ofstrict
liability. There are three main levels of mens
rea: intention, recklessness andnegligence.
Intention
Intention requires the highest degree of fault of all the levels
of mens rea. A person who intends to commit a crime, can
generally be said to be more culpable than one who acts recklessly.
Intention differs from motive or desire (Per Lord Bridge R v
Moloney [1985] AC 905. Thus, a person who kills a loved one dying from a
terminal illness, in order to relieve pain and suffering, may well act out of
good motives. Nevertheless, this does not prevent them having the
necessary intention to kill see R v Inglis [2011] 1 WLR 1110 Case
summary .
Direct intent:
The majority of cases will be quite straight forward and involve direct intent.
Direct intent can be said to exist where the defendant embarks on a
course of conduct to bring about a result which in fact occurs. Eg D intends
to kill his wife. To achieve that result he gets a knife from the kitchen,
sharpens it and then stabs her, killing her. The conduct achieves the desired
result.
Oblique intent:
Oblique intent is more complex. Oblique intent can be said to exist where
the defendant embarks on a course of conduct to bring about a desired
result, knowing that the consequence of his actions will also bring about
another result. Eg D intends to kill his wife. He knows she is going to be on a
particular aeroplane and places a bomb on that aeroplane. He knows that his
actions will result in the death of the other passengers and crew of the
aeroplane even though that may not be part of his desire in carrying out the
action. In this situation D is no less culpable in killing the passengers and
crew than in killing his wife as he knows that the deaths will happen as a
result of his actions.
2.
3.
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The degree of probability was still causing problems and the cases of R
v Maloney and R vHancock and Shankland were reviewed by the Court of
Appeal in R v Nedrick which reformulated the test.
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The authority of this test was questioned in Woollin. The House of Lords
largely approved of the test with some minor modifications setting the
current test of oblique intent:
R v Woollin [1999] AC 82
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"Where the charge is murder and in the rare cases where the simple direction is not enough,
the jury should be directed that they are not entitled to find 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 upon a consideration of all the evidence.
In the context of criminal damage, originally the leading case in this area
of R v Cunninghamheld that a subjective test applied to
determine recklessness:
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Negligence plays a minor role in criminal liability. It used to form the basis
of some driving offences but this has largely been superseded by
recklessness. Negligence adheres to anobjective standard. This is strictly
applied as can be seen in McCrone v. Riding [1938] 1 All ER 137 where
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Strict Liability
Strict liability crimes are crimes which require no proof of mens rea in
relation to one or more aspects of the actus reus. Strict liability offences
are primarily regulatory offences aimed at businesses in relation to health
and safety. Also many driving offences are crimes of strict liability eg.
speeding, driving without insurance. The use of strict liability in criminal
law is controversial as it means a person may be liable where they are not at
fault or have taken all reasonable care to ensure compliance of the law (See
in particular Callow v Tillstone). However, the harshness of strict liability in
criminal law is generally tolerated as it brings practical benefits and is
often used to provide a greater level of protection to the public in areas
where it is perceived that there is a need to provide such protection.
As strict liability has the potential to create injustice and operate harshly
there is a general presumption that mens rea is required to impose criminal
liability:
It was thought that there existed a rule on age related offences, ie that strict
liability applied in relation to the age and that it was no defence if the person
held a reasonable belief that the person was over the specified age:
However, this was later held not to apply and if any such rule did exist, it did
not survive the decision in Sweet v Parsley in relation to true crimes. See:
Where the crime is one of social concern then the presumption of mens
rea may be rebutted. This is based on the assumption that strict liability
imposes higher standards of care and provides greater levels of protection to
the public. Examples of offences of social concern include driving offences
eg R v Williams [2011] 1 WLR 588 (case summary) and health and safety
regulations. See Alphacell v Woodward and Callow v Tillstone above.
However, a different approach was taken in the following case in which the
court was considering the same statute which applied in Cundy:
Strict liability raises standards where the health and safety of the public is at
stake and forces those in a position of responsibility to take extra
precautions.
For example:
Sale of unfit meat - Callow v Tillstone
Pollution - Alphacell v Woodward
Possession of firearms - R v Howells
Strict liability ensures more convictions are secured and does not allow
people to escape liability through a fabricated account of their state of mind.
