Law - Elements (paper 1)

What is the actual reus

It’s Latin for guilty act

its all the physical parts of a crime

What must an act be in order for it to be ‘guilty’

The action must be voluntary

What is an omission

Omission is a failure to act, this is the opposite of a positive act

Legally do you have to commit a positive act

The English Law doesn’t require a positive act this means that you aren’t legally liable for the consequences if you fail to act

When is an omission against the law

When you have a legal duty to act, but you fail to do so, you can be liable for not acting

When does the law give you a legal duty to act

Contractual duty - Pitwood

Special relationship- Gibbons & Proctor

Voluntary assumed responsibility - Gibbons & Proctor

Whe defendant creates a dangerous situation - Miller

What is men’s rea

Latin for guilty mind

All the mental elements of a crime

Thee are two types: intention & recklessness

What is intention

Direct intention (seen in Mohan): where it is obvious the defendant intended for the outcome

It is their desire, aim and purpose to bring that result

Indirect intention: where it isn’t obvious what the defendant intended

The case of Woolin shows the virtual certainty test would need to be used

1) was death or injury a virtual certainty test

2) did the defendant realise this

What is recklessness

The case of Cunningham shows this to be when the defendant sees an unjustified risk, but takes the risk anyway.

This is subjective to the defendant

What is transferred malice

Where malice is transferred Formosa the intended victim to the actual victim (shown in Latimer)

The case of Pembilton shows, malice can only be transferred between similar crimes, person to person or object to object

What is the coincidence rule

Most of the time the actual reus and men’s rea coincide as they occur at the same time, however sometimes they don’t

The case of Church shows the coincidence rule to be, that as long as the acts reus and mes rea happen at some point, the crime will be complete, as they are a continuing act

What does strict liability not require

They do not require a men’s rea, the defendant will be guilty of the crime as long as they committed the actual reus

Why are the Gammon guidelines used

To help a judge decide whether a crime is a strict liability offence or not

What are the gammon guidelines

The crime is not a strict liability if:

Men’s Rea words are used (e.g. intention, knowingly, reckless)

The crime is truly criminal (e.g. murder)

There is a penalty of prison

The crime is a strict liability if:

The offence covers issues of social concern (e.g. drinking)(harrow v shah)

The offence is regulatory (pollution)

Advantages of strict liability

Protection of the public

Easier to prosecute as the defendant usually pleads guilty saving the court time

Forces businesses to raise the standards

What are the disadvantages of strict liabilty

Unfair on the defendant, as they didn’t have the men’s rea

No evidence that it actually raises standards

A conviction could ruin their reputation