Introduction
In the criminal law of England and Wales, the foundation of liability for most offences rests upon the Latin maxim actus non facit reum nisi mens sit rea, which translates to ‘an act does not make a man guilty of a crime unless his mind is also guilty’. This principle establishes the two core elements that the prosecution must typically prove beyond reasonable doubt: the actus reus (guilty act) and the mens rea (guilty mind). While these concepts are distinct, they are fundamentally connected. This essay will explain the components of actus reus and mens rea, before discussing the crucial relationship between them, including the principles of correspondence and contemporaneity.
The Actus Reus
The actus reus refers to the external or physical element of an offence. It encompasses all aspects of a crime that are not related to the defendant’s mental state (Herring, 2022). The precise actus reus varies for each offence but can be broken down into three potential parts: conduct, circumstances, and result. For example, the actus reus of theft requires the 'appropriation' (conduct) of 'property belonging to another' (circumstances).
Conduct is most often a positive act, but can also be an omission, or failure to act. However, liability for an omission is exceptional and will only arise where the law recognises that the defendant was under a duty to act. Such duties can arise from statute, a contract, or through common law, for instance, from a special relationship, as seen in R v Stone and Dobinson [1977] QB 354 where the defendants were found to have assumed a duty of care for a vulnerable relative.
Where an offence is a 'result crime', such as murder, the prosecution must also prove that the defendant’s conduct caused the prohibited result. This involves establishing both factual and legal causation. Factual causation uses the ‘but for’ test: but for the defendant’s conduct, would the result have occurred? (R v White [1910] 2 KB 124). Legal causation requires the defendant’s act to be an ‘operating and substantial’ cause of the result, meaning it need not be the only cause, but must be more than minimal.
The Mens Rea
The mens rea is the internal or mental element of an offence, often described as the defendant's 'guilty mind' or fault. It ensures that only blameworthy individuals are punished. The two main forms of mens rea are intention and recklessness. Some statutory offences may use other terms like 'knowledge' or 'belief', or require no mens rea at all (strict liability).
Intention is the most serious level of mens rea. It can be direct, where the defendant acts with the aim or purpose of bringing about the prohibited consequence. It can also be oblique (or indirect), where the consequence was not the defendant's purpose but was a virtually certain result of their actions, and the defendant appreciated this virtual certainty. This test was established in R v Woollin [1999] AC 82.
Recklessness is a lower level of fault. The test for subjective recklessness was set out in R v Cunningham [1957] 2 QB 396, where it was held that a defendant is reckless if they foresaw a risk of the prohibited consequence occurring and went on to take that risk unreasonably. This focuses on what the defendant themselves foresaw, not what a reasonable person would have foreseen.
The Relationship Between the Elements
For a person to be found guilty of a crime, the actus reus and mens rea must be proven and must generally correspond and coincide. The ‘correspondence principle’ suggests that the mens rea for an offence should relate to the specific actus reus of that same offence. For instance, for a conviction of criminal damage, the defendant must intend or be reckless as to damaging property. However, this principle is not always followed, particularly in offences of strict liability, where no mens rea is required for at least part of the actus reus, such as selling a lottery ticket to a person under 16 (Harrow LBC v Shah [2000] 1 WLR 83).
Furthermore, the ‘contemporaneity principle’ requires that the actus reus and mens rea occur at the same time. The courts have shown flexibility in applying this rule to avoid unjust outcomes. In cases involving a series of acts, they may be treated as a single transaction, as in Thabo Meli v R [1954] 1 WLR 228. Alternatively, where the mens rea is formed after the initial act, the courts might find a 'continuing act', as in Fagan v MPC [1969] 1 QB 439, where the defendant accidentally drove onto a police officer’s foot (the actus reus) but then deliberately refused to move, at which point he formed the mens rea.
Conclusion
In summary, the actus reus and mens rea are the essential building blocks of criminal liability. The actus reus represents the prohibited external conduct, circumstances, or result, while the mens rea represents the internal state of mind required for culpability. Although they are distinct concepts, they cannot be viewed in complete isolation. The legal principles of correspondence and contemporaneity demonstrate that they are intrinsically linked, ensuring that a defendant’s blameworthy state of mind is connected to the wrongful act they have committed. Understanding this fundamental distinction and relationship is therefore essential to the study of substantive criminal law.
References
- Herring, J. (2022) Criminal Law: Text, Cases, and Materials. 10th edn. Oxford University Press.
- Fagan v MPC [1969] 1 QB 439.
- Harrow LBC v Shah [2000] 1 WLR 83.
- R v Cunningham [1957] 2 QB 396.
- R v Stone and Dobinson [1977] QB 354.
- R v White [1910] 2 KB 124.
- R v Woollin [1999] AC 82.
- Thabo Meli v R [1954] 1 WLR 228.
