ELEMENTS OF A CRIME:

ACTUS REUS & MENS REA

Mens rea and actus reus
 The fundamental principle of criminal liability is that there must
be a wrongful act- actus reus, combined with a wrongful
intention- mens rea.
 General principle: a person is not criminally liable for an offence
unless it is established that he committed the offence, or omitted
the act, voluntarily and with a blameworthy mind.
 Principle is embodied in the maxim, actus non facit reum nisi
mens sit rea.
 Meaning: an act does not make one guilty unless the mind is also
legally blameworthy
 Emma d/o Mwaluko v. R (1976) LRT 197: in a criminal charge,
the two ingredients (actus reus and mens rea) must be proved.
Actus Reus and Mens Rea
 Actus reus: The outward conduct which must be
proved against the defendant; i.e. that a certain
event or state of affairs, which is forbidden by the
criminal law, has been caused by his conduct
(act/omission).
 Mens rea: The state of mind which defendant
must be proved to have had at the time of the
relevant conduct; i.e. that the conduct was
accompanied by a prescribed state of mind.
Actus Reus
The actus reus includes all the elements in the definition
of the crime except the accused’s mental element;
Hence the actus reus is not merely an act.

Actus reus may be made up of:

i) conduct (act or omission);
ii) sometimes its consequences (results);
iii) the circumstances which caused the conduct, i.e. the state of
affairs.
Actus reus
 Conduct crimes: require only some prohibited act
or omission
 Do not require evidence of any result
 E.g. perjury – committed as soon as the defendant
makes a statement on oath which he does not
believe to be true
 Simple assault – no requirement of harm
(contrast assault occasioning actual bodily harm)
Actus Reus

Result crimes –It must be proved that the accused’s

conduct had a particular result:
Murder: that the accused’s conduct caused the
death.
Obtaining property by false pretences: property is
actually obtained through use of false pretences.
Situational crimes –neither an act nor a
consequence is necessary, but merely a state
of affairs or circumstances, e.g:
being in possession of illegal drugs;
being found in the U.K. : Larsonneur
(1933).
Actus Reus

The whole of the actus reus must be proved.

Therefore important to break down an “act” into the
constituent parts of:
i) the conduct;
ii) the surrounding material circumstances; and
iii) the consequences.
Actus Reus
 Circumstances are relevant where they are included
in the definition of the crime.
 Theft: it must be proved that D dishonestly
appropriated property belonging to another.
o Bigamy: the fact that D is validly married.
o Handling stolen goods: that the goods have, in fact,
been stolen.
o Rape: state of mind of victim is relevant, i.e. that
victim did not consent to the act of intercourse.
Contrast murder: consent of victim is irrelevant.
Actus Reus

A crime may be made up of various constituent parts.

E.g. burglary: s. 304 Penal Code
i. Breaking and entering

ii. Dwelling house

iii. In the night

iv. With intent to commit a felony therein (mens rea)

Voluntariness
Voluntariness (The Conduct must be Willed)
 A person is not generally criminally responsible for

an act or omission unless it is voluntary.

 S. 9 (1) Penal Code: Subject to the express

provisions of this Code (relating to negligent

acts/omissions) a person is not criminally
responsible for an act or omission which occurs
independently of the exercise of his will, of for an
event which occurs by accident.
Automatism
Lord Denning in Bratty v. A-G, Northern Ireland
(1963)
 An act done by the muscles without any control by

the mind: e.g. a spasm, a reflex action or a

convulsion; or
 An act done by a person who is not conscious of

what he is doing such as an action done whilst

suffering from concussion, or whilst sleepwalking.
Cases in Automatism
 Fraser (1878) – man killed girl in his sleep
 Scott (1967) – acts done while suffering from

concussion
 Charlson (1955) – man causing grievous bodily harm

to his small son while suffering from a cerebral

tumour
Ryan (1967) – reflex action?
 R v. Matengula 5 NRLR 148 – the supernatural?

Article: Winnifred Holland, “Automatism and Criminal

Responsibility” (1982-83) Criminal Law Quarterly 95
Causation
 Causation is relevant in “result” crimes, i.e. when
actus reus of an offence requires the occurrence of
certain consequences.
 Hence necessary to prove that it was the conduct of
the accused which caused those circumstances to
occur.
 E.g. in murder/manslaughter, it is necessary to prove
that the act of the accused caused the death.
 If death came about solely through some other cause
then the crime is not committed.
Rules of Causation