Deterrence/raising standards
It is often argued that imposing strict liability will lead to people taking more
care and act as a deterrent to others.
Easier to Administer
The majority of strict liability offences are dealt with administratively often
through the post without the need for a court hearing. Other agencies of
enforcement may be involved such as the Health and Safety Executive and
Environmental Agencies. If mens rea was required to proved in every case
for such offences, the courts would be unable to cope with the workload.
Injustice
A person may be liable where they are not at fault and have exercised all
reasonable care. This offends the natural sense of justice as illustrated in the
following cases:
Callow v Tillstone - The butcher was liable despite doing everything possible
to have the meat checked out.
Also speeding, which is arguably a crime which is committed more than any
other, is one of strict liability. If strict liability was an effective deterrent then
we would have no speeding cars on the roads.
Stigma
Factual causation
Factual causation is established by applying the 'but for' test. This asks, 'but
for the actions of the defendant, would the result have occurred?' If yes, the
result would have occurred in any event, the defendant is not liable. If the
answer is no, the defendant is liable as it can be said that their action was a
factual cause of the result.
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Legal Causation
1. Legal causation requires that the harm must result from a culpable act:
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However, this does not apply where the offence is one of strict
liability:
R v Williams [2011] 1 WLR 588
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2. The defendant's action need not be the sole cause of the resulting harm,
but it must be more than minimal:
R v Benge (1865) 4 F. & F 504
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Where the act is of the victim, the chain of causation will not be broken
unless the victim's actions are disproportionate or unreasonable in the
circumstances:
R v Roberts [1971] EWCA Crim 4
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c) Medical intervention
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This rule applies irrespective of whether the defendant was aware of the
condition.
The thin skull rule also applies where the victim has refused medical
treatment which would have saved them:
Use of the word inflict has caused the courts considerable problems.
It was first interpreted as requiring proof of an assault or battery (R v
Clarence). In R v Wilson it was stated all that was required was the
direct application of force, however, in R vMartin the defendant was
liable where the force was indirectly applied. The current meaning was
established in R v Burstow as simply meaning cause.
ABH and GBH can have very different levels of severity of injury and
yet an offence of GBH under s.20 carries the same max penalty as an
offence of ABH under s.47. Yet for GBH the punishment jumps from 5
years to life for an offence under s.18 which could involve the same
injury as an offence under s.20.
Common assault
Common assault is a summary offence. Assault and battery have no
statutory definition. The definition and all elements of the offence
of assault are set out in case law. The punishment (maximum 6 months
imprisonment) is set out in statute under s.39 Criminal Justice Act 1988.
Definition of assault
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Apprehend
The victim need not be put in fear but must be aware that they are about to
be subjected to violence. If the victim does not anticipate unlawful personal
violence there is no assault:
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The actions of the defendant must cause the victim to apprehend immediate
unlawful personal violence. Originally it was thought that only conduct could
amount to an assault:
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In the following case the court went further and held that silence can
amount to an assault:
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Immediate
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Threats of future violence will not amount to an assault. Smith and Hogan's
Criminal Law (4th ed.), p.351 states, "There can be no assault if it is obvious
the complainant the defendant is unable to carry out his threat, as where D
shakes his fist at P who is safely locked inside his car." However, the courts
have adopted a more liberal approach to the requirement of immediacy:
Case
Unlawful
If the defendant has a lawful excuse to use force, the actions will not
amount to an assault. This includes:
Personal violence
The term personal violence can be misleading in that the victim need only
apprehend the level of force that amounts to a technical battery. Ie any
touching will suffice.
Battery
Battery is a summary offence. Assault and battery have no statutory
definition. The definition and all elements of the offence of battery are set
out in case law. The punishment (maximum 6 months imprisonment) is set
out in statute under s.39 Criminal Justice Act 1988.
