DISCUSS EXHAUSTIVELY WHY ESTABLISHING THE MEN REA AND ACTUS REUS IS OF CRITICAL IMPORTANCE IN ANY CRIMINAL PROCEEDINGS

KENYA INSTITUTE OF STUDIES IN CRIMINAL JUSTICE

COURSE: DIPLOMA IN INTELLIGENCE MANAGEMENT

MODULE: CRIMINAL LAW

MODULE CODE: GCL 101

QUESTION: DISCUSS EXHAUSTIVELY WHY ESTABLISHING THE MEN’S REA AND ACTUS REUS IS OF CRITICAL IMPORTANCE IN ANY CRIMINAL PROCEEDINGS (40 MARKS)

STUDENT: DAVID MBUGUA KIHIU

SUPERVISOR: ROBERT ONYINGE

SUBMISSION DATE: 20TH DECEMBER 2014

Table of Contents

TOC o “1-3” h z u HYPERLINK l “_Toc408324556” Introduction PAGEREF _Toc408324556 h 2

HYPERLINK l “_Toc408324557” Men’s Rea PAGEREF _Toc408324557 h 4

HYPERLINK l “_Toc408324558” Need to Establish Men’s Rea In Order to Secure a Conviction PAGEREF _Toc408324558 h 4

HYPERLINK l “_Toc408324559” Intention PAGEREF _Toc408324559 h 4

HYPERLINK l “_Toc408324560” Intention Based On Foresight of Consequences PAGEREF _Toc408324560 h 5

HYPERLINK l “_Toc408324561” Recklessness PAGEREF _Toc408324561 h 5

HYPERLINK l “_Toc408324562” Negligence PAGEREF _Toc408324562 h 6

HYPERLINK l “_Toc408324563” Assessment of Culpability PAGEREF _Toc408324563 h 7

HYPERLINK l “_Toc408324564” Actus Reus: Omission & Causation PAGEREF _Toc408324564 h 8

HYPERLINK l “_Toc408324565” Actus Reus PAGEREF _Toc408324565 h 8

HYPERLINK l “_Toc408324566” Omissions In Crimes PAGEREF _Toc408324566 h 9

HYPERLINK l “_Toc408324567” Causation in Crimes PAGEREF _Toc408324567 h 12

HYPERLINK l “_Toc408324568” Causation and Negligence PAGEREF _Toc408324568 h 14

HYPERLINK l “_Toc408324569” Minimal Causation PAGEREF _Toc408324569 h 14

HYPERLINK l “_Toc408324570” Conclusion PAGEREF _Toc408324570 h 16

HYPERLINK l “_Toc408324571” References PAGEREF _Toc408324571 h 18

Introduction

The concept of Men’s Rea started its development in the 1600s in England when judges started to say that an act alone could not create criminality unless it was adjunct with a guilty state of mind. The degree for a particular common law crime varied for Men’s Rea. Murder required a malicious state of mind, whereas larceny required a felonious state of mind. The general basis for imposing liability in criminal law is that the defendant must be proved to have committed a guilty act whilst having had a guilty state of mind. The physical elements are collectively called the actus reus and the accompanied mental state is called the Men’s rea. Mens Rea translates as “guilty mind”, but it is better to think of it as the mental element of the crime, the state of mind that is prohibited in the definition of the offence, expressly or impliedly. The burden of proving Mens Rea is on the prosecution. The study of Mens Rea is the study of what needs to be proved to convict the defendant. There are different types of Mens Rea, that we can divide in two categories: those assessed subjectively (assessed by the fact-finder according to what D was thinking at the time of the actus reus), which are intention, recklessness, wilful and awareness; those assessed objectively (the fact-finder also considers what a reasonable person would have thought, and even though D did not think this way, the mens rea can still be satisfied) which are recklessness (from 1981 to 2003 only), negligence, including gross negligence, and dishonesty (although the test for dishonesty has a subjective element, it is a subjective assessment of an objective test).

Men’s ReaMen’s Rea is described as “A guilty mind; a guilty or wrongful purpose; a criminal intent; Guilty knowledge and willfulness”. In criminal law it is the basic principle that a crime consists of a mental element and a physical element. A person’s awareness of the fact that his or her conduct is criminal is the mental element, and actus reus’ (the act itself) is the physical element.

Men’s Rea is generally used along with the words general intent, however this creates confusion since general intent is used to describe criminal liability when a defendant does not intend to bring about a particular result. On the other hand, specific intent describes a particular state of mind beyond what is generally required.

