Criminal liability in English law is defined by the Latin maxim “Actus non facit reum nisi mens sit rea”, which means that there can be no criminal liability without a guilty mind and a guilty act. In this formula, a guilty act means a wrongful act and a guilty mind is a proven intention of a person to commit a crime. The Draft Criminal Code Bill introduces the terms external element and fault element, respectively. Currently, some English lawyers are proposing to replace Latin words with the terms state of mind and prohibited conduct (Molloy & Card, 2016).
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The principle of English law provides that a person is not criminally liable for their actions if they lack a criminal mental state. The mental state for criminal liability in the English law is traditionally referred to with the Latin term mens rea, and the material elements of the crime are referred to as actus reus. The general principle of English criminal law is that a person cannot be convicted of a crime if the prosecution cannot prove these two elements beyond a reasonable doubt (Keiler, 2019). Thus, without two elements, material and mental, there can be no crime and no criminal liability.
Actus reus is a crime only when it is accompanied by the corresponding mens rea. The mere discovery of criminal intention, not supported by a criminal action or omission, should not entail criminal liability. Exceptions to this rule include, under certain conditions, an attempt to commit a crime, incitement to commit a crime, and conspiracy to commit a crime (Garvey, 2020). The basis of actus reus is an “action” of committing a crime. Actus reus is defined as an action (sometimes failure to act, inaction, or omission) that constitutes a specific crime and includes:
- criminal conduct,
- any related circumstances (other than those relating to the mens rea of the accused), and
- the consequences of this action). However, the definitions of some crimes contain more detailed descriptions of prohibited conduct, while those of others are less detailed.
Only an action committed voluntarily or by omission is considered an offense. Thus, a person is not criminally liable for an act committed automatically. For example, when the accused hurts someone or causes harm during sleep or under the influence of their mental or physical illness, or other external circumstances, they are considered not guilty of a crime. Notable cases include R v Quick in 1973, Leicester v Pearson in 1952.
The difference between intention and recklessness in the criminal law
English criminal law does not contain specific description of the different forms of mens rea. The analysis of the English judicial practice, however, shows that typical forms of mens rea are intention, recklessness, and negligence. Although court decisions often refer to “intention” to commit a crime, the legal concept of intention is not clearly defined. The House of Lords has attempted in some of its decisions to distinguish between “intention”, “motive,” and “reason or purpose”, but there is, nevertheless, no uniform definition of “intention” and other forms of mens rea (Child, 2017). Presently, the discussion of intention in the decision of the House of Lords in the 1985 R v Moloney, who was found guilty of the murder of his stepfather by the Court of Appeal, is used as a precedent for other cases.
It is generally accepted that the intention of an act (whether or not a specific legal rule requires it) does not need to be specifically proven since there is a presumption that wrongful acts committed by a sane and reasonable person are always the act of his or her will. The burden of rebutting this presumption lies with the accused. Consequently, in determining intention in English law, the will and state of mind of the perpetrator are brought to the fore (Child, 2017). The act is intentional if it is the result of the will when the person expects and wishes certain consequences to occur. If the person has a purpose, the act is intentional, even when they know that the chances of committing a crime are low. The absence of such a purpose indicates that the person acts unintentionally, even if they know that the chances of committing a crime are high.
Recklessness is fundamentally different from intention, as, although it implies certain foresight about consequences, it does not imply a desire to achieve them. Following the 1957 decision of the Court of Criminal Appeal in the Cunningham case and the 1981 ruling of the House of Lords in the Caldwell case, English law distinguished between two types of recklessness: subjective recklessness and objective recklessness (Cowley & Krebs, 2020). However, objective recklessness was later abandoned by English courts.
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Subjective recklessness means that when a person deliberately allows an unjustifiable risk to occur, they anticipate that certain consequences may result from their actions and have no reason to believe that the risk will not occur. However, mere anticipation that certain consequences may result from the act is not sufficient for subjective recklessness. It is considered that a person acts with subjective recklessness when it can be proven that they realize the risk of adverse consequences (Stark, 2016). The objective recklessness implies that any sane and reasonable person in the same circumstances would recognize the danger of their actions. The objective approach to recklessness was subsequently harshly criticized as unfair and immoral, and, finally, it was rejected by the House of Lords in the 2004 R v G case.
Child, J. (2017). Understanding ulterior mens rea: future conduct intention is conditional intention. The Cambridge law journal, 76(2), 311-336.
Cowley, C., & Krebs, B. (2020). Special issue on recklessness and negligence. Criminal law and philosophy, 14(1), 5-8.
Garvey, S. P. (2020). Guilty Acts, Guilty Minds. Oxford University Press, USA.
Keiler, J. (2019). Actus Reus and Mens Rea: The elements of crime and the framework of criminal liability. Comparative concepts of criminal law, (3), 107-120.
Molloy, J., & Card, R. (2016). Card, Cross and Jones criminal law. Oxford University Press.
Stark, F. (2016). Culpable carelessness: Recklessness and negligence in the criminal law. Cambridge University Press.