1. Factual causation must be established.

“But for” test: White [1920] 2 K.B. 124;
i.e. the prohibited result would not have happened,
but for the act or omission of the defendant
Rules of Causation
2. Legal causation must also be established.
 E.g. A invites B to her house and B is murdered on the way.
Q: Is A guilty of murder? Did A cause B’s death?
 The D must have performed a culpable act. Dalloway
(1847).
 In a “result crime” the culpable act must have caused the
result.
 In a “conduct crime”, the culpable act is the culpable
element in the conduct.
Rules of Causation

3. Actus Novus Interveniens – absolves D of responsibility:

This is an act or event which intervenes to absolve D of
liability.
In murder/manslaughter cases, D is not responsible for death
where V dies as the result of some subsequent act/event
which would have caused death even if D had not inflicted
the injury on V : White (1920)
However, not every intervening act/omission of a causal
nature will relieve D from liability.
Rules of Causation
 De minimis principle
 D’s acts must be a ‘substantial cause’ – more than a
negligible cause
 Substantial factors test:
 different people inflicting wounds on a person, one
wound leading to death while the other is a mere
injury;
 a person talking to a dying man increasing his
exhaustion and therefore accelerating his death;
Rules of Causation
a) Is the injury inflicted by D “an operating cause” or “substantial cause” of
V’s death?
 Cheshire (1991) – D shot V in the thigh and stomach whilst they were
arguing in a fish and chips shop. V died not of the wounds but of a
tracheotomy performed while in hospital to help him breathe. D’s
conviction for murder was upheld.
 R v Smith [1959] D, a soldier, got in a fight at an army barracks and
stabbed another soldier. Injured soldier was taken to the medics but was
dropped twice on route. The soldier died. Conviction of murder upheld as
stab wound was an operating cause of death.
 Contrast: Jordan (1956): Stab wounds were already healing but death
caused by palpably wrong treatment.
Rules of Causation
 R v. Mwagambo s/o Gishodi (1941) 8 EACA
Wounds inflicted by D on V. Death as a result of
sepsis from wounds. Wounds were drained instead of
being stitched.
Q: whether D caused death.
 Held: conviction of murder upheld as no evidence
that dresser acted unreasonably or that the stitching
caused the sepsis which caused death.
Rules of Causation
b) Intervening act/event may be a natural consequence of D’s
act, i.e. foreseeable as likely to occur in the natural course
of events.
Eg:D strikes V on the seashore and leaves him unconscious
whereupon an incoming tide drowns him.
But if act/event is not natural consequence of D’s act, then
D is not liable.
Eg:D renders V unconscious and leaves him in a building
which then collapses in an earthquake.
Rules of Causation
c) Acts of victim may break the chain of causation:
Williams (1992): V, a hitchhiker, having been threatened by
Ds, jumped out of their car and died of his injuries. Ds’
conviction for manslaughter quashed. V’s act amounted to
a novus actus interviens.
 However, courts more likely to apply rule that D must
“take his victim as he finds him”: thin skull rule: Blaue
(1975) – refusal of blood transfusion
 See also Holland (1841) – refusal of amputation
Omissions
Omission – a failure to take action where action is required by the law.
General common law position – rarely punished omissions.
E.g. watching a person drowning – moral v. legal duty
But law imposes a duty to act in some instances, i.e.
 Parent/child relationship: e.g. if a parent/guardian watches his child

drown without doing anything to prevent it - Gibbins & Proctor

(1918)
 Contractual duty: Pittwood (1902) – gatekeeper at a railway

crossing
 Where a grtuitous duty is undertaken: Instan (1893)
Omissions
NB: There must be a legal duty to act.
Njenga v. R [1980] KLR 89 (omission to take
appropriate precautions against fire)
R v. Nassa Ginners Ltd (1955) 22 EACA 434;
Duties under the Penal Code

S. 216 – Duty of persons having charge of others (e.g.

children/psns of unsound mind/sick people) to provide the
necessaries of life.
S. 217 – Duty of master/mistress to servant or apprentice under
16 to provide food, clothing & lodging.
S. 218 – Duty of persons doing dangerous things to have
reasonable skill & take reasonable care.
S. 219 – Duty of persons in charge of dangerous things to take
reasonable care and precautions.
Above persons deemed to have caused any consequences which
adversely affect the life/health of others due to omission to
perform their duty.
Mens Rea
 This is the mental element of the crime.
 Mens rea refers to the state of mind expressly or impliedly
required by the definition of the offence charged.
 This varies from offence to offence.
 The mens rea required for an offence normally relates to the
consequences or circumstances or both required for the actus
reus of the offence.
 N.B. Mens rea does not necessarily mean an evil mind, moral
fault, or even knowledge of wrongfulness of the act.
Mens Rea
 The mental elements of different crimes differ
widely, Eg:
 Murder – an intention unlawfully to kill or cause
grievous bodily harm.
 Theft – acting “dishonestly” and with the intention of
permanently depriving another of property.
 Manslaughter – can sometimes denote mere
blameworthy inattention.
Mens Rea
 Mens rea is not always required for criminal liability,
e.g. in offences of strict liability.
 However, there is a presumption that mens rea is a
necessary element of a crime unless the contrary is
proved.
 Hence, unless a statute clearly or by necessary
implication rules out mens rea as a constituent part of
a crime, a court should not find a person guilty of a
criminal offence unless he has a guilty mind. Sweet
v. Parsley [1970] A.C. 132.
Mens Rea
It is necessary to distinguish between the following
different mental attitudes, namely:
 intention