Need to Establish Men’s Rea In Order to Secure a ConvictionTo secure a conviction, the prosecution side must prove that the defendant committed the crime while in a certain state of mind. The definition is specified of every crime before a person can be convicted as a pre-requisite for Men’s Rea. There are three states of mind which constitute the necessary Men’s Rea for a criminal offence. These are intention, recklessness and negligence and are described below.

IntentionDirect intent is the normal situation where the consequences of a person’s actions are desired. Oblique intent comes in the situation where the defendant as virtually certain knows the consequence, although it is not desired for its own sake, and the defendant goes ahead with his actions anyway.

Intention Based On Foresight of ConsequencesThe law states that foresight of consequences can only be evidence of intention if the accused knew that those consequences would definitely happen. Therefore just a possibility of a particular occurrence is not sufficient. To clarify the jury’s comprehension, Section 8 of the Criminal Justice Act 1967 deals with how intention or foresight must be proved, provides: “A court or jury in determining whether a person has committed an offence, (a) shall not be bound in law to infer that he intended or foresaw a result of his actions by reason only of its being a natural and probable consequence of those actions; but (b) shall decide whether he did intend or foresee that result by reference to all the evidence drawing such inferences from the evidence as appear proper in the circumstances.

Consequently, where foresight needs to be established a person is not to be taken as intending the natural and probable consequences of his act simply because they were natural and probable, although a jury may infer that from looking at all the evidence. The test is therefore subjective and a jury is to decide what the defendant’s intention was from considering all the evidence.”

RecklessnessRecklessness is taking an unjustified risk. In most cases, there is clear subjective evidence that the accused predicted but did not desire the particular outcome. When the accused committed the act, the risk of causing the given loss or damage was taken. There is always some degree of intention included with recklessness.

For example, in the United States, the law says – Clause 18(c) of the DCCB proposes a ‘subjectivist’ formulation for the concept of recklessness: a person acts- (c) ‘recklessly’ with respect to – (i) a circumstance when he is aware of a risk that it exists or will exist; (ii) a result when he is aware of a risk that it will occur; and it is, in the circumstances known to him, unreasonable to take the risk”

NegligenceNegligence means falling below the standard of the ordinary reasonable person. This test is objective and is based on the hypothetical person involving the defendant either doing something the reasonable person would not do, or not doing something which the reasonable person would do. It does not matter whether the defendant was unaware that something dangerous might happen, if the “reasonable person” would have realized the risk, and taken steps to avoid it.The law says – The leading statement to describe ‘criminal negligence’ at common law for the purposes of establishing a test for manslaughter in English law, may be found in the statement by Lord Hewart CJ in the case of R v Bateman (1925) 28 Cox’s Crim Cas 33: “In explaining to juries the test which they should apply to determine whether the negligence, in the particular case, amounted or did not amount to a crime, judges have used many epithets, such as ‘culpable’, ‘criminal’, ‘gross’, ‘wicked’, ‘clear’, ‘complete’.

But, whatever epithet be used and whether an epithet be used or not, in order to establish criminal liability the facts must be such that, in the opinion of the jury, the negligence of the accused went beyond a mere matter of compensation between subjects and showed such disregard for the life and safety of others as to amount to a crime against the State and conduct deserving punishment.

Assessment of Culpability

From the discussion above it can be fairly seen that objectivity is required in most cases due to the confusing nature of the cases. The cases amid Commonwealth Nations are judged through any of the three tests discussed below. Subjective Test: The court must be reasonably satisfied that the accused essentially had the requisite mental element present in his or her mind at the relevant time (Purposely and Recklessly). Objective Test: The requisite Men’s Rea element is charged to the accused on the basis that the reasonable person would have had the mental element in the same situation (Negligence) .Hybrid Test: This test is both subjective and objective. In most situations it is difficult to base the judgment on the subjectivity of the case since the proof provided is not enough. Therefore decisions based on objectivity are also taken. The court has almost no obscurity in ascertaining Men’s Rea if there is actual evidence, for example, the accused admitting the crime. The subjective test would be thus satisfied. However, most of the accused make no such admissions.

Therefore some degree of objectivity is borne to reach a decision. People of ordinary intelligence are usually aware of their physical surroundings and of the ordinary laws of cause and effect. Thus, when a person plans what is to be done and what is not to be, the person would understand the range of likely outcomes from the person’s behavior. If clear subjective evidence is if the accused did not foresee like any reasonable person would have, the hybrid test may find criminal negligence.

