To Talk of Actus Reus as Guilty Conduct Is to Misunderstand English Criminal Law - Coursework Example

Criminal Law Question: "To talk of actus reus as guilty conduct is to misunderstand English Criminal Law". Discuss In order to understand the role of‘actus reus’ in English Criminal Law we should primarily refer to all aspects of the above term as they have been developed by theorists but also – mainly – by the judges in relevant conflicts. At a first level it could be noticed that ‘actus reus’ has been introduced in English law in order to describe specific terms under which a person should be considered as guilty of an action that is punished by particular provisions of English Criminal Law. The explanation of the content of the above term is of significant importance mostly because it can lead to specific judicial views that are crucial for the development of a court’s final decision. It should also be noticed that ‘actus reus’ is often confused with ‘mens rea’. Both the above terms are used in order to define the existence of liability in crimes; the relationship of these terms will be also analyzed below trying to identify the particular importance of the former – actus reus – when having to identify the subject of responsibility in a particular crime. The term ‘actus reus’ can be interpreted as ‘the ‘guilty act’, that is the act which, in combination with a certain mental state, such as intent or recklessness, constitutes a crime’ (Nolo legal database, 2008, online article). The specific term can be related with different aspects in accordance with the type of crime involved. In R v G [2006] EWCA Crim 821 the court referring to the section 5 of the Sexual Offences Act 2003 stated that ‘the actus reus of section 5 is vaginal, anal or oral sexual intercourse with a victim under 13, whether the victim consents or not; under normal principles the prosecution would also have to prove the appropriate mens rea’ (par. 16). The content of the specific term can be identified only through its practical involvement in the identification of responsibility in the various criminal offences. In practice, the court has held that ‘‘actus reus’ and mens rea are misleading terms… actus reus to mean such conduct as constitutes a crime if the mental element involved in the definition of the crime is also present (or, more shortly, conduct prohibited by law); and mens rea to mean such mental element, over and above volition, as is involved in the definition of the crime’ (Director Of Public Prosecutions For Northern Ireland v Lynch [1975] UKHL 5, page 18, also R v K [2001] UKHL 41, [2001] 3 WLR 471 (HL)). From another point of view, it is noticed by the court that ‘the actus reus generally consists of an act and some consequence. The consequence may be very closely connected with the act or more remotely connected with it: but with a crime of basic intent the mens rea does not extend beyond the act and its consequence however remote as defined in the actus reus’ (DPP v Majewski [1976] UKHL 2 (13 April 1976), page 5). The examination of the meaning and the role of actus reus in criminal law can be effective only if followed by the identification of the role of mens rea in the relevant procedure – examination of the facts related with a criminal offence and identification of the role and the responsibility of the persons involved. In the literature, the value of the above distinction – actus reus and mens rea – has been doubted. More specifically, it is supported that this distinction ‘rather than being useful to criminal law theory, it is harmful because it creates ambiguity in discourse and hides important doctrinal differences of which criminal law should take account’ (Robinson, 1993, 187, see also Caesius, 1999). The judicial view on the specific issue can be differentiated under specific terms and conditions as explained throughout this paper. In any case, the facts related with a particular offence need to meet specific criteria in order to be characterized as constituting the ‘actus reus’ regarding the specific crime. Actus reus is part of a series of criteria established by the law in order to decide on the existence of a person’s responsibility for a particular criminal offence. In accordance with Simons (2002, 1) ‘the conventional mental state or culpability categories recognized in the criminal law are purpose, knowledge, recklessness, and negligence; connection problems arise to a surprising extent with the conventional mental states of purpose, knowledge, and recklessness, as well’. The type of the criminal offence is a decisive criterion in order to decide on the existence of ‘actus reus’ in a specific case; the court has to examine the existence of specific events (differentiated in their importance in accordance with the criminal offence