Definition of battery
R v Ireland [1997] 3 WLR 534 Case summary
Lord Steyn defined battery as:
"unlawful application of force by the defendant upon the victim"
Application
Unlawful
Physical force
Application
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Unlawful
If the defendant has a lawful excuse to use force the actions will not amount
to a battery. This includes:
See also:
Donnelly v Jackman [1970] 1 All E.R. 987 Case summary
Physical force
Physical force is perhaps a misleading phrase in that it suggests a high level
of force however, any touching will suffice:
The offence of actual bodily harm is set out in S.47 Offences Against
the Person Act 1861. Which provides that it is an offence to commit an
assault occasioning actual bodily harm. Whilst the statute only refers to
assault, the offence may also be committed by a battery. In fact it is far
more common for offences under s.47 to be committed by battery rather
than by an assault. Actual bodily harm is a triable-either-way offence. The
maximum sentence for ABHis 5 years imprisonment.
Assault or battery
which causes
Assault or battery
To constitute an offence under s.47 all the elements of
an assault or battery must be present. However, some factors which may
make an assault or battery lawful can not be applied to make an offence
under s.47 lawful in particular:
Reasonable punishment of a child S.58 Children Act 2004
Consent
However, English law regarding lawful chastisement was held to be in breach of the European
Convention of Human Rights:
Lawful chastisement was abolished by s.58 of the Children Act 2004 and replaced
with reasonable punishment of a child. This can not be used as a defence in relation
to ABH, GBH or wounding but may be allowed in assault and battery only.
Lynsky J:
"Actual bodily harm includes any hurt or injury calculated to interfere with the health
or comfort of the victim"
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LJ Hobhouse:
"The word "actual" indicates that the injury (although there is no need for it to be
permanent) should not be so trivial as to be wholly insignificant."
Bodily harm
Bodily harm can include psychiatric injury see:
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The mens rea of ABH is intention or reckless (subjective) as to the assault or battery.
There is no requirement that the defendant intended or was reckless as to the injury
inflicted:
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The offences of wounding and GBH are found under two separate sections of
the Offences Against the Person Act 1861. GBH meaning grievous bodily harm. A
conviction ofwounding or GBH under S. 20 represents the lesser offence which
carries a maximum penalty of 5 years imprisonment. Wounding and GBH under
S.18 is a more serious offence and carries a maximum sentence of 25 years. There are
common elements of the two offences. The main difference between the offences
under s.18 and s.20 relate to the mens rea. Also the offence under s.20 is triable-eitherway, whereas the offence of grievous bodily harm under s.18 is indictable.
Unlawfully
Wound
or inflict GBH
on another person
Unlawfully
Some wounding or GBH may be classed as lawful. This covers those who are acting
in self defence or prevention of crime and in limited circumstances where the victim
has consented eg surgical interference and where the injury results from properly
conducted games and sports. For more detailed review of the circumstances in which
consent may operate see the lecture outline on consent. Lawful chastisement R v
Hopley (1860) 2 F&F 202 (Case summary) or reasonable punishment of a child is not
available to the offences of wounding or GBH (S.58 Children Act 2004).
Wound
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If the victim is particularly vulnerable, the jury is entitled to take this into account
when assessing if the injury is really serious:
Inflict
The use of the word inflict in s.20 has given rise to some difficulty. It has been held to
include indirect application of force:
Originally the courts interpreted inflict to mean that there must be proof of an assault
or battery:
More recently inflict was interpreted to mean the direct or indirect application of
force:
In the context of psychiatric injury, the word inflict simply means cause. There is no
requirement of assault or battery or direct or indirect application of force:
R v Burstow [1997] 3 WLR 534 Case summary
Subjective recklessness applies (the defendant must foresee the risk of causing some
harm):
R v Parmenter [1991] 94 Cr App R 193 Case summary
S.18 provides:
"Whosoever shall unlawfully and maliciously by any means whatsoever wound or cause any
grievous bodily harm to any person, with intent, to do some grievous bodily harm to any person,
or with intent to resist or prevent the lawful apprehension or detainer of any person, shall be
guilty of felony."
Unlawfully
on any person
Since the decision in Burstow there is little difference between in the actus reus under
s.20 and s.18. The one difference is that the offence under s.20 must be committed on
another person whereas s.18 can be committed on any person and thus would cover
those who intentionally wound or inflict GBH on themselves.