When reaching a decision, the jury must have a high certainty before giving the convicting decision. If the jury is not certain, the defense justifies infancy or a lack of mental capacity using various statutes defining mental illness as an excuse for the defendant’s actions. If the accused did not have sufficient comprehension of the nature and quality of the actions, the requisite Men’s Rea is lacking no matter what degree of probability might otherwise have been present.

Here a higher degree of objectivity must be used for the common law to form the basis of potential liability and the reasonable person must be given the same intellectual and physical qualities as the accused, and the objective test undertaken should answer whether an accused with these specific attributes would have had the requisite foresight and desire. There objectivities are important in decision-making and in cases where the defense can serve benefits as explained above; even more objectivity must be used to reach to a justifiable answer.

Actus Reus: Omission & CausationIt is the fundamental duty of the prosecution to prove both of these elements of the offence to the satisfaction of the judge or jury beyond reasonable doubt. In the absence of such proof, the defendant will be acquitted.

Actus ReusAn actus reus consists of more than just an act. It also consists of whatever circumstances and consequences are recognised for liability for the offence in question – in other words all the elements of an offence other than the mental element. The term actus reus has been given a much wider meaning by Brown (2012) in his criminal law. He says : When he use the technical tern actus reus we include all the external circumstances and consequences specified in the rule of law as constituting the forbidden situation.

Reus must be taken as indicating the situation specified in the actus reus as on that, given any necessary mental element, is forbidden by law. In other words, acus reus means the whole definition of the crime with the exception of the mental element – and it even includes a mental element in so far as that is contained in the definition of an act. Actus reus includes negative as well as positive elements. For example, as stared earlier, the actus reus of murder is the causing of death of a person. It also includes circumstances, such as the person whose death has been caused was not as a consequence of a sentence or death given to him or that the death was caused within the territorial jurisdiction of the state.

Omissions In Crimes

Omissions are controversial for two main reasons; first, whether and to what extent it is justifiable omissions rather than acts; and secondly, whether liability for omissions rather than act requirement in criminal law. Pursuing the second point here, much has been made above of the importance of requiring proof that the defendant voluntarily did something to produce prohibited conduct or consequence. In so far as this can be termed an ‘act requirement’, are omissions a true exception to it? If they are, is this another argument against criminalizing them? One much-discussed preliminary question is the distinction between acts and omissions.

Sometimes it is argued that certain verbs imply action and therefore exclude liability for omissions, and that the criminal law should respect. The distinctions flowing from this. English courts have often used this linguistic or interpretive approach. It has led to a variety of decisions in different statutes, without much discussion of the general principles underlying omissions liability. The law commissions considerably draft criminal code may be said to signal the continuation of this approach, by redefining the homicide offences in terms of ‘causing death’ rather than ‘killing’, and refining the damage offences in terms of ‘causing damage’, rather than ‘damaging’, so as ‘to leave fully open to courts the possibility of so constructing the relevant (statutory) provisions as to impose liability for omissions’.

The draft cod would therefore remove any linguistic awkwardness in saying, for example, that a parent killed a child by failing to feed it; but it does so in this specific instance, and without proclaiming a general principle, that the act requirement may be fulfilled by an omission of a duty can be established. Attachment to the vagaries of the language is no proper basis for delineating the boundaries of criminal liability. In some situations the courts, following the linguistic approach, have nevertheless found themselves able to impose omissions liability. In Speck (1977)3 the defendant was charged with committing an act of gross indecency with or towards a child. The evidence was that an 8 yr old girl placed her hand on his trousers over his penis.

He allowed that hand to remain there for some minutes, causing him to have an erection. The court of appeal held that the defendants’ failure to remove the hand amounted to an invitation to the child with the act, or it created a duty in an adult to put an end to the innocent touching of this kind, with omissions liability for not fulfilling the duty. The analysis is similar to that in miller (1983) where D fell asleep whilst smoking, woke up to find the mattress shouldering, but simply left the room and went to sleep elsewhere. He was convicted of causing criminal damage by fire, on the basis that a person who initiates a sequence of events innocently and then fails to do anything to stop the sequence should be regarded as having caused the whole sequence. On this view the conduct constitutes a single, continuing act; Miller caused the damage because he took no steps to extinguish the fire he had innocently started. It must be doubted whether these efforts to find an act, which then coincides in point of time with defendants knowledge and intentions, are convincing.