involved) in order to decide on the existence of ‘actus reus’ in a particular case. Referring to the criminal offences in the workplace the court held that ‘the conduct constituting the actus reus must also have a causal relationship to the conduct of the employee which constituted the employees breach of the Regulations; where the employer is charged with having caused the employees breach, the need for the prosecutor to prove such a causal relationship is obvious’ (Vehicle Inspectorate v. Nuttall [1999] UKHL 14; [1999], page 11). In other words, the court has to identify the potential existence of actus reus in a specific case only if focusing on the examination of the facts that can be regarded as part of the ‘actus reus’ in the above case. The precise relationship of these facts with the case should be proved and justified through the relevant hearing of the case by the court. In general, ‘actus reus’ refers to the criteria that need to be met in order for a specific crime to exist. The court examines in each case the existence of ‘actus reus’ through the identification of all the facts related with a specific crime; if facts that are considered to be the ‘actus reus’ of a particular crime are identified by the court, then the liability of the persons involved in a criminal action has to be evaluated – usually through the existence of the ‘mens rea’. In practice, the principles of common law have to be carefully examined in each case in order to identify the potential existence of a person’s liability for a specific crime. The identification of all the above criteria and their evaluation using the principles of common law belongs to the exclusive power of the judge who can use existing legislation and litigation in order to formulate his assumption. In Steen v HM Attorney-General & Anor [2001] EWCA Civ 403 the court held that ‘the contempt alleged by the Respondent is not contempt under the Contempt of Court Act 1981, but contempt at common law; as such, it is subject to common law principles that govern the commission of a criminal offence; both the actus reus and the mens rea must be demonstrated if the offence is to be made out’ (par. 20, see also Kennedy v R. [2005] EWCA Crim 685 (17 March 2005)). In the above case, the identification of the existence of contempt must be based on the principles of common law and the facts that are found to be related with the particular crime. When the existence of ‘actus reus’ is doubted, then the facts related with a specific case need to be re-evaluated trying to identify any potential element that could be considered as part of the ‘actus reus’ regarding a particular crime. The use of the above ‘condition of law’ in order to decide on the responsibility of a person regarding a particular crime is extensive. In other words, ‘actus reus’ is not exclusively related with specific crimes but it can be used in order to evaluate the role of a person in a variety of criminal offences. In this context, it is noticed by the court that ‘in recent years, and subsequently to Stephens History of the Criminal Law of England the defence of duress has been judicially admitted in relation to a variety of crimes: inter alia, treason, receiving, stealing, malicious damage, arson, perjury; in all of these crimes there would have to be proved, in addition to an actus reus, an element of intention’ (Director Of Public Prosecutions For Northern Ireland v Lynch [1975] UKHL 5, page 11). Actus reus does not constitute by itself part of the criminal offence; it is rather an indication that the person involved had knowledge of the criminal aspects of the act attempted by him/ her; however in order for actus reus to be used as the basis for the characterization of an act as a criminal offence, other criteria should be also met. When these criteria are combined with actus reus, then the person involved in a specific criminal offence should be considered as having the intention to commit the particular crime. The explanation of ‘actus reus’ in modern English criminal law could be based on the role of ‘actus reus’ in identifying the responsibility of a person/ persons regarding a particular criminal offence; the relationship between the action of the supposed offender/s and the specific crime needs to be proved by the court in order for a person to be punished by the law for a specific criminal offence. In this context, it is supported in the literature that ‘the basic structure of the criminal offense is comprised of the dyadic relationship between the offender and the victim; actus reus elements appear to be after-the- fact intervention for the assessment of damages of injuries and the mens rea elements are also imputed after the fact to the offender in order to punish his indeterministic evil intent’ (Shoham et al., 1970, 219). In