Mens rea
The mens rea under s.18 requires either:
Unlawful killing
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Human being
The second element of the actus reus of murder requires the victim
A foetus becomes a human being when it has been fully expelled from
it mother and has an independent existence.
The third aspect of the actus reus of murder excludes the killing of
alien enemies in the time of war.
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The mens rea of murder covers not only direct intent, but
also extends to oblique intent where the current test
established in R v Woollin (case summary)applies. See further
the lecture on intention.
Constructive manslaughter
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"the unlawful act must be such as all sober and reasonable people
would inevitably recognise must subject the other person to, at least,
the risk of some harm resulting therefrom, albeit not serious harm."
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His conviction was upheld on the grounds that he had assisted the
unlawful act of the deceased in self-injecting.
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However, this was also unsuccessful. The court held, following the case
of R v Rodgers, that the unlawful act was his assisting in the
administration of the drug and thus amounted to an offence under
s.23.
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Consequently it need only be established that the defendant had the mens rea of the unlawful
act committed. There is no requirement that the of mens rea in relation to the ensuing death.
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However, the House of Lords in Adomako held that the law as stated
in R v Seymour [1983] 2 A.C. 493 should no longer apply since the
underlying statutory provisions on which it rested have now been
repealed by the Road Traffic Act 1991.
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2.
3.
4.
The defendant's conduct was so bad in all the circumstances as to amount in the jury's opinion
to a crime.
This was affirmed in the following case where it was ruled that the
CPS were wrong to base a decision not to prosecute on the lack of
subjective recklessness of the employer:
R v DPP ex parte Jones [2000] IRLR 373
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Lord Mackay, in R v Adomako, made it clear that civil law concepts of duty of
care should apply in deciding the criminal liability of a person for gross
negligence manslaughter. This has proved problematic outside the realm of
medical negligence and driving cases. In particular, the question of whether
a drug dealer owes a duty of care to one whom he has supplied seems to be
illogical although the courts have not ruled out the possibility:
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A woman who supplied drugs to her sister was held to owe a duty of care to
summon help for her when she displayed symptoms of an overdose. The
duty arose not from her familial relationship, nor from her acceptance of
duty but through her supplying the drugs and thus creating a dangerous
situation:
In addition it has been held that the defence of ex turpi causa, which
operates in civil law to negate a duty of care where the victim is acting is
acting in the course of a joint criminal enterprise when injury is inflicted, has
no application in criminal law:
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The problem relating to the circularity of the test for gross negligence
manslaughter remained ie the jury were to find the defendant liable of a
crime if they thought his actions amounted to a crime. This was challenged
as being in breach of Art 6 & 7 of the European Convention of Human Rights.
However, the Court of Appeal held that the test was sufficiently certain to
comply with Convention rights:
b)
c)
Exercise selfcontrol
Prior to the Coroners and Justice Act 2009, the Homicide Act 1957
referred to abnormality of the mind. The change of wording in this
respect was simply to clarify the law and is not expected to make
any changes to the applicability of the defence. Thus the case law
under the Homicide Act is still helpful in determining what may
count as an abnormality of the mental functioning. The question of
whether the defendant is suffering from an abnormality of
the mental functioning is for the jury to decide after hearing medical
evidence. The jury are not bound to follow medical opinion it is
ultimately their decision as to whether the defence should succeed.
A notorious example of the jury ignoring medical
opinion was present in the trial of Peter Sutcliffe (the
Yorkshire ripper) where the medical opinion was unanimous that the
defendant was a paranoid schizophrenic, yet the jury refused to
allow him the defence. Abnormality of the mental functioning is
assessed by reference to what a reasonable man would regard as
abnormal. It has a wide meaning and encompasses the inability to
exercise will power and control.
R v Byrne (1960) 2 Q.B. 396
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The defendant must show that the abnormality of the mind must
have substantially impaired his mental ability to either:
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Taylor CJ stated:
"Ordinarily, of course, any available defences should be advanced at trial.