Surely the courts are imposing liability for an omission on these cases, by recognizing that a duty arises. Speck is a little different from miller since the original act of the speck was of the girl, and the duty must therefore amount the recognition of an obligation on an adult to put an end to the indecent yet innocent touching by a child. As far as these decisions appear to extend the statutory wording, are they objectionable on grounds of retroactivity and lack of fair warning, or defensible as applications of existing common law doctrine to new situations?

In other situations it seems possible to offer plausible reasons for regarding the same event as either an act or an omission, and in some cases the courts have sought to exploit this ambiguity when dealing with problematic medical issues. Yet it is one thing to say that a healthcare professional who decides not to replace an empty bag for a drip-feed has made an omission, whereas switching a ventilator off is an act; is another thing to maintain that the act-omission distinction should be crucial to any determination of the criminal liability in the two situations.

In Airedale NHS trust v bland (1993)the house of lords held that it would be lawful for a doctor to withdraw treatment from a patient in a persistent vegetative state, even though death would inevitable be hastened by that conduct. The house held that the withdrawal of treatment would constitute an omission, and thus regarded the duties of the doctor as the central issue. The decision was that a doctor has no duty to continue life supplying treatment when it is no longer in the best interest of the patient, having regard to responsible medical opinion. However the court of appeal declined to adopt this subterfuge in Re A(conjoined twins: Surgical separation), holding that the surgical separation of the twins would undoubtedly be an act, and subsequently deciding that carrying out an operation which would result in the death of one twin in order to save the life of the other could be justified on the grounds of necessity. This demonstration of the fragility of the act-omission distinction of the vagaries the English language indicates that it may be simplistic to oppose omissions liability in the principle.

There are some clear cases of omission in which it is desirable to have criminal liability, such as the parent who neglects to feed her or his child or neglects to protect it from abuse. Omissions can be involuntary or not, in the same way as acts; and provided, that the harm resulted because D failed to intervene, it can be argued that omissions are also causes. Omissions liability is therefore to satisfy the principles that no one should be held liable for bodily movements that he or she did not or could not direct. It may also satisfy the principle that no person should be held liable for the conduct or consequences that he or she did not cause.

But one point of the act requirement is to exclude liability for mere thoughts that do not result in some bodily movement, and omissions fall foul to that. They do so for a good reason that certain positive duties to act are so important that they can rightly be made the subject of criminal liability. Of course, such a duty should also be defined with sufficient certainty and made known to those affected by it. So long as these formal requirements are fulfilled, there can be no fairness objection to holding a person liable, if he or she is capable of taking some steps to carry out the duty.

Causation in CrimesAn event is very often the result of a number of factors. A factor is said to have caused a particular event if, without that factor, the event would not have happened. Thus, a man is said to have caused the actus reus of a crime, if, that actus would not have occurred without his participation in what was done. Some casual relationships has to be established between his conduct and the prohibited result. A man is usually held criminally liable only for the consequences of his conduct as he foresaw, (or is crimes of negligence, he ought to have foreseen).

The act must be the causa causans, ie, the immediate or proximate cause of the effect. When the facts are direct and simple, then establishing the causal nexus between the act and the effect may not be difficult, as for instance in a case of person shooting another person and thereby killing him. The causation can also be without any direct physical act. if the victim asks his way on a dark night and the accused with the intention of causing his death, directs him to a path that he knows will bring him to a cliff edge , and the victim suffers a fatal fall, this is clearly murder, though the accused has done nothing more than utter words.

This can be true in cases of abetment, incitement and conspiracy. In the instances stated above, it is not difficult to establish the direct result between the cause and the effect. The difficulty arises only in cases of multiple causation, where it is difficult to establish the imputability. Example: A, intending to kill B but only wounds him very slightly. A clearly has the requisite Men’s rea for murder, that is, he foresees and desires B’s death. Not let us assume that on his being taken to the hospital in an ambulance, a piece of masonry from a building falls on the ambulance and kills B; or, alternatively, that B has a rare blood disease which prevents his blood from coagulation so that the slight wound leads to his death, which it would not have done if he had not been suffering from this disease; or, alternatively, that B refuses to have the wound treated and dies of blood poisoning, which would not have occurred if B had had the wound treated.

In all these cases, a problem of causation arises, i.e., did A cause B’s death for the purposes of the criminal law so that he can be convicted of murder? If the result is too remote and accidental in its occurrence, then there is no criminal liability.