 recklessness

 negligence.

Range of guilt – intention strongest, negligence least

strong
Intention
a) Intention (Intent)
 Sometimes mens rea of an offence requires intention, e.g. doing

something “intentionally” “with intent to”, “wilfully”.

NB: Intention is distinct from motive or desire.
 Motive is the reason for acting. E.g. if P kills V with great

regret in order to take his money, P’s intention is to kill V while

his motive is to take V’s money. Motive is generally irrelevant.
 S. 9 (3) PC. Unless otherwise expressly declared, the motive

by which a person is induced to do or omit to do an act, or to

form an intention, is immaterial so far as regards criminal
responsibility.
Intention
Mohan [1976] 1 Q.B. 1; [1975] 2 All E.R. 193 - defined
intention as a decision to bring about, in so far as it lies
within the accused’s power, a particular consequence, no
matter whether the accused desired that consequence of his
act or not.
 A person is also said to intend the consequence of his actions

if he wants it to happen, whether or not it is likely to happen.

E.g. if D shoots at V wishing to kill V and he misses, he will
be guilty of attempted murder.
 Intention may be either direct or oblique.
Intention
 Direct Intention: This is where a person has
decided to achieve a certain consequence.
 E.g. Defendant wishes to kill the victim.
 He aims a gun directly at the victim's head and
pulls the trigger.
 Here the defendant has the direct intention to kill
the victim.
Intention
Oblique Intention
 A person may intend the consequence of his act even if

he does not necessarily want that consequence to happen,

where he knows that the consequence is virtually certain
to happen, e.g. blowing up an aeroplane simply in order
to claim insurance on the cargo, causing the death of the
crew and passengers.
 S. 9 (2) P.C. – Unless the intention to cause a particular result
is expressly declared to be an element of the offence the result
intended to be caused by an act or omission is immaterial.
Intention
 Foresight: A person is deemed to intend the natural
conseqences of his actions.
 R v. Augen s/o Manyakutana (1948) 15 EACA 95:
striking a person’s head with a heavy blunt object.
 RC v. R [2005] 2 KLR 239: murder of child by a minor
through strangling.
 Inference: Intention may be inferred from facts and
surrounding circumstance.
 Hamisi Oforo v. R (1984)
 Ismail bin Farah v. The Queen [1956] 29 KLR 183.
Intention
Specific intention
 This is the specific mens rea required for the offence:

 Steane [1947] – a man who made broadcasts for Germany

during WWII in order to save his family was acquitted of

offence “doing an act likely to assist the enemy with intent to
assist the enemy” as the court found that he lacked the
necessary intent.
 In murder, intoxication may be used to show that D was too

drunk to form the specific intent, i.e. to cause death or

grievous bodily harm.
Intention
 Basic intention: mens rea required is directly related to
the actus reus. E.g. in murder – intention to cause death
or cause grievous bodily harm.
 Ulterior intention: where there is an additional mens
rea requirement of the crime which is not directly related
to an ingredient of the actus reus.
E.g. S. 304 P.C. – Burglary: breaking and entering a
building used as a human dwelling with intent to commit
a felony. Not enough to have intent to enter the dwelling
but in addition D must intend to commit a felony.
Intention
Transferred malice (transferred intent)
 Where the D by mistake or bad judgement causes injury

to the wrong person or wrong property, he may still be

guilty of the offence.
 E.g. if D shoots at A in order to kill him but the bullet

misses A and kills B instead, D will still be convicted of

killing B although he did not intend to kill B. E.g:
Latimer (1886)
 But mens rea will not necessarily transfer from one

offence to another. E.g: Pembliton (1874)

Recklessness
Recklessness
 This is the taking of an unjustified risk.

