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The recipe will contain ingredients general to all cakes. There are three such elements, namely a shortening agent such as fat or oil, a raising agent such as eggs or baking soda, and finally some form of farine such as flour.
In addition, the recipe will contain ingredients which are specific to the cake you wish to make. There is an unlimited variety of such ingredients; for example a fruit cake contains dried fruit, sugar, spices and molasses. The constituents of every human-made product can be approached in this way. Thus a residential house also contains three essential ingredients, namely foundations, structure and a roof.
Again, the specifics of the house may vary enormously. The structure may be made of wood, bricks, concrete, metal, plastic or glass, while the roof may be made of stone, pottery, wood or dried vegetation. The criminal law, as a human-made product like cakes and houses also contains these general elements or building blocks. The basic elements of a cake or house are designed primarily to make the product fit for purpose, and the essential elements of a crime are similarly designed.
The purpose they are fitted for is to provide clear rules of conduct and a secure and fair basis for punishment. In criminal law these basic elements are prohibited conduct the external element , and an accompanying mental element the internal element. Again, the specifics of a crime may vary enormously.
The prohibited conduct may consist of snatching someone s handbag, hacking into their computer, poisoning their dog or even killing them. The mental element may be intention, recklessness, wilfulness or knowledge.
As a student of criminal law, your job when analysing a case is always therefore to ask the following questions in the following order. Has the accused performed a prohibited act? Was that act accompanied by a specified state of mind or mental element? Its usual translation is an act is not criminal in the absence of a guilty mind ; or, more analytically, criminal liability requires D to have done something criminally wrong actus reus with an accompanying blameworthy state of mind mens rea.
When reading textbooks and cases you will find different words and phrases used to describe the conduct and mental elements in crime. There is no magic in any of these words or phrases, and so at the outset you may find this short glossary of synonyms helpful. 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. In Section 4. We can then separate the actus reus from the mens rea. The actus reus is the prohibited act; that is, an unlawful killing. The mens rea is the accompanying. At Section 4. To analyse the problem you therefore ask the following questions. Has A unlawfully killed a human being? Answer, yes. Did he do so intending to kill or cause serious injury 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.
This package may prohibit simply acting in a particular way, as in the offence of careless driving, or it may prohibit bringing about a particular result, as in murder or manslaughter. It may also prohibit doing something, or bringing about something in particular circumstances, such as, in the crime of rape, having intercourse with another without their consent.
This can be represented as follows: The actus reus of a crime comprises conduct, with or without a designated result, including the presence of any circumstances necessary for that conduct to be criminalised Mens rea Liability for serious crimes requires proof that the accused was blameworthy in doing what they did.
This is because it is a fundamental ethical principle underpinning the criminal law that the state has moral authority to punish its citizens only if they deserve it. This moral principle that justice in punishment requires punishment to be deserved is known as the principle of retribution. This principle reflects how we go about things in everyday life.
In the home, for example, children who break vases, ornaments or windows tend not to be punished if the breakage was accidental, since punishment would be unfair. In the criminal law the blameworthy states of mind most commonly used to justify punishment are: 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, recklessly damages their property, dishonestly takes their property or knowingly buys and sells their stolen property is not only doing wrong: they also know they are doing wrong but do it nevertheless. Hence they deserve to be condemned and punished. Another is prevention.
Utilitarian theorists believe that punishment can never be deserved because it involves harming people and two wrongs do not make a right. The utilitarian justification for punishment is to reduce the incidence of anti-social and dangerous conduct through punishment s deterrent or preventive function. The contemporary view, which favours retribution, is that for stigmatic crimes such as are dealt with in this subject guide, prevention is not a moral justification for punishment as punishment for these crimes requires the defendant to be conscious of their wrongdoing.
One area where there is less unanimity is the law of criminal attempts see Chapter Where prevention comes into its own is with respect to those offences which have harm prevention rather than moral wrongdoing as their primary focus. Such offences often have a fault element which requires no conscious awareness of doing wrong: careless driving and gross negligence manslaughter are examples of these. Other crimes need no fault element at all. These are known as crimes of strict liability: most driving offences are of this nature.
Such offences are justified as being not contrary to principle because they do not tend to involve social stigma or carry imprisonment as a potential punishment 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 their act was wrongful, because they were, in the words of H. Hart, deprived of the capacity or a fair opportunity to conform to the prohibition Punishment and responsibility, 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 special circumstances.
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. She is charged with murder. A admits what she did but claims it was an accident.
In other words A is making a claim about her mens rea. She is saying that because the killing was an accident this means that she did not intend to kill or cause grievous bodily harm to B. The famous conclusion it reached was that the burden of proof did not pass to A, and never would.
People are assumed innocent until proven guilty. This means that in respect of all the elements of all offences the burden of proof is on the prosecution. So with respect to the actus reus the prosecution must do the proving, and it must prove every bit of the actus reus.
For example, the actus reus of the crime of rape is having intercourse with a person without their consent. This means that the prosecution must prove to the satisfaction of the jury both that sexual intercourse between the two parties took place and that the intercourse was non-consensual.
Again, with respect to the mens rea the prosecution must do all the proving. For example, in a case of theft of a wallet, the prosecution must prove that D took V s wallet intending never to return it; or in a case of handling stolen goods, that D knew or believed the goods she was handling were stolen goods. Finally, with respect to defences, again the prosecution must do the disproving.
For example, it must prove that D was not acting in self defence or was not acting under duress. Here, however, a slight qualification is needed. The prosecution does not bear this burden with respect to defences unless the defence first adduces some credible evidence that D may have been acting in self defence or under duress. In other words, the prosecution does not have to counter every defence the accused may possibly raise, but only those which are worthy of being taken seriously.
This evidential burden on the defence is not heavy, however; it is simply designed to ensure precious court time is not wasted proving the obvious Standard of proof Consonant with the principle that a person is considered innocent until proven guilty, the prosecution must prove each and every element of the offence beyond reasonable doubt. This means that the jury or magistrates must not convict unless the prosecution has made them sure that all the elements of the offence are present.
If, therefore, the jury is convinced that A took a handbag belonging to V actus reus and that the taking was dishonest mens rea and think that it is probable, but without being sure, that it was A s intention to keep the handbag permanently mens rea , it must acquit of theft.
Am I ready to move on? Are you ready to move on to the next chapter? You are if without referring to the subject guide or Wilson you can answer the following questions. What are the three elements which make up criminal liability? What does actus reus mean?
What does mens rea mean? What are crimes called where the prosecution does not have to prove mens rea? If D confesses to having committed a crime but claims he did so under duress, does D have to prove the duress?
There are two types of defences. Explain what they are and give examples of each. Dadson shot an escaped convict.