other words, actus reus cannot be used alone when having to identify the existence of responsibility of a person for a particular criminal offence; mens rea should also exist in relation with the acts of the specific person in order to be regarded as the offender in the above criminal offence. In practice, the identification of the existence of actus reus and mens rea can be proved to be a challenging task. In fact, when this issue is examined by the court, a contradicted assumption may be developed – regarding the existence or not of actus reus and mens rea. Towards this direction, it is supported by the court that ‘it is difficult in some cases to distinguish precisely between the ‘actus reus’ and the mens rea; the actus reus can include a mental element; in Smith & Hogan, Criminal Law, 9th ed., p. 28 Professor Sir John Smith states: "It is not always possible to separate actus reus from mens rea; sometimes a word which describes the actus reus, or part of it, implies a mental element"’ (Antoine, R v. [2000] UKHL 20; [2000] 2 All ER 208 (30th March, 2000), page 15). Even if the role of these two terms may cause confusion when having to evaluate the existence or not of a person’s responsibility regarding a particular criminal offence both these terms are considered to be particularly valuable for the identification of responsibility in a variety of criminal offences – as already described above. Regarding this issue it is noticed by the court that ‘both terms have, however, justified themselves by their usefulness’ (observations of Lord Simon in DPP for Northern Ireland v. Lynch [1975] AC 653, 690, in Grant, R v [2001] EWCA Crim 2644 (22nd November, 2001), par. 17). It should be noticed that the existence of actus reus in each specific criminal offence can be based on different criteria – as already noticed above. For this reason, the court needs to examine carefully the facts related with a particular case and make sure that these facts could justify – as defined by the relevant principles of common law – the existence of actus reus in the particular case. It is possible when trying to identify the actus reus in a specific case to come to the conclusion that the examination of additional material is required in order to decide on the existence of actus reus in a person’s acts in relation with a specific criminal offence. The specific issue has been extensively highlighted by the court which supported that ‘whereas the actus reus of the principal offender is doing the very act which causes the death, that of a secondary party is the act of participation in the joint venture/common purpose and, under s.4A(2), that is the matter upon which the jury must concentrate in order to determine whether or not the secondary party is to be regarded as having done the act of murder alleged against him’ (Martin, R. v [2003] EWCA Crim 357 (20 February 2003), par. 46). In the above case, the existence of two offenders regarding a specific crime leads to the assumption that no precise evaluation of the actus reus in their actions can be resulted unless all aspects of the role of these persons in the above crime are carefully examined. References Caesius, A. (1999) The statute of the International Criminal Court: some preliminary reflections. European Journal of International Law, 10(1): 144-171 Nolo legal database (2008) Actus reus, online available at http://www.nolo.com/resource.cfm/catID/D067F3DC-202E-4EF7-AAEEEFB60061533D/310/266/ Robinson, P. (1993) Should the Criminal Law Abandon the Actus Reus-Mens Rea Distinction. Criminal Law: Action, value and structure, p.187-211 Shoham, S., Guttman, L., Rahav, G. (1970) A Two-Dimensional Space for Classifying Legal Offenses. Journal of Research in Crime and Delinquency, 7(2): 219-235 Simons, K. (2002) DOES PUNISHMENT FOR "CULPABLE INDIFFERENCE" SIMPLY PUNISH FOR "BAD CHARACTER"?: EXAMINING THE REQUISITE CONNECTION BETWEEN MENS REA AND ACTUS REUS. The Boston University School of Law, working paper no 02-11, pg. 1-61 Cases R v K [2001] UKHL 41, [2001] 3 WLR 471 (HL). R v G [2006] EWCA Crim 821 (CA). Steen v HM Attorney-General & Anor [2001] EWCA Civ 403 (23 March 2001) Director Of Public Prosecutions For Northern Ireland v Lynch [1975] UKHL 5 (12 March 1975) DPP v Majewski [1976] UKHL 2 (13 April 1976) Vehicle Inspectorate v. Nuttall [1999] UKHL 14; [1999] 3 All ER 833; [1999] 1 WLR 629 (18th March, 1999) DPP v Majewski [1976] UKHL 2 (13 April 1976) Clinton, R v. [2001] NICA 21 (25 April 2001) Gilmour, R v. [2000] NICA 10 (05 June 2000) Antoine, R v. [2000] UKHL 20; [2000] 2 All ER 208 (30th March, 2000) R. v Miller [1982] UKHL 6 (17 March 1982) Grant, R v [2001] EWCA Crim 2644 (22nd November, 2001) Martin, R. v [2003] EWCA Crim 357 (20 February 2003) Kennedy v R. [2005] EWCA Crim 685 (17 March 2005) Read More