 E.g. a person who drives at 80 kph on a busy residential street

fully conscious that at any time, someone might step off the
pavement and onto the road.
Okwisia v. R [1987] KLR 155
Seidi v. R [1969] EA 280
 However, not all taking of risk is unjustified, e.g. a surgeon

who performs a major operation, well aware of the great risks

involved, does not act recklessly if he/she operates to save life
or limb.
Recklessness
 Recklessness is the necessary mens rea for many
offences, e.g. arson, assault, rape.
 Adverbs used: recklessly, maliciously.
 The degree of risk differs from offence to offence.
 Recklessness may be in respect of acts,
circumstances and consequences.
 Recklessness may be subjective or objective.
Recklessness
Subjective recklessness (Cunningham recklessness)
 the conscious taking of an unjustified risk, foreseeing that a

particular harm might be done, yet going on to take the risk.

 Standard of recklessness is that of the accused himself. It is

the less controversial standard.

 Cunningham (1957): Test: whether accused had foreseen

that the particular kind of harm might be done, and yet had
gone on to take the risk of it.
 Test in Cunningham was used in Stephenson [1979] QB 695
Recklessness
Objective recklessness (Caldwell Recklessness)
 Standard is not that of the accused himself but of the

reasonable man (person).

 Test was given in Metropolitan Police Commr v.

Caldwell (1981).
 Followed in Elliott v. C (1983):

 Caldwell was finally overruled in 2003 in G & Another.

House of Lords rejected objective test in Caldwell and

returned to subjective test in Cunningham.
Negligence
 Negligence refers to the objective standard against which the
acts of the D are measured: standard of the reasonable
man/person.
 A person is negligent if his conduct in relation to a risk, of
which a reasonable person would have been aware, falls
below the standard which would be expected of a reasonable
person in respect of that risk.
 Common phrases: “ought to know” “reasonable cause to
believe” “reason to believe” “reason to suspect”.
 Degrees of negligence: careless driving – negligence;
dangerous driving - gross negligence: See: Adomako (1994):
Negligence
 Difference between negligence and recklessness:
Negligence does not require D to foresee or be aware of the risk in
question.
Kiilu & Another v. R [2004] 1KLR 467: Test of a reasonable man.
 Eg: In vast majority of traffic offences – Q is not whether D
foresaw or was aware of risk but whether he ought to have
foreseen.
 NB: Evidence of D’s state of mind is not a prerequisite to a finding
of negligence.
 Negligence therefore not strictly a state of mind – but is
traditionally classified under mens rea.
Knowledge

Knowledge
 Often considered alongside intention

 Whereas intention is usually descriptive of the state

of mind as to consequences (e.g. I intend to kill),

knowledge is usually used in relation to
circumstances (e.g. importing substance knowing it is
prohibited; or possessing goods knowing they have
been stolen)
Strict Liability
Strict liability
 Offences which do not require proof of mens rea in

respect of one or more elements of the actus reus

are known as crimes of strict liability.
 Thus accused may be criminally liable although his

conduct was not intentional, reckless or negligent.

 However, liability is not absolute, and general

defences will normally apply.

Strict Liability
 Presumption that mens rea is required:
 Sweet v Parsley: appellant was convicted of being
involved in management of premises used in the
smoking of cannabis.
 Appeal was allowed as mens rea was essential
unless the statute expressly excludes mens rea as
part of the offence.
 Abdu & Another v. R [1971] EA 198.
Strict Liability
Prince (1875):
 Accused was charged with abducting a girl under

16 years without parental authority contrary to the

Offences Against the Persons Act 1861 s. 55. His
defence was that he thought the girl was over 16.
 Held: Conviction was upheld since strict liability

applied in relation to the girl’s age. (Parliament’s

intention was to give absolute protection to young
girls.)
Strict Liability
Cundy v. Le Cocq (1884)
 The accused, a licensee, was charged with selling

intoxicated liquor to a drunken person contrary to the

Licensing Act 1872.
 He was convicted although he was not aware that the

person he was serving was intoxicated.

 Held: Parliament had placed a strict liability on the

licensee and the words of the section amounted to an

absolute prohibition on the sale of alcohol to the drunk.
 Examples:
 Offences under Narcotic Drugs and Psychotropic
Substances Act
 Banking Act
 Other regulatory statutes
Vicarious Liability
Vicarious liability: this is where the acts of one person will be
attributed to another.
In general criminal liability is personal, and a person is generally
not liable for crimes committed by another. Exceptions:
i) an employer can be held to be strictly liable for the acts of his
employee. E.g. in offences of strict liability, the words
“sell/use/possess” may be interpreted as applying both to the
person who does the act and to the principal on whose behalf he
is acting. Nzoli v. R [1951] E.A. 575 (K)
ii) delegation principle – a manager of premises may be convicted
on the basis of acts of someone to whom he had delegated
responsibility.