Accordingly, if medical evidence is available to support a plea of diminished
In deciding whether to admit fresh evidence the court must have regard to
S. 23 of the Criminal Appeal 1968 which provides:
"(1) For purposes of this Part of this Act the Court of Appeal may, if they think it necessary
or expedient in the interests of justice -(c) receive any evidence which was not adduced in the proceedings from which the appeal
lies.
(2) The Court of Appeal shall, in considering whether to receive any evidence, have regard
in particular to -(a) whether the evidence appears to the Court to be capable of belief;
(b) whether it appears to the Court that the evidence may afford any ground for allowing
the appeal;
(c) whether the evidence would have been admissible in the proceedings from which the
appeal lies on an issue which is the subject of the appeal; and
(d) whether there is a reasonable explanation for the failure to adduce the evidence in those
proceedings."
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The courts are more willing to admit fresh evidence relating to diminished
responsibility where there have been advances in medical opinion since the
time of trial:
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S.54(1) A
person who kills or was party to a killing may be convicted of
manslaughter rather than murder where there exists:
(c) a person of D's sex and age, with a normal degree of tolerance
and self-restraint and in the circumstances of D, might have reacted
in the same or in a similar way to D.
Burden of proof
S.54 (5) - if sufficient evidence is adduced, the jury must assume
that the defence is satisfied unless the prosecution proves beyond
reasonable doubt that it is not.
1. Loss of self-control
2. Qualifying trigger
Under the old law of provocation virtually any act was capable of
being used as evidence of provocation. This was considered
problematic in that it was too wide. The provocative action did not
have to be deliberate or aimed at the victim: R v Davies [1975] 1
QB 691 Case summary . Even a baby crying was accepted as a
provocative act (R v Doughty (1986) 83 Cr App R 319 Case summary).
The introduction of qualifying triggers have narrowed the ambit of
the new defence quite dramatically.
S.55 (3) Where D's loss of self-control was attributable to D's fear
of serious violencefrom V against D or another identified person.
or
S.55 (4) Where D's loss of self-control was attributable to a thing
or things done or said(or both) which
(a) constituted circumstances of an extremely grave
character, and
(b) caused D to have a justifiable sense of being seriously
wronged.
Sexual infidelity
The limitation based on sexual infidelity represents a major change
from the defence of provocation which was largely seen as an
excuse for crimes of passion. This change is based on the view that
in a civilised society there can be no excuse for killing due to
infidelity. Whilst this sentiment is commendable its inclusion has
received widespread criticism as to its workability in practice. This
provision has already been subject to interpretation by the Court of
Appeal:
R v Clinton [2012] EWCA Crim 2 Case summary
Incitement
The limitation based on incitement represents a move away from the law of
provocation where selfinduced provocation could be relied upon:
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Positive
Genuine
Positive
Consent is positive, it is not a matter of the victim not objecting or
saying no. Consent differs from submission:
R v Olugboja [1982] QB 320
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2.
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Defence of Duress
There exist two defences of duress: duress by
threats and duress of circumstances.Duress of
circumstances is the most recent development and
is closely linked to duress by threats and
the defence of necessity. Duress by threat and
duress of circumstances are largely governed by
the same criteria thus many of the cases are
authority for either type of duress. Where the
defence of duress is successfully pleaded it
absolves the defendant of all criminal liability. The
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Passengers in a car:
R v Conway [1989] QB 290
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was
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allowed
for
an
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Duress of circumstances
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Defence of Mistake
Where the defendant acts under a mistaken belief of the
circumstances they may be afforded the defence of
mistake. Where a defendant acts under such a mistake, the
mistake prevents them forming the mens rea of the crime and
thus mistake is not really a defence as such, but relates to the
absence of the elements of establishing liability. The defence of
mistake was first recognised in R v Tolson (1889) 23 QBD 168 but
has developed since then. Often the defence of mistake is
complicated by being combined with other defences such as
intoxication or self-defence (or both).
Initially a defence would be allowed if the mistake was both honest
and reasonably held:
R v Tolson (1889) 23 QBD 168 Case summary
A mistake as to law will not generally suffice, for the defence of
mistake, since ignorance of the law is no excuse (Ignorantia juris
non excusat)
R v Lee [2000] EWCA Crim 53
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