Causation and Negligence

The difficulty of causation arises very often in cases of negligence. It has to be established that first, the conduct of the person was negligent and secondly, that but for the negligent act of accused, the accident would not have occurred. In other words, the actus reus should be causally connected to the act, which should be proved to be a negligent. In order to impose criminal liability, it is essential to establish that death is the direct result of the rash or (and) negligent act of the accused.

Minimal CausationWhen death of a person is caused after medical treatment, it cannot be said that the treatment was not proper or inadequate, or had better treatment been given, the death would not have taken place. This is because, the intervention of the doctor is in the nature of minimum causation and hence its intervention would have played only a minor part, if any, in causing death. As far as the Penal Code is concerned, explanation specifically states that if an act causes death, even death could have been avoided by proper remedies and skilful treatment, the act shall be deemed to have caused death and the person will be criminally liable. If death results from an injury voluntarily caused, the person who causes the injury, therefore, is deemed to have caused the death, although the life of victim might have been saved if proper medical treatment, provided that it was administered in good faith by a competent physician or surgeon.

For example in an Indian case between Moti singh v state of uttar Pradesh the deceased gayacharan had received two gunshot wounds in the abdomen which were dangerous to life. The injury was received on February 1960. There was no evidence when he was discharged from the hospital and whether he had fully recovered or not. He, however, died on march 1 1960. His body was cremated without post mortem being done.

The supreme court held that the two gunshot injuries were dangerous to life were not sufficient for holding that gyancharans death, which took place about three weeks after the incident, was on account of the injuries received by him. The court observed that in order to prove the charges on gyancharans murder, it was necessary to establish that he had died on account of injuries received on him.

Since, the was no evidence to establish the cause of death, the accused could not be said to have caused the death of gyancharan. A crucial aspect highlighted by the court in the case was that the connection between the primary cause and the death should not be too remote.

Conclusion

Causation is a complex topic, with which we have been able to deal only brief here. Proof of causation is often said to be an essential precondition of criminal liability, but there is reason to doubt the generality of that requirement, notably in respect of accomplice liability and vicarious criminal liability. Rather than insisting on a universal requirement of causation, it may be preferable to argue that liability should be negative, in general, by the voluntary intervening act of another. Several criticisms of the judicial approach to three exceptional categories of case have been advanced above. Often the explanations given by the courts are unconvincing. Whilst the traditional or standard causal theory emphasizes the significance of the last voluntary act, there is no reluctance to look wider or to massage the term ‘voluntary’ in certain situations, especially where D clearly stated that the sequence of events by doing a wrongful act. The challenge is to re-examine the intuitions that lead judges and others to their conclusions (the wrongful act theory, the approach to medical mistakes etc. ) with a view to constructing a law that ensures that the courts respect the various principles .

There is an assumption in law that Men’s rea is required before a person can be held guilty of a criminal offence.” Men’s Rea is still used as a basis for the law today. Though in actuality, the exact meaning has changed. The modern meaning of Men’s Rea used today is narrower. Men’s rea describes the state of mind or inattention that, together with its accompanying conduct, the criminal law defines as an offense. In more technical terms, the Men’s rea of an offense consists of those elements of the offense definition that describe the required mental state of the defendant at the time of the offense, but does not include excuse defenses or other doctrines outside the offense definition. So the original meaning differs in essence to the one we use today. This meaning is more appropriate for the world we live in.

ReferencesBrown, D. K. (2012). Federal Men’s Rea Interpretation and the Limits of Culpability’s Relevance. Law & Contemp. Probs., 75, 109.

Durland, L. (2009). Overcoming the Persecutor Bar: Applying a Purposeful Men’s Rea Requirement to 8 USC Sec. 1101 (a)(42). Hamline L. Rev., 32, 571

Moohr, G. S. (2010). Playing with the Rules: An Effort to Strengthen the Men’s Rea Standards of Federal Criminal Laws. JL Econ. & Pol’y, 7, 685.

Moore, N. J. (2010). Men’s Rea Standards in Lawyer Disciplinary Codes. Geo. J. Legal Ethics, 23, 1.

Walker, A. (2011). Hidden Flaw in Kiobel, Under the Alien Tort Statute the Men’s Rea Standard for Corporate Aiding and Abetting is Knowledge, The. Nw. UJ Int’l Hum. Rts., 10, 119.